The Friends of Finsbury Park, R (on the application of) v Haringey London Borough Council & Ors

Section 145 of the Local Government Act 1972 empowers a local authority to enclose or set apart any part of a park for an entertainment and to permit another person to use that area on terms, including admission charges. In its statutory context, the power to enclose inherently permits the authority to exclude non-paying members of the public.

That power applies to London boroughs. It is separate from, and cumulative upon, the more limited powers in article 7 of the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 and section 44 of the Public Health Acts Amendment Act 1890. The maxim generalia specialibus non derogant does not confine section 145 where the provisions create distinct powers with different scope and restrictions.

The Council held Finsbury Park on a statutory trust for public enjoyment as an open space. It decided, purportedly under section 145 of the Local Government Act 1972, to hire part of the Park to Festival Republic for the Wireless Festival 2016, a commercial ticketed music festival. The festival required temporary closure of part of the Park to the general public.

The Friends of Finsbury Park sought judicial review. Supperstone J granted permission but dismissed the claim, holding that section 145 authorised the hire: [2016] EWHC 1454 (Admin). Permission to appeal was granted on the sole issue whether section 145 gave that power.

The central issue was whether section 145 permitted a London borough to enclose and hire part of a statutory public park for such an entertainment, notwithstanding the temporal restrictions in section 44 of the Public Health Acts Amendment Act 1890 and the spatial restriction in article 7 of the 1967 Act.

1. Appeal dismissed. Hickinbottom LJ, with whom Singh and Treacy LJJ agreed, held that the Council had power under section 145 of the Local Government Act 1972 to hire part of the Park for the festival.
2. Section 145(1) authorises what is necessary or expedient for an entertainment of any nature. Section 145(2) permits an authority to enclose or set apart any part of a park and to permit another person to use it on terms. In ordinary language, enclosing land means placing a barrier around it with a view to preventing access or egress. Read with the power to charge for admission, it necessarily permits exclusion of persons who have not paid. The additional express exclusionary wording in article 7 of the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 did not alter that construction.
3. Article 7 and section 145 were not competing provisions for the same state of facts. The 1967 Act applies to the wider category of open spaces and a broader range of facilities. Section 145 is directed to performing entertainments and applies expressly to London authorities. The statutory provisions also show that their powers are supplementary. Accordingly, the maxim generalia specialibus non derogant did not prevent a London borough from relying on section 145, and the Council could choose between the distinct powers in section 145, article 7 and section 44 of the Public Health Acts Amendment Act 1890.
4. The statutory trust and the public's ordinary right to free use of the Park did not remove that jurisdiction, because section 145 itself authorised enclosure of a park held on such a trust. The lawfulness of a particular exercise of the power remained reviewable on ordinary public-law grounds, including for frustration of statutory purpose or perversity. However, no challenge to the exercise of the power, as distinct from its existence, was before the court.

• Court of Appeal (Civil Division) — dismissed the appeal and upheld the Council's power under section 145 of the Local Government Act 1972: [2017] EWCA Civ 1831.
• High Court, Planning Court — Supperstone J granted permission for judicial review but dismissed the claim, holding that section 145 authorised the proposed festival hire: [2016] EWHC 1454 (Admin).