Muir, R (On the Application Of) v Wandsworth Borough Council

A local authority holding open-space land on statutory trust must exercise its leasing powers consistently with the statutory purpose of public use and enjoyment. Powers to provide or let facilities for public recreation do not authorise a long-term exclusive lease to a private nursery serving only an enrolled cohort of children. The character of the proposed use is determined by its principal purpose: extensive childcare for working parents is not transformed into recreation merely because children play or receive pre-school education. A power to provide facilities for clubs, societies or organisations does not generally authorise letting premises for the sole use of a commercial nursery operating a profit-making business.

The claimant sought judicial review of Wandsworth Borough Council’s decision to grant Smart Pre-Schools Ltd a 15-year lease of Neal’s Farm Lodge and Cottage on Wandsworth Common. The proposed use was a private nursery for up to 62 children, with opening hours designed to provide childcare for working parents.

The claimant argued that the lease was outside the Council’s statutory powers governing the Common and that the officer who made the decision lacked delegated authority. The Council relied principally on Articles 7 and 8 of the Greater London Parks and Open Spaces Order 1967, confirmed by the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967. The issues were whether the proposed nursery was a permitted facility for public recreation or for an organisation of recreational, social or educational character, and whether the decision had been validly delegated.

1. Ground 1 succeeded. The Council’s decision to grant the lease was not a lawful exercise of its powers under the Greater London Parks and Open Spaces Order 1967.
2. Under section 10 of the Open Spaces Act 1906, the Council held the Common on statutory trust for the enjoyment of the public. That trust applied to the buildings at Neal’s Farm as well as to the wider open space. The Council could not treat premises no longer needed for groundsmen as surplus property available for unrestricted disposal.
3. The headings and context of Articles 7 and 8 showed that their overall purpose was to provide and maintain facilities for public recreation. Articles 7 to 10 permitted reasonable charges and appropriate restrictions on access, but did not authorise facilities confined to a selected private cohort and unavailable to the public generally.
4. A private nursery providing childcare for up to 62 enrolled children was not an indoor facility for recreation under Article 7(1)(a)(v). Recreation had a broad meaning, but the nursery’s principal purpose was childcare for working parents. Play, education, rest and meals provided incidentally did not alter that character.
5. Article 7(1)(a)(vi) permitted facilities for the use of clubs, societies or organisations of a recreational, social or educational character. Applying the eiusdem generis principle, the provision referred to not-for-profit groups sharing a common interest. It did not cover a commercial organisation using the premises exclusively to provide profit-making nursery services. The Council had also misconstrued the statutory mechanism: a private operator could stand in the Council’s shoes to provide facilities for qualifying organisations, but could not simply take the premises for its own sole use and charge individual parents for its services.
6. The Council’s concession that funded childcare places might be offered did not cure the defect. The proposed facility would remain available only to a limited cohort, and the lease would prevent public use for 15 years. Article 11 did not assist because the proposed restrictions were contrary to the purpose and scope of Articles 7 and 8 themselves.
7. Ground 2 failed. The officer had authority under the Council’s Constitution and the relevant scheme of delegation. The decision was also recorded in a form satisfying the material requirements of the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012. Any remaining procedural failure would not have justified relief under section 31(2A)(a) of the Senior Courts Act 1981.