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

An indoor facility authorised under Article 7(1)(a)(v) must be wholly or mainly recreational. Incidental education does not prevent that character, but the mere occurrence of play or recreation does not authorise an otherwise educational or childcare service.

An organisation under Article 7(1)(a)(vi) is one analogous to a club or society, operating for members who share a common recreational, social or educational interest. A company providing services to clients or customers does not fall within that class. The court also indicated that the requirement that facilities be open to the public raises a question of fact and degree.

Wandsworth Borough Council proposed to grant a lease of premises on Wandsworth Common to a company operating a day nursery for up to 62 pre-school children. Mr Muir, whose competing proposal was for a school-based educational and recreational facility, sought judicial review.

Lang J declared the proposed grant unlawful: [2017] EWHC 1947 (Admin). Wandsworth appealed, contending that the nursery was authorised by Article 7(1)(a)(v) or (vi) of the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967. The central issue was whether the proposed nursery was an authorised recreational facility or a facility for the use of a qualifying organisation.

1. The Court of Appeal unanimously dismissed the appeal. Wandsworth therefore lacked power to grant the proposed lease for this nursery use under the relied-on provisions.

2. Article 7(1)(a)(v) authorises indoor facilities only where they are wholly or mainly recreational. A recreational facility is not disqualified merely because education occurs incidentally, including learning through play. However, it is insufficient that recreation may occur within a facility. The provision does not permit a local authority to provide a different public service merely by including a play area.

3. The proposed operation was properly characterised as a combined nursery school and day nursery. Its classroom structure, teachers and teaching assistants showed its educational character. Its all-day care for children while parents worked or were otherwise engaged went beyond recreation and education. Whether a facility meets the statutory description is a question of law for the court, not a matter left to the local authority subject only to reasonableness review.

4. Article 7(1)(a)(vi) concerns clubs, societies and analogous organisations run for the benefit of members sharing a common relevant interest. The court did not decide whether such an organisation must invariably be not-for-profit. Nevertheless, the company was not a qualifying organisation because it supplied nursery services to clients or customers rather than operating for members sharing such an interest.

5. The court did not need to determine whether the nursery was sufficiently open to the public. It held that public availability is implicit in Article 7, but whether restrictions on access cross the line is a matter of fact and degree. It also declined a concluded ruling on the interaction between Articles 8 and 10, or on whether reasonable charges are confined to cost recovery.

• Court of Appeal (Civil Division) Dismissed Wandsworth’s appeal and upheld the declaration that the proposed lease decision was unlawful.
• High Court of Justice, Queen’s Bench Division (Administrative Court) Lang J allowed Mr Muir’s judicial-review claim and declared the proposed lease decision unlawful: [2017] EWHC 1947 (Admin).