Sean David Wilkinson, R (on the application of) v London Borough of Enfield

A local authority may use its general power under section 123 of the Local Government Act 1972 to grant a lease of public open space, provided it complies with section 123(2A). The disposal then frees the land from a statutory public trust under section 123(2B). Article 20 of the Greater London parks legislation means that its powers supplement, rather than exclude, the general disposal power.

A prior appropriation under section 122 is not required merely because the proposed lessee will use the land for a purpose different from the authority’s former use. The statutory trust is not equivalent to a private trust and does not necessarily impose a fiduciary duty to reinvest disposal proceeds in the remaining open space.

The claimant sought judicial review of Enfield’s decision to enter into a 25-year agreement for lease of part of Whitewebbs Park to Tottenham Hotspur Football Co Limited for a women’s and girls’ football academy and turf academy.

He alleged that the disposal was outside the council’s powers, required prior appropriation, conflicted with the statutory purpose for which the park was held, and was based on an unlawful understanding of the use of the premium. The court also determined applications concerning late evidence and redactions to the agreement.

1. Ground 1. The council had complied with section 123(2A) of the Local Government Act 1972. Section 131(1)(b), read with the 1967 Act Order, did not confine the council to the powers in articles 7 and 8. Article 20 required those powers to be treated as additional to, and not in derogation of, other powers possessed independently of the Order. The council could therefore rely on section 123 to grant the lease.
2. Alternatively, the proposed academies would not have fallen within articles 7(1)(a)(v) or 7(1)(a)(vi). The facilities would not be sufficiently accessible to the public for recreation, and the commercially organised football club was not an organisation of the kind contemplated by article 7(1)(a)(vi).
3. Ground 2. Sections 122 and 123 confer separate powers. Section 122 provides a power, not a duty, to appropriate land for another council purpose. A council disposing of land under section 123 need not first decide that it is no longer required for its existing purpose. Compliance with section 123(2A) and (2B) was sufficient to free the leased land from the section 164 statutory trust.
4. Ground 3. The decision-makers recognised that the land was subject to public trust considerations and understood that the lease would be inconsistent with unrestricted public enjoyment. The statutory procedure supplied the lawful means of resolving that conflict.
5. Ground 4. The statutory trust was not a private trust importing ordinary fiduciary obligations. Sections 123(2A) and (2B) extinguished the trust in the leased land on disposal. Articles 15 and 17 of the 1967 Act Order concerned particular exchanges and street-improvement arrangements and did not require the premium to be reinvested in the remaining park.
6. The late witness statement of Richard Serra was excluded because its substance duplicated evidence already before the court and no adequate explanation was given for its late service. Redactions concerning longstop dates and irrelevant third-party commercial information were allowed; other redactions were not justified.
7. The claim was dismissed.

First-instance judicial review. The judgment records no prior appellate decision in this litigation.