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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Maries, R (On the Application Of) v London Borough of Merton [2014] EWHC 2691 (Admin) (31 July 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/2691.html Cite as: [2014] EWHC 2691 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/07/2014

Mr Justice King:

1. This judgement has to be read along side the Judgement of the Court in the Judicial Review Claim involving the same parties under number CO/814/2014.
2. This claim seeks to challenge the lawfulness of the defendant's decision of June 2013 to lock entrances to the bowling green area on the Dundonald Recreation Ground and to erect two signs on the perimeter of the bowling green area and on the perimeter of the tennis court area, purportedly informing the public that the bowling facility had now closed and any use of the Green for bowling was not permitted, and the courts were only available to the public outside school operating hours.
3. This claim came before me pursuant to the Order of Lang J of 3^rd April 2014 (hearing 28^th March 2014) as a rolled up hearing with the issue of permission to be determined first, with the substantive hearing to follow if permission be granted. Immediately before the hearing of this claim the court heard the claim under CO/814/2014. That claim involved a challenge to the lawfulness of the defendant's appropriation under section 122 of the Local Government Act 1972 of the very same land upon which the bowling green and tennis courts in question stood and in particular challenged the lawfulness of the determination that the land was no longer required for the purposes for which it was currently held as a recreation ground open space/public pleasure ground.
4. It was agreed between the parties that if the challenge to the appropriation failed then this claim became academic. This is because the basis of this challenge is that the challenged actions/decision of the defendant were contrary to and out with its powers under the byelaws made under the Public Heath Act 1875 and the Open Spaces Act 1906 which governed the use to which the land could be put by the defendant. The effect of appropriation was however to remove the land in question from the scope of the byelaws and to enable the defendant to use it instead for other purposes to facilitate the expansion of the adjacent Dundonald Primary School. Since the appropriation, the defendant has in March 2013 entered into a Community Use Agreement with the School regulating the School's exclusive use of the tennis courts and providing for Community Public Use outside school hours, and further has granted a Licence to the School granting it exclusive use of the tennis courts during defined school hours. By amended Grounds of Claim the claimant in this claim has challenged the lawfulness of the defendant entering into this agreement and granting this licence but again the basis of challenge is that such agreement and grant is out with the defendant's powers under the byelaws. It follows again however that if the appropriation has been lawfully effected, the byelaws no longer apply and this amended challenge cannot succeed.
5. For the reasons set out in my judgement in the claim CO/814/2014 the challenge to the lawfulness of the appropriation has failed.
6. Hence it is inevitable for the reasons already given that I must and do refuse permission in this claim.
7. I should make clear however that had the appropriation challenge succeeded, I would have been minded to find that the byelaws which I analysed in part in my earlier judgement, did not empower the defendant to grant legally exclusive use to any part of the recreational ground, including the tennis courts, to any third party (outside the limited exclusive use granted under byelaws 13 and 14 when a game was in play or a match was in play) and in so far as the notices were purporting to assert such a legal position they would not have been lawful. Equally I would have been minded to find that the byelaws did not empower the defendant to prevent informal public use of any part of the recreational ground not, or no longer, set aside for a particular sporting activity, and in so far as the bowling green notice and/or the locking up of the entrances had this effect (and in so far as the defendant was not thereby seeking to rely upon the byelaw 15 governing set aside areas which were unfit for use) then again the defendant's actions complained of in the claim were unlawful.
8. However given my refusal of permission it is unnecessary for me to go further in this judgement on the merits of this claim. It is also unnecessary for me to consider further whether even if permission had been granted, and even if the merits had been found as I have outlined, any relief would have been granted or denied given the submissions made to me in respect of the amended claim and on the effect of any relief on third parties who have entered into agreements with the defendant, in particular the School. I should in this context record that I am satisfied that the notice of the Amended Grounds of Claim was given to the School Governing Body on 17^th April 2014 who by email of 24^th April 2014 stated that it did not wish to be joined as an Interested Party.