Author: Nicola Tilche / Brian Hurwitz
In April 2016 the Friends of Finsbury Park (“the Friends”) commenced judicial review proceedings against the decision of Haringey London Borough Council (the “Council”) to grant a licence and hire out part of Finsbury Park to hold the 2016 Wireless Festival.
The judge, Supperstone J, granted permission to apply for judicial review but dismissed the claim.
Whilst the 2016 Wireless Festival went ahead as planned, permission to appeal was granted on the basis that one of the grounds of judicial review raised an issue of public importance, namely whether section 145 of the Local Government Act 1972 (the “1972 Act”) authorises local authorities to hire
out a park held on trust for the public – thus temporarily excluding the public from accessing that part of the park – for the purpose of holding a music festival.
Finsbury Park is held by the Council on a statutory trust for the public. The terms of the trust are set out in section 10 of the Open Spaces Act 1906, which requires the Council to hold the park on trust to allow its “enjoyment … by the public as an open space”.
That requirement is subject to other legislation, including:
- a general power conferred on all local authorities to close a park to the public for the holding of certain public events or shows (with time limits) [section 44 of the Public Health Acts Amendment Act 1890 (the “1890 Act”)];
- a power (for London authorities) to authorise the enclosure of open space for the provision of entertainment (including concerts) provided that the area set apart does not exceed one acre or one tenth of the open space, whichever is greater [article 7 in the order scheduled to the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 (the “1967 Order”)];
- a general power to do anything necessary or expedient for the provision of entertainment of any nature, including enclosing or setting apart any part of a park belonging to the local authority or under their control [section 145 of the 1972 Act].
It was common ground between the parties that to hire out part of Finsbury Park for the Festival the Council could neither rely on the 1890 Act (because of its time limits) nor on the 1967 Order (because of its spatial limits). So the only issue was whether the Council had power under the 1972 Act.
The Friends’ core argument was that the power under section 145 of the 1972 Act to “enclose or set apart” could not possibly have been intended to allow local authorities to restrict any private or public rights in the park and therefore it could not be relied upon to exclude members of the public from any part of the park.
The 1890 Act and 1967 Order make express provision for the exclusion of members of the public, but the 1972 Act does not. The Friends argued that to imply that a power to exclude exists under section 145 of the 1972 Act would suggest that the express words used in the 1890 Act and 1967 Order were superfluous. They also argued that if that interpretation were adopted, it would result in the implied repeal of the 1890 Act and 1967 Order. They said that could not have been the intention of Parliament, particularly since section 44 of the 1890 Act had been amended since the passing of the 1972 Act.
The Open Spaces Society’s central argument relied on a general principle of statutory interpretation, namely that a general provision should not be read as limiting the application of a special one. They argued that the more generally applicable provisions of section 145 of the 1972 Act could not have been intended to implicitly repeal the power under article 7 of the 1967 Order, which is of more particular application.
The Court of Appeal ruling
The appeal was unanimously dismissed.
The Court decided that as a matter of ordinary language, “enclosing” an area of land necessarily connotes putting some form of barrier around it with a view to preventing public access to it. The use of the word “enclose” in other relevant local statutes supported the conclusion that it necessarily implies an ability to exclude the public. This can be contrasted with the expression “setting apart”, which on its own does not necessarily imply the exclusion of the public.
The Court of Appeal was not persuaded by the Open Spaces Society’s proposition that in passing article 7 of the 1967 Order, Parliament must have intended that section 145 of the 1972 Act should not apply in London. The court said that the two provisions have a very different scope and the existence of some overlap is insufficient for the general principle of statutory construction relied on by the intervenor to apply. In any event the 1967 Order makes it very clear that its powers were intended to be supplementary to any powers derived from other Acts. The two provisions therefore operate in parallel.
Despite the crafty legal submissions put forward by the Friends and the Open Spaces Society, the outcome of this appeal is perhaps not very surprising. Any other outcome could have potentially caused significant disruption to numerous scheduled outdoor events across England and Wales, and would have no doubt required changes to legislation.
This ruling will no doubt be welcomed by local authorities both for its outcome and for the detailed exploration and clarification of a complex and inconsistent area of local government law that is most likely ripe for consolidation and reform.
This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published.