Challenge to appropriation of part of recreation ground for school extension fails

A school extension can lawfully encroach on a recreation ground held for public use by the London Borough of Merton and a predecessor authority since 1893, a High Court judge has ruled.

The council won a case taken to judicial review by a local resident over the Dundonald recreation ground, a 48,000 square metres area acquired by the Local Board for the District of Wimbledon in 1893 to “ever be used as a public pleasure ground”.

Merton Council sought to exercise its powers of appropriation of land under section 122(1) of the Local Government Act 1972, which contemplates situations where a local authority wishes to use land for purposes different from that for which it was originally acquired, or for which it is currently held.

The subsection sets out two requirements if the appropriation for a new purpose is to be allowed: the land must belong to the council; and it must no longer be required for the purposes for which it is currently held.

Merton planned to enlarge an adjacent school, the Dundonald Primary School, by extending the school buildings onto part of the recreation ground together with some external space and to replace an existing pavilion and existing recreational/sports facilities with a new set of tennis courts/multi games area which are to become shared facilities between the school and the public.

The claimant sought to challenge a decision by the council’s Cabinet Committee that 2,578 square metres of the ground was no longer required for the purposes for which it was currently held and to appropriate it for three identified purposes to allow for the enlargement of the school.

Mr Justice King said in his judgment: “The core complaint made in this case is that the cabinet failed to ask itself the correct statutory question, that the purpose for which the land in question was currently held was not a purpose to be defined by the current 'set aside' sporting uses (the tennis courts, the bowling green, etc) upon which it is said the Officers report and the considerations of the Cabinet concentrated, but the purpose for which it had been conveyed to the Council back in 1893.”

But the judge said he could not accept that advice given by officers to the Cabinet as to the approach to be adopted under section 122 was flawed.

Merton had lawfully balanced competing community needs, of which it was entitled to take a broad view.

The judge added that had he been persuaded that there was any public flaw in the approach adopted by the council in its determination under section 122, he would not have been minded to grant any relief.

Work on the expansion of the school was well advanced and considerable public resources had been spent, he said.

Cabinet member for education Martin Whelton said: “We welcome the decision of the High Court which shows we have acted both properly and fairly, as we work to fulfil our obligation to provide enough school places.”

Merton though faces a further hearing in September of an appeal lodged against the school building plans.

Mark Smulian