Yesterday, the High Court gave two judgments on the legal challenge to the appropriation of part of Dundonald Rec in order to expand Dundonald Primary.

To exercise its powers lawfully, Merton’s Council cabinet had to determine the land was no longer required for its present purpose, that is as public open space. The Court looked at the approach the Council had taken to that decision. In rejecting the legal challenges, the judge said that the Council didn’t act irrationally in the way it made the relevant decisions – this doesn’t mean that he is saying that the Council is factually right just that it wasn’t so irrational that no rational Council would ever come to those decisions (you’ll see the judgment refer to Wednesbury principles).

A short summary of the main decision is below:

“The Court considered the legality of exercise of powers to appropriate open land for educational use under the Local Government Act 1972, s 122(1).  Held: following authority, whether land is no longer required for a particular purpose, meaning no longer needed in the public interest for that purpose, is a question for the local authority, subject to Wednesbury principles*. The authority was entitled when exercising its appropriation power to seek to strike a balance between comparative public needs. It must be open to a authority in balancing such comparative needs to conclude that, as one set of needs could satisfactorily be met by new arrangements, those needs no longer required the land to be held for its current purpose. On the facts, the defendant had neither addressed the wrong question (ie considered if the land was needed as set aside for particular sports, as opposed to, whether it was needed as public open space) nor irrationally determined the balancing exercise of competing public interest needs. (Although unnecessary given the decision he reached) The judge also added, at para 89, that even if he felt that the Council’s decisions had been flawed he would not “have been minded to grant any relief . . . The effect of any relief would undoubtedly bring to a halt a scheme for the expansion of [a] school which is well advanced and in respect of which . . . considerable public resources have been spent”.

Link to the first (main) judgment and the second shorter one.

*Broadly, this means that the decision must not be so unreasonable that no reasonable decision-maker could make it.

UPDATE: response from Protect Dundonald Rec, as reported on Wimbledonsw19.com

Lorraine Maries, Chairman of PDR, said about the Judicial Review into the signage: “Dundonald School’s ‘exclusive rights’ were unlawful, as were the signs which excluded the public from the tennis courts and bowling green.

“This is a serious issue which has a major impact in other parts of Merton where schools have been granted ‘exclusive use’ of public land to which bylaws apply. The Council’s wrongful insistence that they had a right to restrict public access shows a tenuous grasp of the law and a complete disregard for public rights.”

She said the court had granted the right to submit an appeal request by August 14, and they were now considering the next steps.

“Councillors and Council Officers have persistently misled and deceived the public, the school governors, parents and their own internal committees. Now we have seen false statements submitted to the High Court. Once the legal processes are complete we will act on this and intend to pursue our complaints with the relevant authorities including the Local Government Ombudsman,” she added.