The Court of Appeal gave judgment on Thursday 16 November 2017 at 2 p.m. Although the Court of Appeal refused the Friends’ appeal, the judgment is extremely important in that it acknowledges that public parks are held by local authorities on trust for the purpose of public enjoyment and the public are its beneficial owners; as such the public have a statutory right to use the land for recreational purposes and the local authority owner must allow the public free and unrestricted use of it.
Read the full judgement: Click to download here
Although the Court found that s.145 of the Local Government Act 1972 is not limited by any other statutory provision and gives the local authority the power to exclude the public from public parks notwithstanding the public’s rights, that power must be exercised lawfully and not perversely or to frustrate the purpose of the trust (i.e. the public’s right to use the land for recreational purposes). Crucially, the Court of Appeal raises therefore the prospect that where a local authority uses s.145 to exclude the public from a park, that decision can be challenged by residents asserting that the closure of a park is unlawful because it interferes too much with the public’s right to use the park for recreation.
Also, as the court has found that the Council holds Finsbury Park on trust for the public, this means that any monies rasied by the Council from the hire of Finsbury Park must be used only for the purpose of Finsbury Park. The Friends will also be asking Haringey Council to account for all the monies they have raised by the hire of Finsbury Park as they are only allowed to spend the monies on Finsbury itself. The friends are concerned that in fact the Council has been using the monies for it’s general parks budget.
The Friends of Finsbury Park maintain however that a local authority’s power to exclude the public from a park is limited by the restrictions on space and time as set out in the Public Health Amendment Act 1890, section 44 (closure of a park for no more than 12 days in a year or 6 consecutive days on any one occasion) and the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967, Article 7 (max of 1/10 of park to be closed).
The Friends have therefore applied for permission to appeal to the Supreme Court and will continue to raise funds to be able to do this including for their potential exposure to the other sides’ costs, the court fees and copying charges; the Friends’ legal team continues to act on a conditional fee (no win no fee) basis.
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