Court of Appeal rejects challenge over power to close parks for festivals

The Court of Appeal has rejected an attempt to stop London boroughs holding large music festivals in public parks, setting up a potential Supreme Court challenge.

Local campaign group the Friends of Finsbury Park (FOFP) took the London Borough of Haringey to judicial review in summer 2016 - after complaints of noise nuisance and disturbances at the 2015 Wireless Festival - arguing that it did not have the power to close off a large section of the park for two weeks for the event.

Haringey won that case but the Court of Appeal agreed to a hearing on whether Supperstone J had erred in law in holding that section 145 of the 1972 Local Government Act authorised the council to hire out the park for the festival.

FOFP argued that various earlier laws stated that councils were only in limited circumstances permitted to close off parts of parks, which they held in trust for the public, and that the 1972 Act did not alter these.

Hickinbotham LJ said in The Friends of Finsbury Park, R (on the application of) v Haringey London Borough Council & Ors [2017] EWCA Civ 1831 that he was “unpersuaded that Supperstone J erred”.

He went on: “I am satisfied that…section 145 provides the council power to enclose part of the park for the purposes of events such as the Wireless Festival, entirely distinct and separate from the power in article 7, such that the council can, in any particular circumstances, exercise either power it chooses. The power under section 44 of the 1890 Act is, likewise, distinct.”

The FOFP said it still believed that a council’s power to exclude the public from a park is limited by the restrictions on space and time in the Public Health Amendment Act 1890, section 44 and the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967, Article 7.

It said in a statement: “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; the friends’ legal team continues to act on a conditional fee basis.” It has maintained its crowd funding presence.

The group said that although judgment found section145 was not limited by any other statutory provision, “that power must be exercised lawfully and not perversely or to frustrate the public’s right to use the land for recreational purposes”.

Its statement said the FOFP felt the judgment “raises therefore the prospect that where a local authority uses s145 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”.

FOFP also claimed that the court’s finding that Haringey holds the park on trust for the public, “means that any monies raised by the council from the hire of Finsbury Park must be used only for the purpose of Finsbury Park” and not for any general budget.

Peray Ahmet, Haringey’s cabinet member for environment, said: “We are pleased that Finsbury Park will continue to play host to Wireless Festival – a world class urban event that helps to fund our borough’s parks the whole year round.”

Mark Smulian