Community centre wins judicial review challenge over grant of new lease to another group and report to Cabinet

Parklands Community Centre claimed the council unfairly advantaged its nearby rival St Mark’s and Hesters Way Community Centre by agreeing a new lease only for the latter.

St Mark’s and Hesters Way is run by a concern named Mission Inclusion (MI) and the new lease means it is able to access funding and take event bookings while Parklands cannot as long as its lease status reminds unresolved.

Parklands has argued MI should not have been given a new lease as the previous tenant of its premises had not surrendered its lease, although the council claimed it had.

In the judicial review Parklands challenged Cheltenham’s cabinet decision to give MI a lease but to maintain it could not grant the same to Parklands as it could not find an eligible trustee named on the lease.

It argued the cabinet was misdirected by being wrongly advised that the incumbent tenant had validly surrendered a lease on the MI site granted in 1981 and that the council failed to comply with the requirements of Section 123 (2A) of the Local Government Act 1972 for the disposal of land incorporating public open space some of which became part of MI’s premises.

HHJ Brian Rawlings said he had to decide that if either or both grounds were made out, and whether relief would be appropriate.

He decided that Parkland had standing to bring the case and that an error of law had occurred because there has been no surrender of the 1981 lease and “it follows that the error of law in the executive summary to report [to cabinet] is material”

Cheltenham argued this was academic but the judge said: “I should not speculate as to what may happen, if I declare that there was an error of law in the executive summary of the report.

“The error of law is not rendered academic now, because of what the council and others may or may not do, in the future “

But he decided the disputed concrete path and garage area around MI’s centre was not public open space, as in order to have this status the land must satisfy the definition in Section 336 of the Town and Country Planning Act 1990 “and in my judgment,…neither the concrete path, nor the area around the garage” was being used or public recreation on the relevant date.

HHJ Rawlings also concluded that the Senior Courts Act 1981 did not apply. He said: “I do not consider that prejudice to MI’s rights is sufficient reason not to grant the relief that the claimant seeks because, as I have already said…MI entered into the new lease either in the knowledge that the claimant had threatened to issue a claim for a declaration that the surrender of the 1981 lease was invalid or in the knowledge that the claimant had actually issued such a claim.”

"It is not, in those circumstances, unreasonable, that the remedy I grant will or may prejudice MI's rights under the new lease, given that they were or ought to have been aware of this risk, when entering into the new lease.

He declared the cabinet’s decision unlawful, declared there has been no valid surrender of the 1981 lease and and quashed the decision. 

A council statement said: “The council is disappointed with decision of the judge in respect of his findings around the surrender of the 1981 lease. The council is reviewing the judgment and considering whether it has grounds to appeal elements of the decision.”

Mark Smulian