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Council "did not have vires to lease part of common to pre-school nursery"

The London Borough of Wandsworth did not have the vires to lease premises situated on a common to a private pre-school operator, the Court of Appeal has ruled.

In Muir, R (On the Application Of) v Smart Pre-Schools Ltd [2018] EWCA Civ 1035 the Court upheld a High Court ruling in favour of Alexander Keay Muir, who had made a competing proposal for use of the premises.

Wandsworth had decided to lease the site to Smart Pre-Schools.

Floyd LJ said the case turned on the correct construction and application of the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967.

He noted this gave a local authority the power “in any open space” to provide and maintain: “indoor facilities for any form of recreation whatsoever" and “centres and other facilities (whether indoor or open air) for use of clubs, societies or organisations whose objects or activities are wholly or mainly of a recreational, social or educational character”.

Wandsworth had argued that the pre-school proposals came within either of both of these categories.

Mrs Justice Lang in the High Court had ruled that leasing the premises to a private fee-paying nursery would not provide “facilities for public recreation” since the public would not have a right of access and facilities would only be provided for children enrolled in the nursery.

Giving judgment on Wandsworth’s appeal, Floyd LJ said: “The proposed facility is more in the nature of a school than a recreational facility.”

He noted it would offer all-day child care for pre-school children, which was not “recreation” and “the contrary view, that [it] is a predominantly recreational facility with ancillary educational and child care facilities is, to my mind, not a natural or appropriate way of describing what is proposed”.

The judge also said that a limited company running a pre-school could not be described as a club or society as meant by the Act.

Mark Smulian

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