Friends of River Park say the battle to prevent the site of the old leisure centre being sold to the University of Southampton is not yet over.
They have been keenly following a similar case in the Supreme Court – Rex (Day) v Shropshire Council – which was heard in December but where the judgment came through a month ago. It was widely reported in the Times Law Report, the Guardian and online, due to its significance for all local authorities thinking of disposing of land held for public recreation.
As with the River Park case, campaigners, who began their fight in 2017, had been knocked back more than once. Their persistence paid off, with five law lords agreeing unanimously that Shropshire County Council had acted illegally in granting planning consent for building on public land that was subject to a statutory trust. All sides agree that the River Park land is subject to a statutory trust. The land in Shrewsbury had been sold to a developer by the Town Council, but the developer was unable to develop because of the trust. As the Times headline put it, ‘Trust of council land for public recreation survives sale’.
Lady Rose, giving the judgment for all the law lords, didn’t say how the Town Council and the developer could get out of the mess that had been created now that the planning consent had been quashed and the land was undevelopable. However, she did say, in her closing paragraph, that, ‘If, as a result of this appeal, other local authorities and parish councils decide to follow that advice and take stock of how they acquired and now hold the pleasure grounds, public walks and open spaces that they make available to the public to enjoy then that, in my judgment, would be all to the good.’
Dr Peter Day, of Shrewsbury, was represented by Alex Goodman KC, who is one of two barristers representing Friends of River Park.
Following the Shropshire result, FoRP instructed their legal team to write to Winchester City Council inviting them to quash the decision to dispose of the land. WCC has refused, hence the intent to reopen proceedings. The letter of refusal makes it clear no lease has yet been signed.
The judge who refused consent to appeal made his decision on the grounds that it was not a disposal, and that the barrister representing Winchester City Council promised the Council would behave correctly in future, after initially failing to advertise the disposal of the site until FoRP launched their initial legal proceedings, thus highlighting the illegality of the Council’s procedure.
Friends of River Park have particularly in mind the Vaultex case, of the car park overlooking Domum Road. There, Winchester City Council was owner, applicant and planning authority. Local residents, along with Winchester College and the South Downs National Park, challenged the development and the conduct of the Council, prompting Cllr Charles Radcliffe to say, “There’s no doubt this car park is unpopular with local residents… They’re unhappy about the way the Council has presented its case and continue to question much of the data used to support it. There’s a maddening sense that the Council is determined to push ahead regardless of what anyone has to say …” (HC 21 October 2021) The residents applied for a Judicial Review of the planning decision which was accepted by the High Court, on legal grounds including a material error found in the Noise Impact Assessment.
The Council, however, persisted with a second, almost identical, planning application while the judicial process was still underway, to the astonishment of the residents’ legal team. Dr Michael Heard who led the residents’ case said, “WCC was outrageous in our opinion and our legal team were confident of winning the JR. They pushed us hard to challenge the new application. Construction had commenced, despite the impending legal case and without the second application being approved. Whatever we did it was clear the WCC was going to drive the development through. Once the planning committee approved the second application, WCC did not contest the Judicial Review, withdrew the flawed first planning application and paid a proportion of the residents’ legal fees.”
“This is why”, says former councillor Rose Burns, who is heading the legal challenge on River Park, “it is unwise to trust that WCC will do the correct thing”.
Neil McArthur, of the Council’s Legal Services team, says the granting of the lease on River Park “is unlikely to happen for some years”. But Rose Burns makes the point that, “There is now an effective blight on the Leisure Centre site, with the redundant building becoming ever more derelict. This is because the Council has granted a five-year option to the University of Southampton which excludes the public from access. Friends of River Park suspect the Council is hoping we will run out of steam. However, we don’t propose to let the matter drop now that the definitive legal position has been spelled out by the Supreme Court in the Shropshire case with regard to local authorities and public recreation land”.
Judith Martin
13th April 2023
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