In the matter of land at Wimbledon Park Estate and in the matter of the status of that land
The All England Lawn Tennis Ground plc (formerly the All England Lawn Tennis Ground Limited)
The Mayor and Burgesses of the London Borough of Merton
Opinion in response to the Opinion of Mr. Jonathan Karas KC dated 23 June 2023 submitted to Merton planning department 7 July 2023 in respect of application 21/P2900
1. Following the Day case in the Supreme Court it is clear that if any relevant disposals of what I shall refer to as the golf club land (GCL) ought to have been advertised under section 123(2A) LGA 1972, and were not, the persons to whom the GCL was disposed of without prior advertisement did not take the land pursuant to section 123(2B) LGA 1972) “free from any trust arising solely by virtue of its being held in trust for enjoyment by the public in accordance with … section 164 Public Health Act 1875”. In the view I take of the matter:
(1) Since 31 March 1965 the GCL has been held in trust for enjoyment by the public in accordance with section 164 PHA 1875.
(2) Two disposals ought to have been advertised: the intended 1986 lease of the GCL to the Wimbledon Park Golf Club Limited and the intended 1993 disposal of the freehold of the GCL to the All England Lawn Tennis Ground Limited.
(3) The intended disposals in 1986 and 1993 of the GCL ought to have been advertised because the GCL in 1986 and 1993 was “land consisting of or forming part of an open space” (see section 123(2A) LGA 1972);
(4) Section 336(1) TCPA 1990 defines “open space” where material as “land … used for public recreation”. Even if the GCL was not, either in 1986 or in 1993, itself used for public recreation, it had always been an integral part of the Wimbledon
Park Estate. Accordingly, a court would regard the GCL as being itself used for public recreation, and so as itself “consisting of an open space” within the meaning of section 123(2A) LGA 1972. In addition, the GCL formed part of the Wimbledon Park Estate the remainder of which was in 1986 and 1993 used for public recreation. On both these grounds section 123(2A) LGA 1972 required that the 1986 and 1993 disposals should have been advertised."...read more