Please see this helpful summary from the Wimbledon Park Residents' Association of the current situation, background and recent developments concerning the AELTC planning application to build on Wimbledon Park Metrpolitan Open Land.
Chariman's Report [April 2023]
"1993 - 2023
It is significant that exactly 30 years have elapsed since the Wimbledon Park Golf Club freehold land was sold to the AELTC.
As you know, from my previous reports, a significant campaign was launched in 1993 to stop the land being sold by the Council.
Regrettably it was unsuccessful but it did make a major impact and the result was a significant strengthening of the protections on the land.
When Merton decided to sell in 1993, they committed to maintain it as open space. Both Merton and the All England assured the public that there would be no development, covenanting that the land would not be used except for leisure, recreation and open space, nor built upon except as ancillary to recreation or open space use.
The Covenants were given to Merton as the owner of the Lake and Park, which they hold under a trust for the public. Merton must enforce the Covenants to protect the interests of the public and to honour their 1993 commitment.
The All England now propose a covered 8,000 seat stadium, 10 other buildings, 38 purpose built tennis courts and 9kms of roads and paths, designed for their private championship and tournament commercial use. This use and the buildings would all breach the Covenants, but the Covenants do not prevent some reasonable leisure, recreational or open space use of the land, and the All England must come up with a suitable alternative.
The terms of the Covenants are:
1. Not to use the [Golf Course] other than for leisure or recreational purposes or as an open space.
2. No building shall be erected on the [Golf Course] other than a building or buildings the use of which is ancillary to the recreational or open space use referred to in para 1 and which building, or buildings shall not impair the appreciation of the general public of the extent or openness of the property.
3. As soon as golf ceases, to dedicate a public walkway around the Lake.
The case of Thames Water v Oxford City Council concerned a restrictive covenant which a Council wanted to circumvent. A football stadium and ancillary works were to be built on land burdened by a covenant “not to use the land other than for recreational purposes”. It was stated at p170:
“The second defendant is proposing to occupy and use the stadium in order to accommodate, inter alia, professional football matches at which spectators will arguably ‘recreate themselves’ by watching. It may be said that such use is therefore in part for the recreational purpose of the spectators. But the covenant is not to use the land otherwise than for a recreational or ancillary purpose. The commercial exploitation of the game of football by hiring players and charging spectators is not itself a recreational purpose. Nor is it merely ancillary to the recreational purpose of the spectators.”
Substitute tennis for football and it seems clear that the proposal breaches the Covenant, because the commercial playing of tennis as proposed is the primary purpose and itself neither a leisure nor a recreational use.
Recently, I was reviewing the WPRA archives from 1993 which have proved to be so useful. You might be interested in the comments on the examples I have included on pages 6 and 23 which, I think you will agree, are very prescient when you consider the challenge we face now.
Where are we now?
The latest indication for a planning date is April. However, this is by no means certain. The date has been put back several times over the last 18 months. This is largely due to the sheer volume and complexity of documents the Council is having to deal with. We believe this is the largest planning application the Council has ever had to deal with. Throughout, there has been no suggestion from the AELTC that the main proposals would change.
We have met twice with representatives of the Council to discuss the Covenants. However, we are no clearer what the Council is going to do about the Covenants.
Indeed, in February this year, at the Council meeting, the Council was pressed by the LibDems (the major opposition party), Conservatives and Merton Independents to change their stance and change their statement from the previous February from ‘respect’ the Covenants to ‘enforce’. Unfortunately, this attempt failed by a margin of 25 to 28 votes.
It would appear that the Council faces a major dilemma, being conflicted on the one hand as the Planning authority and on the other as the beneficiaries of the Covenants which they hold in trust for the residents.
Since the lodging of the AELTC planning application in July 2021, they have consistently refused to indicate that they are intending to enforce the Covenants despite the clear intentions of their predecessors in 1993 that the land sold to the AELTC should be kept open and not be built on. This is clearly set out in the minutes of various committee meetings at that time, and the public statements of the leader of the Council at that time, Tony Colman, and the then Chairman of the AELTC, John Currie.
In the face of a planning application by the AELTC for a project that blatantly seeks to ignore and override the obligations in the Covenants agreed to, the Council also continues to hang back from making a clear statement that it will enforce the legal obligation it imposed in 1993 on behalf of the residents of Wimbledon. What, you may ask, is holding them back? Has a deal been done behind closed doors? Has the wealth and reputation of the AELTC been too great to resist?
The Council maintains that the Covenants are a legal issue separate to the consideration of the AELTC Planning Application 21/P2900. We have written on two occasions that not only is that idea entirely illogical and does not
make common sense, it is clear from various recent legal decisions that the
courts are of the opinion that issues which affect the planning property and its use and development are Material Considerations. This means that the
planning decision maker must take them fully into account. Here the 1993
covenants and the circumstances in which they were imposed are clearly such
issues, and in this case they must be given considerable weight in the decision.
We continue to press the arguments and lodge objections – most recently, one
has been lodged by one of our campaign members, Parkside Residents’ Association (author Sue Cooke), which critically analyses the so called ‘benefits’ which the AELTC claim they are offering through their proposals.
Also recently, through WPRA, Christopher Coombe has written a paper on Material Considerations – essentially arguing that the Planning officers and Committee should take into account the existence of the Covenants and status of the land when determining the Planning decision – which it appears under planning rules they claim they do not have to do.
This whole issue has recently been highlighted in Day v Shropshire where the Supreme Court has handed down a unanimous decision in favour of Peter Day the appellant, a hero of our day, who has manfully pursued his argument through the Court of Appeal and then to the Supreme Court. Christopher Coombe has kindly done a short summary for us. We believe this is a very important decision."