The third and final day of the High Court case against Enfield Council saw a passionate appeal for the leasing decision to be overturned, reports James Cracknell
The final day of a judicial review hearing at the High Court saw a passionate plea for the “quashing” of Enfield Council’s decision to lease Whitewebbs Park to Tottenham Hotspur.
Before the judge in the case retired to consider his verdict – which he said would take until at least the end of March – the lawyer representing claimant Sean Wilkinson made his closing arguments and reiterated one of the key grounds for the case being brought.
“The council failed to understand and failed to take account of the obvious material fact that granting a lease for a private training academy was inconsistent with the statutory purpose of the land being held in public trust,” Alex Goodman KC told the court.
Goodman’s final arguments came at the end of a three-day hearing during which claims and counter-claims were aired over whether the council had “misled” councillors last July, when an overview and scrutiny committee confirmed the decision by the council to issue a 25-year lease for more than half of Whitewebbs Park.
The lawyer representing Tottenham Hotspur FC (THFC) had on Thursday morning made his legal submissions on behalf of the Premier League club – which has plans to build a women’s and girls’ football academy on the north-east corner of the park and was listed as an “interested party” in the judicial review case.
On the point about whether or not users of the park had enjoyed full public access prior to the 2021 closure of Whitewebbs Park Golf Course, James Maurici KC told the court: “The council did not say there wasn’t public access to the golf course but merely said that when the golf course was operated, that access was more limited.
“They [the council] did admit that for 18% [of the total park area] there would be a loss of access, but 82% would be enhanced, and what officers talked about was the pros and cons of that.”
He continued: “Since the 1930s it had been laid out as a golf course – the council doesn’t deny that it is held in public trust, but officers were comparing the quality of public access to the whole area of land to be leased at the time the golf course was operating, to when it would be leased.
“It is part of the claimant’s case that any use of the golf course was deferential and they [the public] wouldn’t be able to interfere in play […] there is an acceptance by the claimant that there was a priority use by golfers.”
The portion of the leasehold area set to be occupied by the Spurs women’s and girls’ academy – which will ultimately be fenced off from the general public – is 33%. Explaining what would happen to the remaining area of the lease controlled by THFC, Maurici said: “Some 67% of the former golf course land, under our proposals, will be fully publicly accessible – the lease guarantees it will be available for recreational purposes. It will also be accompanied by a wide range of ecological and environmental benefits.
“The lease is conditional on planning permission, so there will be conditions and Section 106 obligations which will further secure the public access to that land and will ensure that all the improvements promised by Tottenham Hotspur are delivered by Tottenham Hotspur.”
Discussing the training academy itself, Maurici claimed there would be a “requirement for community use” on which more detail would come when THFC’s planning application is submitted. “The training facility will allow for the development of girls playing sport, including of course girls from the borough.”
On this point, Mr Justice Mould interjected and said: “Not everyone says that is a benefit which should outweigh public recreation – but that is a judgment for the local authority to make.”
Regarding the debate that had become a running theme through the case, on whether or not the overview and scrutiny committee was misled last July, Maurici said: “Any idea they were unaware it was public trust land is, in my submission, ridiculous.”
He then made a further point that playing football was a “recreational activity” itself and so the whole of the leased area would continue to be used for that purpose.
In the afternoon session, Goodman offered his response to what Enfield Council’s lawyer Matt Hutchings described as an “ambush” yesterday (Wednesday 7th) when he claimed Goodman had offered oral arguments about the committee being misled that had not also been made in his written grounds for the case.
Referring back to the fact that the council had only conceded that Whitewebbs Park was held as statutory public land last week after Sean uncovered evidence of it, Goodman said: “We kept saying to the council, we need the documents – but the council comes back with nothing, and eventually the claimant has to go to the archives and find the documents for himself.
“And what really happened? The council lost the whip hand on the scarcity of primary evidence, and instead has had to concede the land is held in statutory trust. So the council had stuck its head in the sand as to what the documents showed or might show about the powers under which it held its own park.
“But if their approach to litigation is to stick their head in the sand – they can’t then claim to be ambushed. The only ambush is a self-imposed one.”
Goodman clarified that he wasn’t accusing the council of “sitting on a piece of knowledge” and “refusing to disclose it” but “I do argue they didn’t search for it”. He added: “They are saying they cannot be bothered to work out which bit of land is statutory trust and which is not.”
He further explained that the council’s failure to establish the fact of the statutory trust prior to drawing up a lease for the land meant they lost the chance to find an alternative plot for use by THFC and “avoid selling off the bit of land that is in public trust” – which ultimately meant this failure “influenced their decision”.
Goodman said that throughout the judicial review the council had adopted a tactic of “trying to obscure and cast a veil over the fact it has adopted a fundamental change of position” since Sean’s discovery of documentary evidence in January.
In response to the point by THFC’s lawyer about public access to the golf course, Goodman said: “Both the golf course user and the recreational user are manifestations of the public rights of recreation. It is an expression of public rights. But the way it was presented to the committee is that the golf course was an obstruction to public access rights.”
He concluded: “Either the officers knew that there was a public trust or they didn’t. If they did – which is what is claimed [by Hutchings] – then it was at best a breach of duty of candour. But if they didn’t know, then they cannot possibly have taken the decision on the basis that they did understand.”
Summing up the tumultuous three-day judicial review hearing, Mr Justice Mould said: “This case raises a number of quite complex and, I suspect, important questions, so I am going to take some time to consider them.”