On day two of the judicial review, Enfield Council’s KC delivers strongly-worded rebuttal of claims it had a “failure of governance”, reports James Cracknell
Enfield Council’s lawyer launched a fierce defence of the way the local authority had gone about issuing a lease for Whitewebbs Park to Tottenham Hotspur on day two of a judicial review case at the High Court.
In response to a series of accusations levelled against the council on day one of the three-day hearing, Matt Hutchings KC began his submission today (Wednesday 7th) by claiming he had been “ambushed” with the case presented by claimant Sean Wilkinson’s own lawyer, Alex Goodman KC, yesterday (Tuesday 6th).
Referring to the claim by Goodman – made in court but not as part of his written grounds for the case – that councillors on an overview and scrutiny committee last July had been “misled” by the council, Hutchings said: “My learned friend rewrote ground three on his feet – ground three doesn’t say that when taking the decision the defendant [Enfield Council] failed to take account of public rights or misled members or anything like that.
“It was a complete ambush – this was a substantial new ground raised for the first time on the first day of oral evidence […] I was somewhat shocked by his nerve.”
Goodman had said that councillors were given “no advice” that the effect of the 25-year lease to Tottenham Hotspur FC (THFC) “was to extinguish the public rights to access” and later argued the council’s “denial” of this fact amounted to a “failure of governance”.
Hutchings, clearly angry at the suggestion, countered in court today: “I am sorry but it is expressly unfair and quite wrong.
“The decision of the overview and scrutiny committee proceeded on the basis that the land was public trust land and as a result of the lease the public trust would end and public rights would end.
“My learned friend is wrong to submit that no advice was given to committee members that the effect of the disposal [of the land to THFC] was extinguishing the public trust.”
To back this up, Hutchings pointed to the call-in request that councillors had considered, which mentions in the second reason listed that the council “holds the park in trust and as part of this trust is expected to maintain open access to the parkland”.
Hutchings said: “It would have been obvious that the rights [of the public] would end.”
Mr Justice Mould, the judge in the case, seemed to concede this point and said: “Courts should proceed on the basis that local members [of councils] have a degree of knowledge of local circumstances.”
Referring again to last July’s overview and scrutiny committee meeting, Hutchings added: “At this meeting, which was likely to be acrimonious, one suspects the arguments were well ventilated.”
Goodman had yesterday seized on the admission made only last week by the council that Whitewebbs Park was held under “statutory trust” which protects access rights for the public, but Hutchings rejected the idea that the council took its decision “in ignorance of this fact” and claimed instead that it had simply asked Friends of Whitewebbs Park chair Sean Wilkinson, as the claimant, to “prove it” for the purpose of the judicial review.
He said that the area of the park set to be leased, in its previous use as a golf course prior to 2021, “didn’t have general access” because the golfers who used it “had priority” – while the proposal from Spurs for a women’s and girls’ academy would ensure “82% of the park remains fully open to the public”.
Hutchings also claimed there was a “danger of the courts being out of touch with what local democracy really means” and that “applying a forensic analysis is inappropriate”, adding that the report to committee had simply sought to show “that the benefit of the proposal outweighs the negatives”.
Wednesday’s morning session had seen Goodman presenting two further grounds for the case. The first of these was a “failure to appropriate the park” under the Local Government Act 1972, which says that to do so a council must show that the land is “no longer required for the purpose for which it is held”.
Goodman explained: “On the facts, the council is of the opposite view, that the land is required. It talks about improving public access – they argue it [the lease to THFC] will make it better. It hasn’t argued that the land is not needed.”
The final ground presented by Goodman was that the council had “failed to take account of relevant matters”. The KC argued that the decision made to lease the park to THFC was “influenced” by the prospect of a £2million capital receipt, but the Local Government Act requires such money to only be invested “in the remaining public trust land of which it forms part”.
Goodman said: “The council, in thinking it made this disposal to swell its general coffers, made an error, and it was an error which influenced the decision.”
In the afternoon session, after Hutchings had rebutted Goodman’s claims about councillors being misled, a lengthy discussion ensued over which sections of which acts of law were relevant when deciding whether the council had the ability to dispose of land held in public trust in the way it had attempted.
On the point about capital receipts from land disposals and how they could be used, Hutchings again rejected Goodman’s claims on the basis that “parks are funded out of general funds” and are not part of any “ringfenced” budget.
The case concludes tomorrow (Thursday 8th) with final submissions being made by Hutchings and then James Maurici KC, representing Tottenham Hotspur, making his own.