R (on the application of FRIENDS OF FINSBURY PARK) (Claimant) v HARINGEY LONDON BOROUGH COUNCIL (Defendant) & (1) FESTIVAL REPUBLIC LTD (2) LIVE NATION (MUSIC) LTD (Interested Parties) (2016)

The claimant charity applied for judicial review of the defendant local authority’s decision to grant the first interested party a premises licence to hold a music festival in part of Finsbury Park, a large London park.

The claimant submitted that:

(1) the local authority’s decision to close part of the park for the festival was unlawful because it contravened the restriction on the size of the area which might be closed under the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 Sch.1 art.7, and because it contravened the restrictions on the duration for which a park might be closed to the public under the Public Health Acts Amendment Act 1890 s.44;

(2) the local authority failed to carry out a consultation in accordance with the rules promulgated in R. v Brent LBC Ex p. Gunning 84 L.G.R. 168 and the legitimate expectation created by its Outdoor Events Policy, because consultees were denied access to the application, were not provided with sufficient information or time to make an adequate response, and were misinformed about the proposals;

(3) the local authority failed to deal with the application as a key decision and to make the officer report, decision and background documents available as required by the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 reg.8 to reg.14;

(4) the local authority failed to have regard to a relevant consideration, namely its own Finsbury Park Management Plan, and in particular that the figure of 45,000 persons attending the festival exceeded the 40,000 limit in that plan.

HELD: (1) The Local Government Act 1972 s.145 provided the local authority with the necessary power to permit the festival to take place in the park. There was an express power under s.145(2)(a) to “enclose or set apart” any part of the park, which had to mean or entail closing it to the public. Section 145(2)(b) and s.145(2)(c) made it clear that the power included closing the park to the public, save for those who paid for admission. Section 145(1) conferred on the local authority an express power to do “anything” that was necessary or expedient for the purposes of the provision of an entertainment “of any nature”. That included closing the park to the extent and for the time necessary to set up and take down the event infrastructure, and to hold the event safely for the benefit of those who paid for admission. The festival was an event that fell within s.145(1)(a) and s.145(1)(e). In any event, s.44 of the 1890 Act was an additional power on which the local authority could rely (see paras 45, 47, 50 of judgment).

(2) It was important that the scope of the consultation was as to the holding of the festival “as a matter of principle”. It was not about operational matters of event planning or safety. While the claimant complained that it had not been provided with the site plan, the Outdoor Events Policy did not provide that an application made by an operator or any supporting documents would be shared with stakeholders. The event management plan and other documents on operational matters would be the subject of ongoing scrutiny by the Safety Advisory Group, which would also include consideration of the site plan, Brent LBC considered. Further, none of the information provided had been positively misleading, and no issue could be taken with the 14-day period allowed for consultation. The consultation was adequate for its purpose (paras 56-60).

(3) The fact that the income derived from the festival would help the local authority to meet its parks budget did not mean that the decision was a key decision or that, if the decision was made not to allow the festival to proceed, that would be likely to result in any savings. It had been correct to designate the decision as a non-key decision. Further, although the officer report should have been published five clear days before the decision was taken but was not, the decision had since been made available, along with the report, which contained the reasons for it. As to the making available of background papers for inspection, that had been a matter for the proper officer. It was highly unlikely that the outcome for the claimant would have been substantially different if the documents had been available. There was nothing in the decision or the report that would have led to the claimant making any further representations that would have made any substantial difference to the outcome (paras 70, 72, 75-76).

(4) The event organiser had applied for a licence in 2013, which had been granted with a condition imposing a maximum attendance of 49,999. The attendance limit of 49,999 continued to operate in 2016, and in accordance with that condition, the maximum attendance number was to be 45,000. There had accordingly been no failure to have regard to a material consideration. Even if there was any failure to have proper regard to the 40,000 figure in the Finsbury Park Management Plan, it was highly likely that the outcome for the claimant would not have been substantially different in the light of the fact that in 2014 and 2015 there had been an attendance of 45,000 and the premises licence permitted a maximum attendance of 49,999 (paras 79-80).

Application refused

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