Court of Appeal delivers clarity on music festivals in public parks

In a judgment delivered on 16 November 2017 in the case of Friends of Finsbury Park v Haringey London Borough Council (2) Festival Republic Limited (3) Live Nation (Music) Limited, The Open Spaces Society [Intervenor] (C1/2016/2662), the Court of Appeal dismissed a judicial review challenge to the ability of the London Borough of Haringey to allow the 2016 Wireless Festival to take place in part of Finsbury Park.

It found that:

  • section 145 of the Local Government Act 1972 provides a standalone power to “enclose” an area within a park for the purposes of an event, such as a music festival,
  • as a matter of ordinary language, “enclosing” an area of land necessarily connotes putting some form of barrier round the whole of that area with a view to preventing access to and/or egress from it, and
  • section 145 was intended to give a power to the relevant local authority to so exclude members of the public, e.g. those who do not have a ticket and have not paid, from that area.

In so finding, the Court of Appeal  was unpersuaded by the legal arguments advanced on behalf of the Friends of Finsbury Park that the Local Government Act 1972 could not be read in isolation and that instead it had to be read as a single code in conjunction with, and subject to, section 44 of the Public Health Amendment Act 1890 and Article 7 of the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967.

Because no specific challenge had been made at first instance by the Open Spaces Society under section 10 of the Open Spaces Act 1906 (on the ground that it creates a statutory trust of land, requiring the local authority to hold it for the purpose of public recreation, thus tempering the exercise of power under section 145 of the Local Government Act 1972), the Court of Appeal did not consider whether such an additional challenge might have succeeded but, in his judgment, Lord Justice Hickinbottom did comment that “it may be that such a challenge would have been difficult to mount or even untenable”.