Residents’ group launches legal action against Wimbledon Tennis Club expansion

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Protest at Wandsworth town hall ahead of the Planning Committee on Tuesday 21 November 2023 - Credit: CJI

Save Wimbledon Park community group put forward grounds for a Judicial Review of the Mayor of London’s planning decision to grant the Tennis Club the right to extend and build on part of Wimbledon Park.

Following the decision by Jules Pipe, London’s Deputy Mayor for Planning, on Friday 27 September to overrule Wandsworth Council’s refusal and the vast opposition from local residents to allow the extension of Wimbledon Tennis Club into the park, local campaigners warned that it was not the end of the story.

After a two-hour deliberation period, Mr Pipe decided to follow the decisions of the officers and grant permission. He made a statement, repeating multiple times: “I agree with my officers…” He said that the scheme would provide “very significant” public benefits that would “clearly outweigh” any harm done to public land.

The plans, presented by the All England Lawn Tennis Club (AELTC), aim to expand across Church Road to build an 8,000-seat stadium (104 metres wide and 28 metres high), an additional 38 grass courts, 10 other buildings including a 30,000 sq ft maintenance hub, and 9 km of roads and paths at the former location of the Wimbledon Park Golf Course. The Wimbledon Tennis site would almost triple in size.

The AELTC Wimbledon Park Project – Credit: AELTC brochure

The Save Wimbledon Park (SWP) campaign group had warned that it was not the end of the game yet and therefore the “third set” could be decided in court. They quickly sought legal advice to find the best way to challenge the legality of the plan and said:

“[The comments made by a senior barrister about the Trust] move the application on to the next stage, the review of the planning decision for legality (“Judicial Review”), the enforcement of the 1993 restrictive covenants in which the All England promised not to develop, and the enforcement of the public trust, the fourth and fifth sets of this lengthy match. Save Wimbledon Park is reviewing all options carefully and anticipates further action.”

As if to mark the start of 2025, they waited only a couple of days into the new year to announce that they had initiated legal action to challenge the validity of the Mayor of London’s decision to grant planning permission for the AELTC redevelopment of the former Wimbledon Park golf course. Time was of the essence, as they had only six weeks to challenge the planning permission with a Judicial Review.

The SWP identified a key point: the issue of the Public Recreation Trust (a statutory trust under the Public Health Act 1875). The action names the AELTC and the London Boroughs of Merton and Wandsworth as Interested Parties.

The initiation of proceedings required substantial legal work, for which SWP received unsolicited seed funding from local people and associations who felt passionately that the AELTC project was wrong for numerous reasons. Additionally, the campaign group benefited from considerable pro bono support from Russell-Cooke and two senior KCs.

In their press release, the SWP’s Jeremy Hudson said:

“We have taken this momentous step because our directors, members and the community feel strongly that this precious, historic and highly protected environment should be preserved from inappropriate development, be allowed to remain accessible, and continue to be available for community use for sport and recreation. This step is not just for our local community but also important for many other Metropolitan Open Land spaces under threat of development.”

The opponents had long argued that the extension plan was not only inappropriate but also illegal. Before the hearing at City Hall, the SWP campaign group announced two legal routes to challenge the Tennis Club expansion.

The land trust issue

Firstly, a legal opinion provided to the Greater London Authority (GLA) indicated that the land is held in a Trust—a matter that might only be resolved by the High Court of Justice. Timothy Morshead KC, a senior barrister, explained that “members of the public have rights over the golf course, despite the 1986 lease and despite the 1993 transfer. It follows that the owner [AELTC] must make the land available to the public on a free and unrestricted basis.”

Nick Calder, Head of Development Management at Wandsworth Borough Council, made a significant observation during his representation to the GLA:

“We note the legal opinion received by the GLA which states that the land is held subject to a statutory trust for its use as public recreation. This contradicts the legal opinion received by Merton and the applicants that concludes that the site is not held in a public trust.”

This distinction is crucial, as land held in a statutory trust for public recreation carries special legal protection against development or change of use. This status, typically established by legislation or specific legal instrument, makes it more challenging to repurpose the land.

The 2023 Supreme Court precedent

The 2023 Supreme Court ruling in R (Day) v Shropshire Council has set a significant precedent for land development and public rights in the UK. The case concerned Greenfields Recreation Ground in Shrewsbury, where the local council had sold land for housing development without properly considering existing public rights established by a 1926 statutory trust. The Supreme Court ruled in favour of the residents, stating that their rights were not extinguished by the sale, and consequently quashed the planning permission for 15 houses.

Opponents of the AELTC plans draw parallels with the Shrewsbury case, arguing that the council failed to follow proper procedures in selling the land. SWP’s research has established that the public rights of access (the public recreation trust) fundamental to Merton’s ownership were not properly cancelled upon sale. “Merton had made a serious error as they did not know on what basis they owned the land,” SWP stated.

The 2023 ruling emphasises that public rights created by statutory trusts do not automatically expire when land is sold and should be considered as a material planning consideration. The GLA sought legal advice about the public recreation trust, and in an opinion published just before the hearing, their senior barrister concluded that the trust, and the attendant public access rights, applied to the AELTC’s ownership of the land. The AELTC’s challenge lies in the fact that their development plans conflict with these public access rights. Despite this legal advice, the GLA proceeded to grant planning permission.

Legal experts suggest that this decision provides a robust framework for challenging municipal land sales that fail to respect established public rights, potentially offering a powerful legal mechanism for community protection against inappropriate development.

In this case, the main issue could be summarised with a response to this simple question: “Does a statutory trust exist on Wimbledon Park?” If the land is indeed held in a statutory trust for public recreation, as suggested by SWP’s research and expert legal opinions—including from the GLA’s own lawyers—any development would face significant hurdles and require more stringent approval processes. Such development would likely be incompatible with public recreational rights under the trust.

In 1993, a legal agreement was signed by AELTC prohibiting construction on the park

A second legal challenge stems from the conditions attached when Merton Council sold the freehold to AELTC for £5.2 million in 1993. During this purchase, the Tennis Club entered into a legal covenant that restricted the land’s use to leisure, recreation, or open space, explicitly prohibiting construction on the Grade II* listed parkland.

The convenant is a legal document that was agreed by the then Leader of Merton Council and AELTC on 24 September 1993. It said that:

“The golf course land will be retained as open space. The whole stretch has been designated Metropolitan Open Land. We have declared it a conservation area and placed strong covenants on the sale.”

The AELTC acknowledged that most of the Tennis Club extension area would be inaccessible to the public. At the City Hall hearing in September 2023, Jon Roshier, director at planning consultant Rolfe Judd, speaking for the Tennis Club, confirmed that the grounds would be restricted for at least 72% of the year. He clarified that “illustrations of members of the public who were shown enjoying the expanded grounds in a video presentation of the proposals represented people on ‘curated tours’“.

It must also be noted that, during a 2017 ruling regarding a planning case on Wandsworth Common, a judge prevented the construction of a nursery on the park. The judge stated that unlike golf courses, which cannot prevent public use, giving a lease for a private facility would “prevent any public use of the premises for a significant period of time“.

Similar to the covenant issue, during the planning meeting that approved the initial plan, Councillors were told that the restrictions in the Long Act were not a planning consideration. However, the judicial review verdict was based on the fact that the local authority lacks powers under the 1967 Greater London Parks and Open Spaces Provisional Order (known as “the Long Act”), which provides uniform powers to London borough councils for managing parks and open spaces.

Even the GLA officers seem confused regarding the AELTC extension, as they stated in their report:

“The matter is far from clear-cut, and there are arguments pointing in both directions [and] ultimately the matter can only be resolved by the court”

In their communication, SWP outlined that they believe the planning decision contained legal and policy errors, as it failed to:

  1. take into account the implications of the statutory public recreation trust and the restrictive covenants, both of which prevent the proposed development; and
  2. note that recent golf course development was in planning policy terms “deliberate damage” to this historic heritage asset, such that the rectification of such damage should not count as a benefit; and
  3. appreciate that the proposed private tennis entertainment complex was not an “alternative sports and recreational provision” as required by planning policy.

The AELTC’s response

The AELTC contests the trust status of the land. Just before Christmas, they initiated their own legal proceedings to attempt to prove that the trust status presents no obstacle to their plans.

A spokesperson for the All England Club stated:

“At the Greater London Authority’s public hearing in September 2024, the possibility of a statutory trust on the land was raised in their officers’ report. Our position, was and remains that there is not, nor has there ever been, a statutory trust affecting the land.

In the current circumstances we recognise that the correct thing to do, at this stage, is to put the matter before the court for a decision. We believe that having this matter resolved is an important step that will deliver reassurance to us and to the local community.

This marks the next phase of our long-term project that will maintain our position at the pinnacle of tennis and to deliver year-round benefits for local people with 27 acres of newly accessible parkland for everyone to enjoy.”

The AELTC claims this matter requires urgent resolution, though SWP notes they could have addressed this 18 months earlier, before pursuing the planning process. The AELTC acknowledged this timeline in their response:

“AELTC has always maintained that there is no public recreational trust over the land. The first time the possibility of a statutory trust affecting the land was raised by objectors was in Spring 2023 (following the decision in the Shropshire -v- Day legal case).”

The AELTC seeks court confirmation of the land’s trust status and has invited SWP to act as counterparty. While it is customary in such public interest cases for the AELTC to cover the counterparty’s costs, this agreement has not yet been reached, and court action has not commenced, according to SWP.

The path forward

Beyond the trust dispute, the covenant remains a separate legal hurdle. At a special Merton Council meeting on 15 November 2023, two potential solutions were outlined: either request the council to release or modify the covenant (which many view as betraying previous commitments), or seek discharge through application to the Upper Tribunal (Lands Chamber).

Following Merton’s approval, Councillor Ross Garrod, the Labour leader of Merton Council, appeared to question the legality of his own councillors’ decision, writing:

“The Wimbledon Park Golf Course is subject to restrictive covenants established in the 1993 transfer to All England Lawn Tennis Ground (AELTG). These restrictive covenants include requirements for the owner to use the land only for leisure and recreation or as an open space and places restrictions on the erection of buildings. The development for which planning consent has been granted cannot commence without addressing the restrictive covenants in the 1993 transfer.

I would be grateful if you could advise how you intend to implement the planning consent, if granted, without breaching the restrictive covenants.”

However, until now, the AELTC has maintained silence regarding these restrictive covenants, which they agreed to when acquiring the land.

It might take years before the matter is resolved

The Judicial Review process has begun with SWP’s submission to the court. A formal application requesting permission to proceed with the claim will take approximately two to three months to process. If permission is granted, a hearing might be expected in 12-18 months.

The AELTC’s application remains in its preliminary stages. Should they proceed, formal litigation could take several months to reach court, despite their calls for expedition. If either action proceeds to the Court of Appeal and Supreme Court, the process could extend over many years.

In addition, the restrictive covenant is separately enforceable and may be the subject of further legal proceedings if the AELTC do not comply with it.

SWP remains optimistic about finding a community-oriented solution, stating:

“In the case of Wimbledon Park, the Trust benefits people in Merton and Wandsworth: it is essential that the community’s voice will be heard. Further litigation will be expensive. SWP feels sure that with a little imagination and active discussion with the community, the AELTC could come up with a scheme which satisfies the Trust and adds some grass courts.”

As 2025 marks the 150th anniversary of the Public Health Act 1875, which preserved important open spaces like the Wimbledon Park Estate for public recreation, SWP concluded:

“When will the AELTC recognise the community’s legitimate interest and that this space is not available for their exclusive control and use and that they need to rethink their plans?”

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CJI editor and Clapham Junction Action Group co-founder and coordinator since 2008, Cyril has lived in Clapham Junction since 2001.
He is also funder and CEO of Habilis-Digital Ltd, a digital agency creating and managing websites and Internet solutions.

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