Law Report: Statute did not frustrate agreement: Islwyn Borough Council and another v Newport Borough Council - Court of Appeal (Lord Justice Glidewell, Lord Justice Hirst and Lord Justice Roch), 22 June 1993

Section 42 of the Education (No 2) Act 1986, which provided for school governors to control the use of school premises outside school hours, did not frustrate a 1977 agreement between three local authorities jointly to operate a leisure complex on school premises for use by the public outside school hours.

The Court of Appeal, by a majority, dismissed an appeal by the defendant, Newport Borough Council, against declarations by Mr Justice Pill, on 28 April 1992, that Newport was not lawfully entitled (1) to withdraw from participation in the Risca Area Joint Leisure Committee without the consent of the plaintiffs, Islwyn Borough Council and Gwent County Council, and (2) to refuse to pay 25 per cent of the annual running costs of the leisure complex.

Nigel Macleod QC, and Wyn Williams (Gareth D Price, Newport) for the defendant; Lord Irvine of Lairg QC, and Malcolm Bishop QC (John C Rogers, Blackwood, and Michael J Perry, Cwmbran) for the plaintiffs.

LORD JUSTICE GLIDEWELL said that the dispute was about whether a 1977 agreement between the three councils, for the construction and funding of a leisure complex on school premises, was still binding. Newport wished to withdraw.

One of the issues raised was whether the agreement was subject to an implied term enabling any of the parties to terminate its involvement in the complex upon giving reasonable notice: his Lordship found no such term could be implied.

Newport also argued that the agreement had been frustrated by the coming into force, on 1 September 1987, of section 42 of the 1986 Act, which provided: 'The articles of government for every county and maintained special school shall provide (a) for the use of the school premises at all times other than during any school session, or break between sessions on the same day, to be under the control of the governing body; (b) for the governing body to exercise control subject to any direction given to them by the local education authority and in so doing to have regard to the desirability of the premises being made available (when not required by or in connection with the school) for use by members of the community served by the school.'

Section 42(b) clearly provided that a local education authority (LEA) was empowered to give directions to a governing body which would ensure continued use of the leisure centre outside school hours by members of the general public. It empowered the LEA to direct the governors to delegate the centre's management to the joint committee, so long as it managed it in a way that did not conflict with the school's educational requirements.

Any doubt as to whether section 42(b) had this effect was put at rest by the provisions in section 16(1), that the articles of government might provide for the conferring of specific functions on any person other than the governing body. That was wide enough to enable the LEA, by direction to the governing body, to require it to delegate the centre's management to the joint committee.

Thus the LEA had power, under the 1986 Act, to ensure that the joint committee continued to manage the centre in accordance with the agreement between the three authorities. Section 42 therefore did not frustrate it.

LORD JUSTICE ROCH concurred on both issues.

LORD JUSTICE HIRST, dissenting, concluded that the agreement was terminable by reasonable notice; and that as there was no evidence that the LEA had actually given a direction under section 42(b), the effect of section 42(a) was to render unlawful the continued management of the centre by the joint committee.

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