A school should be allowed to expand on to public land protected by a legal document, it has been claimed, because a legendary businessman meant it to be used by the school.

Merton Council has applied for planning permission to expand Dundonald Primary School in Wimbledon on to public land in Dundonald Recreation Ground, but must first get a tribunal to amend a 119-year-old covenant.

The covenant, written by the park’s former owner, property developer and philanthropist John Innes, says it must be preserved for public use.

But Councillor Peter Walker, Merton former cabinet member for education, has submitted to the Lands Tribunal his view that Innes would have backed the council’s plan.

He said: “The covenant was made in December 1893 and the school was built a year later. Innes did not die until much later.

“In other words, the old boy agreed when alive, to the building of a school for local children on a bit of the open space that he had bequeathed.”

Lorraine Maries, from the Protect Dundonald Rec campaign group, insisted they would raise funds to launch a judicial review should the council convince the tribunal to change the covenant and win planning permission to build.

She said: “Peter Walker is living in cloud cuckoo land; the covenant clearly says the Rec should be kept as open space for all the public, not for one particular school.

“John Innes only sold the land because the council wouldn’t let him put housing on it - he was a hard-nosed businessman and he had no alternative but to sell it. The covenant was his way of getting his own back.”

Councillors on Merton’s planning committee are set to consider the council’s application in November.

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