Andrew Moore v Secretary of State for Communities and Local Government Watford Borough Council and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 02 November 2016 |
| Neutral Citation | [2016] EWHC 2736 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4273/2016 |
| Date | 02 November 2016 |
[2016] EWHC 2736 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/4273/2016
The Queen on the application of
and
Jason Coppel QC and Christopher Knight (instructed by Deighton Pierce Glynn) for the Claimant
Zoe Leventhal (instructed by the Government Legal Department) for the Defendant
Robin Green (instructed by Watford Borough Council) for the First Interested Party
Yaaser Vanderman (instructed by Buckles) for the Second Interested Party
Hearing date: 21 October 2016
Approved Judgment
The Claimant seeks judicial review of a decision ("the Decision") of the Defendant ("the Secretary of State") dated 26 May 2016 to grant consent to Watford Borough Council ("the Council"), under section 8 of the Allotments Act 1925 ("the AA 1925") and applying the 2014 "Allotment Disposal Guidance: Safeguards and Alternatives" ("the Guidance"), for the appropriation of 2.63 ha of allotment land at Farm Terrace, Watford ("the Allotments") for use as part of a redevelopment scheme known as the Watford Health Campus Scheme ("the Scheme").
The Claimant, among others, tends an allotment at Farm Terrace and is also Chairman of the Farm Terrace Community Association which has been set up to seek to protect the Allotments from development. The opposition to the appropriation by the Claimant and others was supported by the National Allotment Society ("NAS"), which was required to be consulted in accordance with the policy criteria in the Guidance.
On 24 August 2016, Holgate J. adjourned the application for permission to apply for judicial review to a "rolled-up" hearing, with the substantive application to be listed to follow immediately after the permission application. By agreement of the parties, I heard the application for permission together with the substantive application. The Council agreed not to take any steps to enforce the notices to quit the Allotments up to and including 25 November 2016.
History
The Allotments were established in 1882, on the site of sewage works. They consist of 128 plots. The number of plot-holders has dwindled over the past few years, as a result of the Council's decision to appropriate the land for development, and the subsequent closure of the waiting list in 2012. As at 26 January 2016, there were 24 tenants cultivating 31 plots. Most of the remaining plot-holders live within a mile of the allotments. Some have had their plots for several decades. Many of them are elderly. Long term cultivation of the plots has left the soil easy to cultivate, even by elderly and disabled plot-holders, and suitable for growing a wide range of crops. Many of the plot-holders visit their allotments several times a day on some days, and this can be essential during dry periods in order to ensure adequate watering. Some have irreplaceable and unmoveable crops, for example a well-established fig tree, of a variety that is no longer commercially available. The witness statements of the Claimant, Mr Wakeling and Mr Trebar described the importance of the allotments to the allotment holders.
The alternative allotment site initially offered by the Council – Paddock Road – is a newly-created addition to a current allotment site. It is located more than two miles away from the homes of most of the remaining allotment holders. The new allotments would have to be cultivated from scratch. The soil is not of the required standard and may take many years of careful tending to reach that standard. The Council have since offered additional alternative allotments at existing allotment sites (Brightwell and Holywell) which are closer to Farm Terrace.
Ms Bunting, Legal and Operations Manager of the NAS, set out in her witness statements the importance of allotments and the concern that there was growing pressure to redevelop allotment sites in city centres for housing developments. She considered that, if the circumstances of this case were deemed to be "exceptional" under the terms of the Guidance, then the policy which was designed to protect allotments would be denuded of its efficacy.
The Scheme is a major regeneration project, dating back to 2007, to redevelop approximately 27 ha of mainly brownfield, and partly contaminated, land in West Watford, including the area currently occupied by Watford General Hospital. It is a mixed used scheme comprising residential development (including 35% affordable housing), potential improvement/expansion of Watford General Hospital's facilities, new road access arrangements for the hospital, commercial office development, shopping, community, leisure facilities and open space. The area is allocated for the Scheme in the Council's Core Strategy as a Special Policy Area (SPA3). The Scheme has gone through a number of changes, which are too detailed to set out in this judgment.
Planning permission was initially granted in 2010 for a version of the Scheme which did not involve the redevelopment of the Allotments. Subsequently it was proposed by the developer and the Council that the Allotments should be incorporated within the Scheme, to make the Scheme more financially viable, as the Allotments could be used for residential development. Moreover, the development site was challenging in terms of topography, access and contamination, with various changes of level across the site. The Allotments lay outside the steep contours of the site in the intended "central zone" and so were relatively physically unconstrained.
The Council first decided to appropriate the Allotments for use for the Scheme by a decision of its Cabinet dated 3 December 2012.
The Council made its first application to the Secretary of State for consent to appropriate the Allotments on 8 February 2013, based upon the project proposals in existence at that time. The decision to grant consent was made by the Secretary of State on 8 May 2013. The Claimant contended that the Council's application was misleading. The decision was subsequently quashed by consent, on the basis that the Secretary of State conceded an arguable error of law in respect of the adequacy of the reasons given for departure from the earlier ministerial policy (set out in a letter to local authorities in February 2002). A consent order was made on 14th August 2013 on terms that the Secretary of State would undertake a full reconsideration of the application.
On 20 September 2013, the Council made a second application to appropriate the Allotments, based upon the project proposals in existence at that time. It was granted by the Secretary of State on 18 December 2013, again applying the ministerial policy of February 2002. The Claimant (with two others) challenged that decision on the grounds that:
i) the Secretary of State had misdirected himself in justifying his departure from criterion of his policy based on "exceptional circumstances", because the Secretary of State had proceeded on the basis that the Scheme would not be economically viable without the allotments (and therefore would not proceed at all), which was incorrect;
ii) the Secretary of State had misunderstood or been misled as to the evidence regarding the allotments contribution to viability;
iii) the Secretary of State had taken the decision without knowledge of a number of material changes to the Scheme since the application had been made;
iv) the claimants' rights under Article 1 to the First Protocol of the ECHR ("A1P1") had been breached;
v) legitimate expectation.
In R (Moore & Ors) v Secretary of State for Communities and Local Government and Watford Borough Council [2014] EWHC 3592 (Admin), Ouseley J. allowed the claim on 31 October 2014. He found for the claimants only on one aspect of ground (iii), namely, that the Council had not notified the Secretary of State that the amount of housing proposed on the site (excluding the Allotments) had increased significantly by the time of his Decision (with the potential to impact upon the viability of the Scheme and thus the need for the allotments). Ouseley J. rejected the claimants' other grounds.
A planning application for the Scheme, excluding the allotments, was approved by the Council in September 2014.
On 17 December 2014, the Council made a third application for consent, comprising a detailed application form and 43 appendices. The Council's application for consent set out the following proposals for the 2.63 ha land comprising the Allotments as part of the Scheme:
i) 1.4 ha for use as 69 three-bedroom family houses with gardens (with the potential that 0.9 ha may instead be used as a primary school);
ii) 1.1 ha for the future expansion / redevelopment of hospital facilities;
iii) 0.2 ha as a replacement car park for the adjacent Watford Football Club.
The Council's proposals to provide alternative allotments and compensation were as follows:
i) 2.7 ha area of new allotment land to replace the 2.63 ha at Farm Terrace, by extending an existing allotment site at Paddock Road, Watford, involving £750k investment;
ii) all existing Farm Terrace allotment holders were offered a space at Paddock Road or, if they preferred, a space on one of two existing sites within 1/2 to 3/4 mile of Farm Terrace — Brightwell and Holywell — which had space to accommodate the 27 remaining Farm Terrace allotment holders;
iii) financial compensation for all displaced allotment holders (whether relocating or...
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