Ian Wood and Another v Leeds City Council
| Jurisdiction | England & Wales |
| Judge | Judge Behrens |
| Judgment Date | 05 August 2014 |
| Neutral Citation | [2014] EWHC 2598 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/17267/2013 |
| Date | 05 August 2014 |
[2014] EWHC 2598 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Court House
Oxford Row
Leeds LS1 3BG
His Honour Judge Behrens sitting as a Judge of the High Court in Leeds
Case No: CO/17267/2013
The Queen on the Application of
Richard Clayton QC (instructed by Irwin Mitchell LLP) for the Claimants
Christopher Baker (instructed by Karen Blackmore, Leeds City Council) for the Defendant
Hearing dates: 16, 17 July 2014
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This application for judicial review is made on behalf of Leeds and District Allotment Gardeners Federation ("LDAGF"). It arises out of a decision made by the Executive Board of Leeds City Council ("the Council") on 4th September 2013. The effect of the decision was substantially to increase the rent payable by allotment holders over a three year period commencing in October 2014. This, together with other cost cutting measures, would have the effect of reducing the loss to the Council of administering the allotment facilities from £133,000 per annum to nil.
The decision made on 4 th September 2013 was subject to the "Call In Procedure" and was duly called in. At a meeting of the Scrutiny Board on 25 th September 2013 it was resolved that the decision be released for implementation.
It will, of course, be necessary to consider the law in more detail later in this judgment. However as s 10 of the Allotments 1950 Act is central to the issues between the parties it is convenient to set it out here. S 10(1) provides:
10 Rents to be charged for allotments let by local authorities.
(1) Land let by a council under the Allotments Acts, 1908 to 1931, for use as an allotment shall be let at such rent as a tenant may reasonably be expected to pay for the land if let for such use on the terms (other than terms as to rent) on which it is in fact let:
Provided that land may be let by a council as aforesaid to a person at a less rent if the council are satisfied that there exist special circumstances affecting that person which render it proper for them to let the land to him at a less rent.
LDAGF contends that the Council has acted unlawfully on the following grounds:
1. the Council misconstrued or misapplied s 10 of the Allotment Act 1950 ("the 1950 Act");
2. the Council failed to take account of relevant consideration, namely evidence indicating the rent a tenant may reasonably be expected to pay for the land if let for use as an allotment on the terms (other than terms as to rent) on which it is in fact let, as s 10 requires it to do;
3. the Council took account of an irrelevant consideration, namely the Council's own financial position and its wish to eliminate the subsidy, which s 10 precludes it from doing; and
4. in any event, the Council's conclusion on the rent level to be set was irrational.
The claim is disputed by the Council in its entirety. It contends that the fixing of the rent was a valid exercise of its powers under s 10 of the 1950 Act. It contends that the application for judicial review was not made promptly and/or was unduly delayed with the result that relief should be refused. Furthermore, and as a separate ground, it contends LDAGF had the alternative remedy of referring the matter to the Ombudsman.
These proceedings were issued on 3 rd December 2013. On 28 th March 2014 I granted permission on the papers. In so doing I expressly left open the question whether the proceedings were brought promptly or whether there was an alternative remedy. The matter was argued on 16 th and 17 th July 2014 when judgment was reserved.
Before dealing with the case in detail it is right that that I should acknowledge with thanks the very detailed skeleton arguments and the full clear oral submissions that I have received. I am also extremely grateful for the research carried out by Counsel and particularly Mr Baker after the oral argument on the convoluted legislative history relating to the repeal of section 11 of the Allotments Act 1950 and on the power of the Scrutiny Board.
The facts
Allotments in Leeds
The Council's Parks and Countryside service is responsible for 97 allotment sites. There are nearly 4,000 plots, a full-size plot measuring 250 sq. metres. There is a waiting list of about 1,500. As at September 2013, the annual rent for an allotment plot was as follows:
| Non-concessionary rent | Concessionary rent | |
| Full plot (250 sq m) | £37–00pa | £18–50pa |
| Half plot (125 sq m) | £18–50pa | £9–25pa |
Concessions were granted to those in receipt of state pension, eligible disabled people, the unemployed and full-time students.
The Parks and Countryside service directly manages 37 of the 97 allotment sites. The other 60 sites are managed by (unincorporated) allotment associations composed of allotment-holders. Each of the latter sites is the subject of a lease granted to the trustees of the respective association.
The leases were for just under 7 years, but were terminable on 12 months notice. They provided for each association to collect the rents due from allotment-holders and permitted the association to retain two-thirds of that amount for its own purposes; the remaining one-third was payable by the association to the Authority by way of rent under the lease. Through their respective associations, allotment-holders could accordingly themselves spend two-thirds of the rents charged, on such matters as they might decide.
Under clause 2.8 the allotment rent was defined as the rent for individual plots as set by the Council from time to time and notified to the trustees. The leases contained a number of covenants by the association including covenants to collect the rents from individual plot holders, to pay one third of the gross rental income to the Council, to manage the lettings, to manage the land, and to keep accounts. In addition to the break clauses they contain provisos for re-entry for non payment of rent and other breaches of covenant.
The meeting of 12 th November 2012.
The provision of allotments was considered by Safer and Stronger Communities Board on 12 th November 2012. The report by the officer to the Board makes a number of points:
1. Demand for allotments has increased over the years with the waiting list as at October 2011 of 1,858
2. Allotment charges are agreed via the Allotment Working Group and a full year's notice is given to plot holders of any planned increase. Any increases in allotment rent have been kept in line with inflation.
3. The projected income received by the Council for the year amounted to £44,995 and projected cost amounted to £177,850. There was accordingly a loss to and/or a subsidy by the Council of £132,855.
4. There was a need to increase the number of allotments to meet the demand from 0.19 hectare per 1,000 of population to 0. 24 per 1,000 of population.
The Board resolved to note the report and raised a number of issues not relevant to this dispute.
The meeting of the Allotments Working Group ("AWG") on 13 th April 2013
In 2012/13, the Council's budget for the Parks and Countryside service was reduced by £2 million with a further reduction of £0.6 million in 2013/2014. One of the matters it sought to address was the subsidy in relation to the provision of allotments.
At a meeting of the AWG on 13 th April 2013 attended by a number of allotment associations including Mr Wood, the Chair (Joanna Clough) informed the group of the net deficit and that a consultation document would be sent to all allotment holders including the wider public to seek people's views on a number of options that would help address the £132k deficit. She summarised in general terms the three options that were being considered.
The Consultation Document
In May 2013, the Council distributed a consultation document to 3,400 allotment-holders, 51 allotment associations, LDAGF and 99 Ward Members. The Consultation Document is 4 pages long and includes:
This consultation concerns allotment facilities that are managed by the Council's Parks and Countryside service. The provision of allotments is heavily subsidised by the Council by around £130k each year, and furthermore the Council is under acute financial pressure and needs to economise where possible.
Savings are needed and a recent report to the Council's Executive Board identified the need to remove the subsidy from allotment provision. The Council is therefore considering how it might review the way allotments are managed and the pricing structure to deliver these savings …
It went on to propose 3 options:
1. To cover the deficit by increasing the rents for all allotment-holders, in proportion to what they currently paid;
The effect of this would be to increase the full plot price to non-concession holders to £103.07 and to concession holders to £51.53. Half plot prices would be half of this. The increase was to be phased. The level of income to be retained by the association was to be the same with the result that the percentage retained would decrease from two thirds to around 24%.
2. To cover the deficit by increasing the non-concessionary rents only;
The effect of this would be to increase the full plot price to non-concession holders to £123.43 whilst concession holder's rent would not...
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