Kirklees Metropolitan Borough Council R (Adamson) v R (Adamson)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLady Justice Asplin,Lord Justice Lewison,Lord Justice Peter Jackson
Judgment Date18 February 2020
Neutral Citation[2020] EWCA Civ 154
Docket NumberCase No: C1/2019/1250

[2020] EWCA Civ 154

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION (ADMINISTRATIVE COURT)

Mr Justice Kerr

[2019] EWHC 1129 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Lewison

Lord Justice Peter Jackson

and

Lady Justice Asplin

Case No: C1/2019/1250

Between:
Kirklees Metropolitan Borough Council R (Adamson)
Appellant
and
R (Adamson)
Respondent

and

National Allotment Society
Intervener

and

Secretary of State for Housing, Communities and Local Government
Interested Party

Mr Christopher Knight (instructed by Kirklees Council Legal Services) for the Appellant

Mr Jonathan Adamson appeared in person (represented by FHF Consulting) for the Respondent

The Intervener and Interested Party were not represented at this hearing

Hearing dates: 05 February 2020

Approved Judgment

Lord Justice Lewison

Introduction

1

The issue on this appeal is exactly as described by Kerr J in the court below:

“whether the … council was obliged to obtain the consent of the minister before deciding to dispose of certain land in its area currently in use as allotments by the claimant, Mr Adamson, and others. That depends on whether the council has “appropriated” that land for use as allotments within section 8 of the Allotments Act 1925, as amended. If it has, it may not dispose of the land without the consent of the minister.”

2

The judge decided that the land had been appropriated for that purpose in 1935 when, as part of a town planning scheme, the council decided to zone the land for allotments. His judgment is at [2019] EWHC 1129 (Admin).

3

We had the benefit of helpful background submissions from the National Allotments Society. Although they were not directly relevant to the issue arising on the appeal, they rightly stressed the importance to local communities of allotments; and their contribution to the general health, mental well-being and social cohesion of communities. There is no doubt that the provision of allotments is in the public interest.

The land in issue

4

The land in issue is at Cemetery Road, Birkby, Huddersfield and is owned by Kirklees Council. It is used in part as allotments by Mr Adamson and others. The council wants to use the land to develop new facilities for a primary school; and, in particular for use as a playing field and car parking. In order to do that it needs to appropriate the land for use for educational purposes. The council has a general power of appropriation of land under section 122 (1) of the Local Government Act 1972. That power is exercisable where the land is “no longer required for the purpose for which it is held immediately before the appropriation”. But in the case of land which the authority has “purchased or appropriated for use as allotments” the council may not use the land for any other purpose without the consent of the Minister of Agriculture, Fisheries and Food: Allotments Act 1925 s 8. The Minister is now the Secretary of State for Housing, Communities and Local Government. It is common ground that the Minister's consent has not been obtained; although the council has recently applied for such consent.

5

The requirement under section 8 of the 1925 Act to obtain the Minister's consent does not apply to all land which is in fact used as allotments. It applies only to land which has been “purchased or appropriated” for that purpose: Snelling v Burstow Parish Council [2013] EWCA Civ 1411, [2014] 1 WLR 2388.

6

The council took its decision to appropriate the land for educational purposes on 21 August 2018. The question, then, is whether it had previously purchased or appropriated the land for use as allotments. If it had, then the decision to appropriate the land for educational purposes was invalid, because the Minister's consent had not been obtained.

7

The council (or, to be accurate, its predecessor) acquired the land in 1920 under powers conferred by a private Act of Parliament. At the time the land consisted of what was known as the Ramsden estate. It is not disputed that the council did not purchase the land for use as allotments. But it has been used as allotments since at least 1935. So the question can be more narrowly formulated: did the council appropriate the land for use as allotments at some time before 21 August 2018?

The statutory framework

8

The relevant statutory powers in the period under consideration were as follows. Section 25 of the Small Holdings and Allotments Act 1908 provided:

“The Council of a borough, urban district, or parish may, for the purpose of providing allotments, by agreement purchase or take on lease land, whether situate within or without their borough, district, or parish..”

9

Section 22 of the Land Settlement (Facilities) Act 1919 provided:

“(1) A council of a borough, urban district, or parish may, in a case where no power of appropriation is otherwise provided, with the consent of the Board of Agriculture and Fisheries and the Local Government Board, and subject to such conditions as to the repayment of any loan obtained for the purpose of the acquisition of land or otherwise as the last-mentioned Board may impose,—

(a) appropriate for the purpose of allotments any land held by the council for other purposes of the council; or

(b) appropriate for other purposes of the council land acquired by the council for allotments”

10

Section 22 remained in that form until 1965.

11

The statute authorising the initial purchase of the Ramsden estate was a private Act of Parliament called the Huddersfield Corporation (Lands) Act 1920. Section 4 (4) of that Act provided that following the acquisition:

“the same or any part or parts thereof may be appropriated to any undertaking or to any of their powers or duties and when so appropriated a transfer of the outstanding loan in respect thereof shall be effected to the proper account in the books of the Corporation”

12

This was subject to the proviso:

“…that nothing in this sub-section shall authorise the Corporation—

(b) To appropriate such lands to any purposes other than purposes for which and subject to the conditions under which they are for the time being authorised to acquire and use lands”

13

Section 5 of the 1920 Act gave the council wide powers to retain, manage and dispose of the land “for such purpose and upon such terms and conditions in all respects as they shall think fit.”

14

Section 163 of the Local Government Act 1933 provided:

“(1) Any land belonging to a local authority and not required for the purposes for which it was acquired or has since been appropriated may be appropriated for any other purpose approved by the Minister for which the local authority are authorised to acquire land.”

15

The judge traced the evolving legislative history of allotments and town planning. There were a number of highlights on this journey. Section 23 of the 1908 Act imposed a duty on certain borough, urban district and parish councils, if they formed the view that there was a demand for allotments, to provide a sufficient number to let to persons in their area. In 1922 section 14 of the Allotments Act 1922 imposed on the council a statutory duty to establish an allotments committee. In 1925 Parliament passed two relevant Acts. The first was the Town Planning Act 1925. This gave local authorities power to make a town planning scheme (s. 2); and imposed a duty to make such a scheme on councils of every borough or urban district with a population of more than 20,000 (s. 3). The second was the Allotments Act 1925. Section 3 of that Act provided:

“(1) Every local authority or joint committee of local authorities preparing a town-planning scheme in pursuance of the Town Planning Act, 1925, shall, in preparing such scheme, consider what provision ought to be included therein for the reservation of land for allotments.

…..

(3) The council of every borough or urban district, any part of whose district is within the area of a town-planning scheme, shall take into consideration from time to time, but at least once in every year, the question whether any and, if so, what lands within the area of the scheme are needed for allotments, whether reserved for the purpose or not, and ought to be acquired under and in accordance with the provisions of the Allotments Acts, 1908 to 1922, as amended by this Act”

16

The Town Planning Act 1925 was repealed by the Town and Country Planning Act 1932. Section 1 of that Act provided, so far as relevant:

“A scheme may be made under this Act with respect to any land, whether there are or are not buildings thereon, with the general object of controlling the development of the land comprised in the area to which the scheme applies…”

17

It is common ground that, by virtue of section 54 (1) (c) of the 1932 Act, the reference in section 3 of the Allotments Act 1925 to the Town Planning Act 1925 was to be construed as a reference to the corresponding provision in the 1932 Act.

The facts

18

As noted, the land was acquired in 1920. Evidence of contemporaneous Ordnance Survey maps suggests that it was not used as allotments at that time. Nor was it recorded as being in use as allotments on the 1922 or 1932 Ordnance Survey maps. It was, however, the subject of an aerial photograph taken in 1949 which did show it in use for allotments. It is accepted by the council that its use as allotments began at some time in the mid-1930s.

19

In 1923 the council resolved to constitute its Agricultural Committee as an allotments committee in accordance with its duty under the 1922 Act. Under the terms of the resolution the Agricultural Committee had delegated to it all the council's powers and duties under the Allotment Acts (except for the raising of a rate). In 1929 the council's Agricultural (Special) Sub-Committee met to consider the subject of “permanent allotments”. The brief minute makes...

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