R Jonathan Adamson v Kirklees Metropolitan Borough Council

JurisdictionEngland & Wales
JudgeMr Justice Kerr
Judgment Date09 May 2019
Neutral Citation[2019] EWHC 1129 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/4368/2018
Date09 May 2019

[2019] EWHC 1129 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Sitting at Leeds Combined Court

Judgment handed down at:

Royal Courts of Justice,

Strand, London WC2A 2LL

Before:

Mr Justice Kerr

Case No: CO/4368/2018

Between:
The Queen on the application of Jonathan Adamson
Claimant
and
Kirklees Metropolitan Borough Council
Defendant

and

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

The Claimant appeared in person (represented by FHF Consulting)

Mr Christopher Knight (instructed by Kirklees Council) appeared for the Defendant

The Interested party did not appear

Hearing date: 18 th March 2019

Approved Judgment

Mr Justice Kerr

The Hon.

Introduction

1

The main issue in this case is whether the defendant local authority (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 council wants to use the land as part of the site of a new primary school it has decided to build. Mr Adamson is in favour of the new primary school but says it should not include the allotment land used by him and 13 others, unless the minister agrees to that. He wishes to put the case to the minister that the primary school site should be differently arranged so as to spare the allotment land. He and his fellow allotment holders are not satisfied with alternative allotment land offered to them by the council.

3

Andrews J granted permission on the papers and directed service on the Secretary of State as an interested party. She commented in her order that the council could ask for his consent if it wished. The council did not do so. The Secretary of State wrote to the court declining to take part in the proceedings, reasoning that since no request for consent had been made, he should not prejudge any future such request. But he did send to the court and the parties a copy of his written policy for dealing with such requests.

4

The council also argues that even if it has “appropriated” the relevant land for use as allotments, the court should refuse any remedy, for two reasons: first, that in view of the written policy, the Secretary of State would be highly likely to bestow his consent if the council were to ask him for it; and second, that Mr Adamson has unduly delayed making his application and the granting of the relief sought would be detrimental to good administration and would cause substantial prejudice to the council and local people.

Facts (including developments in the law)

5

To understand what happened in this case, you have to look at the documents from the last century in their historical and legal context. In the 19 th century, there were certain statutory powers to acquire land for statutory purposes. Land could be appropriated for use as allotments under the Inclosure Acts 1845 to 1882. These were managed by allotment wardens.

6

Aside from allotments, there are other 19 th century examples of statutory powers to acquire land for statutory purposes. Section 175 of the Public Health Act 1875 (until repealed by the Public Health Act 1936) gave a local authority power to acquire land for the purposes of its functions under the Act of 1875. The Housing of the Working Classes Act 1890, no longer in force, gave local authorities power to acquire lodging houses for the working classes.

7

But there was then no general power to acquire land for the purpose of a local authority's statutory powers and duties. And land acquired under a specific power for a specific purpose could only be used for that purpose. The authority could not permanently divert use of the land to another purpose without statutory authority ( Attorney-General v. Hanwell Urban Council [1900] 2 Ch 377, per Lord Alverstone MR at 383).

8

In 1908, parliament passed the Small Holdings and Allotments Act of that year (the 1908 Act). Its preamble explained that it was “[a]n Act to consolidate the enactments with respect to small holdings and allotments in England and Wales”. It placed certain borough, urban district and parish councils, if they formed the view that there was a demand for allotments, under a duty to provide a sufficient number of allotments to let to persons resident in their area (section 23(1)).

9

Section 24 of the 1908 Act, until repealed by the Local Government Act 1972 (the 1972 Act), placed county councils under a duty to ascertain demand for allotments and provide them if the borough, urban district or parish councils were not doing so. Section 25, as originally enacted, gave the borough, urban district or parish councils power to acquire land by agreement or compulsorily for the purpose of providing allotments. Section 25(1) (twice later amended but not materially) remains in force.

10

Section 31 of the 1908 Act provided, until its repeal by Schedule 3 to the Land Settlement (Facilities) Act 1919, as follows:

31 List of allotments

(1) The council of a borough, urban district, or parish shall cause a list to be kept showing the particulars of the tenancy, acreage, and rent of every allotment let, and of the unlet allotments.

(2) The list shall be open to the inspection of ratepayers in the borough, district, or parish for which the allotments have been provided, in such manner as may be provided by the rules made under this Act by the council, and any ratepayer of such borough, district, or parish, without paying any fee, may take copies of or extracts from the list.

11

After the First World War, much energy was devoted to land reform legislation. In 1919, parliament placed wider duties on local authorities in relation to housing, in the Housing, Town Planning, &c. Act 1919 which amended the Housing of the Working Classes Act 1890, placed a duty on local authorities to prepare housing schemes under the 1890 Act and empowered local authorities to deal with land so acquired for housing.

12

Thus, public powers to appropriate land for specific purposes were steadily expanding, but there was still no general power to appropriate land for the purposes of carrying out local authority powers and duties. And the Hanwell Urban Council case continued to prevent diversion of land use without statutory authority away from the statutory purpose for which it had been acquired.

13

The law specifically dealing with allotments and small holdings was also developed further. Part II of the Land Settlement (Facilities) Act 1919 (the 1919 Act) made amendments to the 1908 Act. The 1919 Act received the royal assent on 19 August 1919. The amendments included the repeal of section 31 of the 1908 Act, just mentioned.

14

In place of the duty to keep a list of allotments, a new specific power to appropriate land for use as allotments was enacted in section 22(1) of the 1919 Act, first drawn to my attention by Mr Adamson during his reply. As originally enacted, it provided:

22 Power of appropriation of land

(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.

15

Section 22 appears to have remained in that form in England until 1965. It was amended in that year and again in 1980, but in attenuated form is still in force and now provides as follows:

22 Power of appropriation of land.

(1) A council of a borough, urban district, or parish may, in a case where no power of appropriation is otherwise provided, …

(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.

16

At that time, the town of Huddersfield was governed by the Huddersfield Corporation (the corporation), a statutory local authority. The corporation remained in being until 1 April 1974, when its functions were transferred under the 1972 Act to the council and to the then (since abolished) West Yorkshire Metropolitan County Council.

17

In 1920, the corporation negotiated the purchase of an estate in the borough and parish of Honley known as the Ramsden (Huddersfield) Estate (the Estate). On 4 August 1920 the Huddersfield Corporation (Lands) Act 1920 (the 1920 Act) received the royal assent. It empowered the aldermen and burgesses of Huddersfield, i.e. the corporation, to purchase the Estate for £1.36 million, with payment spread over 80 years.

18

Section 4 of the 1920 Act created the power of the corporation to acquire the Estate. By section 4(4), after the acquisition of the Estate:

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 ….

19

That was followed by a proviso:

Provided 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.

20

The council was therefore empowered, first by section 22(1)(a) ...

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