Susan Snelling and Another (Claimants/Appellants) v Burstow Parish Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lord Justice Christopher Clarke,Lord Justice Treacy |
| Judgment Date | 12 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1411 |
| Docket Number | Case No: A3/2013/0389 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 November 2013 |
[2013] EWCA Civ 1411
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, CHANCERY DIVISION
Miss Vivien Rose QC (sitting as a Deputy Judge of the Chancery Division)
HC12C00065
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lord Justice Treacy
and
Lord Justice Christopher Clarke
Case No: A3/2013/0389
Ms Emma Dring (instructed by Messrs Edward Harris) for the Appellants
Ms Estelle Dehon (instructed by Hedley's Solicitors) for the Respondent
Burstow Parish Council ("the Council") is the freehold owner of some allotments at a site known as Hunter's Moon in Burstow, Surrey. The Council wishes to sell part of the site (about 0.353 ha out of a 1.24 ha) for development as affordable housing. This is objected to by the claimant allotment holders who have sought in different ways to challenge the legality of the proposed sale. This appeal is brought by the claimants against the order of Ms Vivien Rose (as she then was) dated 24 th January 2013 who dismissed their claim for a declaration that the Council's power of sale is limited to that contained in s.27 of the Commons Act 1876 ("the 1876 Act"). If the claim is correct it would require the Council to identify alternative land which is more suitable for use as allotments and, in particular, to use the proceeds of sale in the purchase of that land.
The Council has taken the view and contended successfully before the judge that they are entitled to exercise the power of sale contained in s.32 of the Small Holdings and Allotments Act 1908 ("the 1908 Act") as qualified by the Allotments Act 1925 ("the 1925 Act"). This would permit them, subject to obtaining the consent of the Secretary of State for Communities and Local Government, to sell the land unconditionally provided that they are satisfied that it is not required for the purpose of allotments. As I understand it, the Council takes the view that any displaced allotment holders can either be accommodated on other parts of the Hunter's Moon site or on an alternative site some 1.2 kilometres away. They have therefore sought and obtained the consent of the Secretary of State to the proposed sale on the basis that they are now able to exercise the s.32 power.
The judge decided that the Council is right in is contention about s.32 of the 1908 Act: see [2013] EWHC 46 (Ch). Her decision is challenged by the claimants on a number of grounds, all of which are ultimately points of statutory construction. The resolution of this issue requires the court to make sense of a number of what the judge accurately described as rather tangled statutory provisions. But it is convenient to begin with what seems to be common ground.
The land at Hunter's Moon was enclosed and appropriated as allotments for the labouring poor under an inclosure award made in 1855 pursuant to s.31 of the Inclosure and Improvement of Commons Act 1845 ("the 1845 Act"). The effect of the award was to place the management of the allotments under the control of the incumbent churchwardens and two other nominated persons in the relevant parish, who were styled "Allotment Wardens" by s.108 of the 1845 Act. Section 73 further provided that:
"All Allotments which shall be made to the Churchwardens and Overseers under this Act shall be held by the Churchwardens and Overseers of the Poor for the Time being in the same Manner and with the same legal Powers and Incidents as if the same Allotments were Lands belonging to the Parish, but in trust nevertheless for the Purposes for which the same shall be allotted…"
The 1876 Act amended the 1845 Act by including a number of additional powers and provisions relating to the use of allotments and the income which they generated. Under s.27 surplus rents from allotments appropriated for the benefit of the labouring poor under the Inclosure Acts (which are referred to in the 1876 Act as "field gardens") were to be used for the improvement of field gardens in the same parish and:
"… the allotment wardens of any field gardens may, with the approval of the Inclosure Commissioners, sell all or any part of the allotment vested in them, and out of the proceeds of such sale purchase any fit and suitable land in the same parish or neighbourhood: Provided, that the land so purchased shall be held in trust for the purposes for which the allotment so sold as aforesaid was allotted, and for no others; and provided, that the Inclosure Commissioners shall not sanction any such sale as aforesaid unless and until it shall be proved to their satisfaction that land more suitable for the purposes for which the allotment proposed to be sold was allotted may and will be forthwith purchased; and the proceeds of any such sale shall be paid to the Inclosure Commissioners, and shall remain in their hands until such purchase of other land as aforesaid."
The Local Government Act of 1894 ("the LGA 1894") brought into existence parish councils. Section 5(2)(c) provided that:
"The legal interest in all property vested either in the overseers or in the churchwardens and overseers of a rural parish, other than property connected with the affairs of the church, or held for an ecclesiastical charity, shall, if there is a parish council, vest in that council, subject to all trusts and liabilities affecting the same, and all persons concerned shall make or concur the making such transfers, if any, as are requisite for giving effect to this enactment."
The powers, duties and liabilities of churchwardens and overseers of the parish in relation to the holding or management of allotments were transferred to parish councils under s.6(1)(c)(iii). This would therefore have included the power of sale contained in s.27 of the 1876 Act.
The Council in this case came into existence on 1 st January 1895 and at its first meeting on 7 th January two members of the Council were formally appointed as Allotment Wardens in conformity with s.6(4) of the LGA 1894. This provided that:
"Where any Act constitutes any persons wardens for allotments, or authorises or requires the appointment or election of any wardens committee or managers for the purpose of allotments, then, after a parish council for the parish interested in such allotments comes into office, the powers and duties of the wardens, committee, or managers shall be exercised and performed by the parish council, and it shall not be necessary to make the said appointment or to hold the said election, and for the purpose of section sixteen of the Small Holdings Act, 1892, two members of the parish council shall be substituted for allotment managers or persons appointed as allotment managers."
The 1908 Act is described in its preamble as:
"An Act to consolidate the enactments with respect to Small Holdings and Allotments in England and Wales".
But it also confers a number of new powers and duties on borough, urban district and parish councils to provide and manage allotments. These include a duty under s.23 to provide a sufficient number of allotments for the "labouring population" in the event of a shortfall in the number of available allotments on private land; a power under s.25 to purchase or lease land for use as allotments including a power of compulsory purchase; and in sections 27 and 28 provisions governing the allocation and letting of allotments. "Allotments" are defined in s.61(1) of the Act as including field gardens.
Section 32 of the 1908 Act contains a power of sale which, as originally enacted, was in the following terms:
"(1) "Where the council of any borough, urban district, or parish are of opinion that any land acquired by them for allotments or any part thereof is not needed for the purpose of allotments, or that some more suitable land is available, they may, with the sanction of the county council, sell or let such land otherwise than under the provisions of this Act, or exchange the land for other land more suitable for allotments, and may pay or receive money for equality of exchange.
(2) The proceeds of a sale under this Act of land acquired for allotments, and any money received by the council on any such exchange as aforesaid by way of equality of exchange, shall be applied in discharging, either by way of a sinking fund or otherwise, the debts and liabilities of the council in respect of the land acquired by the council for allotments, or in acquiring, adapting, and improving other land for allotments, and any surplus remaining may be applied for any purpose for which capital money may be applied; and the interest thereon (if any) and any money received from the letting of the land may be applied in acquiring other land for allotments, or shall be applied in like manner as receipts from allotments under this Act are applicable."
The reference to the need for the sanction of the county council contained in s.32(1) was deleted by s.272(1) of and Schedule 30 to the Local Government Act 1972 which, as part of local government re-organisation, transferred powers in respect of allotments from county and district councils to parish councils.
The s.32 power as enacted was one of the new powers conferred by the 1908 Act on local councils consequent on their duty under s.23 to provide sufficient allotments for the labouring population in their respective boroughs, districts and parishes and the reference in the first part of s.32(1) to land acquired by them could properly be read in that context as referring to allotment land acquired under the powers...
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