Susan Snelling and Another v Burstow Parish Council
| Jurisdiction | England & Wales |
| Judge | Ms Vivien Rose |
| Judgment Date | 24 January 2013 |
| Neutral Citation | [2013] EWHC 46 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC12C00065 |
| Date | 24 January 2013 |
[2013] EWHC 46 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Vivien Rose
(sitting as a Deputy Judge of the Chancery Division)
Case No: HC12C00065
Emma Dring (instructed by Messrs Edward Harris) for the Claimants
Estelle Dehon (instructed by Hedleys Solicitors) for the Defendant
Hearing date: 11 December 2012
This claim raises a difficult point of construction relating to statutes governing the acquisition and disposal of garden allotments. The Claimants are both allotment holders at a site called Hunter's Moon in Burstow, Surrey. The Defendant parish council ('the Council') is the freehold owner of the site. The Council wishes to sell part of the site in order to build housing there. The sale would result in about ten allotment holders being displaced but they can, the Council says, all be accommodated on other land within the same Hunter's Moon site or on a new site about 1.2 kilometres away.
The legislation
The issue raised by the Claimants is as to what power the Council can use to sell part of the Hunter's Moon site. Because I need to refer to so many different pieces of legislation in this judgment, it may help to set out at the start a table showing the relevant legislation in chronological order, indicating how I will refer to the Act in this judgment and highlighting the key provisions.
| Act of Parliament | Reference in this Judgment | Relevant sections | |
| Inclosure and Improvement of Commons Act 1845 | 31 | Power to appropriate allotments to the labouring poor | |
| 27 | Power of sale that the Claimants contend applies to Hunter's Moon | ||
| LGA 1894 5(2) 6(1)(c)(iii) & 6(4) | Vesting of field gardens in parish councils | Transfer of management of field gardens to parish council | |
| SH&A Act 1908 | 25 32 33 | Power to purchase or lease land for the purpose of providing allotments Power of sale that the Council contends applies to Hunter's Moon Transfer of management of field gardens to parish council and deeming of acquisition under SH&A Act 1908 | |
| 8 | Requirement of consent of Secretary of State to sale of certain allotments | ||
| LGA 1972 | 126 | Power of councils to appropriate land for use as allotments |
Section 31 of the Inclosure Act 1845 (since repealed) provided that where the Inclosure Commissioners proposed to enclose land by Order under that Act, they could 'require and specify as One of the Terms and Conditions of such Inclosure the Appropriation of such an Allotment for the labouring Poor as the Commissioners shall think necessary, with reference to the Circumstances of each particular Case'. Where such a condition was imposed on the Inclosure, the Valuer of the land was required under section 73 'to set out and allot' that part of the land to the Churchwardens and Overseers of the poor of the parish in which the allotment was situated. Section 73 of the Inclosure Act 1845 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…'
Under section 108 of the Inclosure Act 1845, the Churchwarden and others who were put in charge of managing the allotments were styled the 'Allotment Wardens' of the Parish.
The Commons Act 1876, in its Preamble, stated that allotments that were created for the labouring poor under the Inclosure Acts 1845 to 1868 were to be referred to in that Act as 'field gardens'. Section 27 of the Commons Act 1876 dealt in its first paragraph with amending the provisions of the Inclosure Act 1845 which stipulated the possible uses to which any surplus rents generated by recreations grounds and field gardens could be put. However, the second paragraph of section 27 provides that:
'… 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.'
That power of sale under section 27 of the Commons Act 1876 was, therefore, very circumscribed. It required the consent of the Inclosure Commissioners; that consent could only be given if the intention was to buy other more suitable allotment land and the proceeds of any sale were not released to the allotment wardens but kept by the Commissioners until the replacement land was purchased.
The LGA 1894 dealt with the transfer of land, powers and duties from churchwardens to the parish councils upon the parish councils coming into office:
(i) by section 5(2)(c) all land that was vested in churchwardens and overseers, other than property connected with the affairs of the church, was vested in the parish council, 'subject to all trusts and liabilities affecting the same';
(ii) by section 6(1)(b) the powers, duties and liabilities of churchwardens, except so far as related to the affairs of the church, were transferred to the parish council;
(iii) by section 6(1)(c)(iii) the powers, duties and liabilities of churchwardens and overseers with respect to the holding or management of allotments were transferred to the parish council;
(iv) section 6(4) provided that where any Act constitutes any persons wardens for allotments, then the powers and duties of the wardens shall be exercised and performed by the parish council.
Further provision about the holding and management of allotments by councils was made by the SH&A Act 1908. Under section 23 of that Act, if a council was of the opinion that there was a demand for allotments, the council was under a duty to provide a sufficient number of allotments and let them to persons resident in the parish. Section 25 conferred a power to purchase or take land on lease for the purpose of providing allotments and to acquire land compulsorily under the compulsory purchase powers conferred elsewhere in the Act.
Subsequent sections of the SH&A Act 1908 set out how the allotments were to be run by the councils (including borough, urban district and parish councils). Although most of these provisions have since been repealed, they cast some light on the scheme that Parliament intended to set up under that Act. Thus, section 26 allowed councils to make improvements to land acquired by them for allotments. Section 27 set out various provisions governing the council's letting of the land and the fixing of the rents, including a provision that no one person could hold allotments exceeding five acres and that allotments should not be sublet. Section 28 empowered the council to make rules governing the letting of allotments in order to prevent 'any undue preference in the letting thereof', and generally for carrying the provisions of the Act into effect. The rules could define the people eligible to be tenants of allotments and were 'binding on all persons whatsoever'. The councils were given power to appoint allotment managers to do anything in relation to the management of allotments that the councils were empowered to do, including to incur expenses. Section 30 provided for what was to happen if an allotment holder fell into arrears with his rent.
Section 32 of the SH&A Act 1908 provided a power of sale for superfluous or unsuitable land. The wording of section 32 is as follows:
'32 (1) Where the council of any borough, urban district, or parish are of the 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.'
The provision as originally enacted included the requirement for the consent of the county council to any sale as set out in italics above, but this requirement was repealed by the LGA 1972.
Section 33 of the SH&A Act 1908 is an important provision for our purposes. It comes at the end of the part of the Act dealing with allotments and it is worth setting most of it out, as originally enacted, though with some excisions to make it more easily comprehensible.
'33. (1) The allotment wardens under the Inclosure Acts 1845 to 1882, having the management of any … allotments or field gardens … may, by agreement, with the council … transfer the management of that land to the council, upon such terms and conditions as may be agreed upon with the sanction, as regards the allotment wardens of the Board, and thereupon the land shall vest in the council.
(2) All trustees within the meaning of the Allotments Extension Act 1882,...
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