Land – Appropriation – Allotments – Respondent allotment owner applying for judicial review of decision of appellant local authority to appropriate land for use as allotments – High court granting application – Appellant appealing – Whether appellant making formal decision to appropriate land for allotments – Whether appellant entitled to exercise power to appropriate land for use for educational purposes without consent of secretary of state – Appeal allowed
Land at Cemetery Road, Birkby, Huddersfield was owned by the appellant local authority, having been acquired by its predecessor by a private Act of 1920. It was used in part as allotments by the respondent and others. The appellant wanted to use the land to develop new facilities for a primary school. In order to so, it needed to appropriate the land for use for educational purposes under its general power of appropriation in section 122(1) of the Local Government Act 1972. That power was exercisable where the land was “no longer required for the purpose for which it is held immediately before the appropriation”. But in the case of land which the appellant had purchased or appropriated for use as allotments, the appellant might not use the land for any other purpose without the consent of the secretary of state: section 8 of the Allotments Act 1925. Such consent had not been obtained although the appellant had applied for it.
The appellant took its decision to appropriate the land for educational purposes in 2018. The respondent applied for judicial review of that decision. An issue arose whether the appellant was obliged to obtain the consent of the secretary of state before deciding to dispose of the allotment land.
The High Court allowed the application, concluding that the appellant had statutorily appropriated the site for allotment use when it recorded its decision in committee minutes to zone the site for allotments in December 1935. Therefore, the site could not be appropriated for a different use without consent: [2019] EWHC 1129 (Admin). The appellant appealed.
Held: The appeal was allowed.
(1) A local authority was a creature of statute. It could do only what it was authorised to do by statute, either expressly or by necessary implication. Where a local authority acquired land for one purpose, it could not use the land for a different purpose unless authorised to do so by statute: Attorney-General v Hanwell Urban District Council [1900] 2 Ch. 377 applied. The mechanism by which a local authority, having acquired land for one purpose, was enabled to use it for a different purpose was appropriation.
There was no general definition of what constituted an appropriation, either in statute or in the case law. The word took its meaning from its context. If the power to appropriate was conditional, any conditions had to be satisfied before the power could be exercised. The decision-maker as to whether the land was no longer required for a particular purpose was the local authority itself, although its decision would be open to challenge on public law grounds. Other conditions, such as obtaining the consent of the secretary of state, where applicable, also had to be satisfied before the power could be validly exercised: R (on the application of Goodman) v Secretary of State for Environment, Food and Rural Affairs [2015] EWHC 2576 (Admin); [2015] PLSCS 267, Ramsgate Town Council v Thanet District Council [2018] EWHC 3042 (Ch) and R (on the application of Day) v Shropshire Council [2019] EWHC 3539 (Admin) applied.
(2) The best way of showing that appropriation had taken place was by recording it in a formal resolution or minute of the meeting of the local authority that took the decision in question. But no particular evidence was required to enable the court to conclude that the necessary deliberative process had taken place; or that any required conditions had been satisfied. The mere fact that land had been used for a particular purpose might be insufficient evidence from which to infer that such a process had taken place; but that was a question of evidence rather than law. In evaluating the evidence, a court also had to make allowances for the fact that, where the event alleged to have given rise to the appropriation took place many decades ago, many relevant documents might have been destroyed, lost or mislaid. It was permissible, in appropriate circumstances, to infer the existence of resolutions that had been lost; that there was evidential significance in the identity of the council’s committee that managed the land; and that there was evidential significance (albeit limited) in how the land was in fact used: R (on the application of Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs [2019] UKSC 58; [2019] EGLR 4 followed.
(3) The power of appropriation conferred by the 1920 Act was drawn in extremely wide terms. In order to exercise that power, there was no requirement for prior consent; nor any requirement that the appellant be satisfied of anything in particular. The only limitation was that the purpose for which the land was appropriated was a purpose for which the appellant was entitled to hold land.
The meeting of December 1935 was explicitly concerned with a town planning scheme, the purpose of which was to identify land in actual use as allotments. Some of that land was under the control of the committee; some was not. The minute and the town plan could not be supposed to have different effects on different parcels of land, depending purely on the happenstance of ownership. Subsequent proceedings of both the appellant’s agricultural committee and the estates committee made it clear that neither thought that the appeal land had been appropriated for use as allotments. That evidence showed that they knew how to exercise a power of appropriation under the 1920 Act and what accounting adjustment needed to be made in accordance with section 4 of that Act. The judge was wrong to discount that evidence. His task was to decide, having considered all the evidence, whether it was more likely than not that the appellant had appropriated the land for allotment purposes.
In all the circumstances, the minute of December 1935 was not an appropriation in the sense in which that expression was used in section 8 of the 1925 Act. It followed that the consent of the secretary of state was not needed before the appellant decided to appropriate the land for educational purposes.
Christopher Knight (instructed by Kirklees Council Legal Services) appeared for the appellant; the respondent appeared in person.
Eileen O’Grady, barrister
