Allotment gardening — Allotments Act 1925 — Meaning of ‘adequate provision’ in section 8 — Whether alternative allotment to be equal or commensurate in fitness to allotment from which plotholders to be displaced
The respondent
council proposed to relocate displaced allotment holders from one site to two
different sites. They duly applied to the Secretary of State for the
Environment for his consent under section 8 of the Allotments Act 1925. The
Secretary of State granted consent against the recommendations of his appointed
inspector, who concluded that ‘adequate’ while not meaning that the alternative
provision would be better, did not mean significantly worse. The Secretary of
State for the Environment contended that the test of ‘adequate’ was whether a
site was one on which allotment gardening could reasonably be carried on. The
appellants appealed against the decision of Laws J dismissing their application
for judicial review contending that the phrase refers to a site which is ‘equal
in magnitude or extent; commensurate; neither more nor less’ as provided by the
Oxford dictionary.
The
appellants submissions cannot be
sustained. The meaning of the word ‘adequate’ in the dictionary begs rather
than answers the question, equal to what? Commensurate with what? Given there
is no reference in the section to the allotment holders’ existing site, that
question seems altogether more naturally answered by reference to their
reasonable needs than to the present standard they enjoy. The deputy judge’s
decision was correct: see pp82H–83B. Where a comparison between one site and
another is intended, one would expect parliament to make that clear, to
indicate it expressly. If section 8 was intended to be read as the appellants
argued, it would have used not the word ‘adequate’, but rather words such as
‘no less suitable’, or ‘equally suitable’: see p83F.
referred to in the judgments
Appeal against
the decision of Laws J
This was an
appeal against the decision of Laws J dismissing an application for judicial
review of the decision of the Secretary of State for the Environment to give
consent under the Allotments Act 1925.
(instructed by Leigh Day & Co) appeared for the applicants, Gosforth
Allotments & Gardens Association.
Drabble QC (instructed by the Treasury Solicitor) appeared for the first
respondent, the Secretary of State for the Environment.
Griffin (instructed by the solicitor to Newcastle City Council) appeared for
the second respondents.
following judgments were delivered.
SIMON BROWN LJ:
This appeal raises a short point of statutory construction: what is meant by
‘adequate provision’ in section 8 of the Allotments Act 1925. That section
reads:
Where a local
authority has purchased or appropriated land for use as allotments the local
authority shall not sell, appropriate, use, or dispose of the land for any
purpose other than used for allotments without the consent of the Secretary of
State, and such consent may be given unconditionally or subject to such
conditions as the Secretary of State thinks fit but shall not be given unless
the Secretary of State is satisfied that adequate provision will be made for
allotment holders displaced by the action of the local authority or that such
provision is unnecessary or not reasonably practicable, and where such consent
is obtained the sanction of the county council under section thirty-two of the
Smallholdings and Allotments Act 1908 shall be not be required.
(The
requirement for county council sanction, under section 32 of the 1908 Act, has
long since been repealed.)
The Secretary
of State for the Environment argues and in the decision letter under challenge
directed himself that:
‘adequate
provision’ means a site on which allotment gardening can reasonably be
undertaken by the persons who are displaced.
The allotment
holders association, applicants in these judicial review proceedings and
appellants before this court, contend on the contrary that the phrase refers to
a site which is:
at least
equal or commensurate in fitness to the allotments from which the plotholders
are to be displaced.
In other
words, the Secretary of State contends for a test which looks solely to the
merits and demerits of the proposed new site; the appellants for a test based
essentially on a comparison between the old and new sites.
Laws J, on May
23 1995, having found for the respondents, the appellants arguments are now advanced afresh before us.
The point at
issue is a pure point of law which strictly gains nothing from an exposition of
the facts. Convention nevertheless dictates that this judgment sketch in at
least the broad context in which the point arises, and this I now do. (The
detailed facts for those interested will conveniently be found set out in the
judgment below.)
Newcastle City
Council desire to dispose of the Rectory Road allotment gardens (Rectory Road),
a site which has been used as allotments since the 1930s, and to relocate the
displaced allotment holders on two other sites at Town Moor. They duly applied
to the Secretary of State for his consent under section 8. The Secretary of
State appointed an inspector to hold a non-statutory inquiry and to make
recommendations. The inspector found the alternative sites proposed at Town
Moor to be ‘considerably less attractive’ than the Rectory Road site, and
recommended that the council’s application be dismissed. The inspector had
directed himself in law as follows:
the Secretary
of State must be satisfied that ‘adequate’ alternative provision would be made
for the allotment holders which would be displaced from Rectory Road. Whilst I
do not take that to mean that the provision need be any better, I also do not
consider that it should be significantly worse.
In his
decision letter rejecting the inspector’s recommendation and granting consent
(conditional upon the council undertaking various works to improve the Town
Moor sites) the Secretary of State referred to the inspector’s view of the law
and continued:
The Secretary
of State is unable to agree with that view. He considers that in the context of
s 8, ‘Adequate provision’ means a site on which allotment gardening can
reasonably be undertaken by the persons who are displaced. Amongst the factors
which are relevant in deciding whether allotment gardening can reasonably be
undertaken are the condition of the land, water supply, site security,
proximity to the homes of plot holders and the terms of tenure of the site.
In a word, the
Secretary of State accepted that there would be disadvantages for the allotment
holders in moving to the proposed replacement site, but concluded that these
would not be sufficient to make its provision inadequate within the meaning of
section 8. It is true to say, but in my judgment nothing to the point, that in
January 1989 the Secretary of State had issued guidance upon the application of
section 8, guidance which appears perhaps more consistent with the appellants’
submission before this court than with his own present view. That guidance had
indicated that the Secretary of State could consent:
provided that
he is satisfied that the interests of displaced allotment holders had not been
prejudiced.
It then went
on however, to emphasise that the power was a discretionary one:
and the
interests of displaced allotment holders is not necessarily the only
consideration.
I shall hope
to be forgiven for saying that perhaps the thinking there was somewhat
muddle-headed.
It may also be
the case — although this is less clear and in any event would equally be
nothing to the point — that when the council, a year or two earlier, had made
essentially the self-same application to the Secretary of State for his consent
under section 8, and he had refused it, he had again indicated a view more
consistent with the appellants than with his own present view. I repeat,
however, the Secretary of State’s past attitude in this matter cannot properly
influence the true construction of section 8.
Before turning
to the arguments it is convenient first to set out the other two main statutory
provisions from which the appellants seek to derive at any rate some
assistance. Section 23(1) of the 1908 Act provides:
If the
council of any borough, urban district, or parish are of the opinion that there
is a demand for allotments … in the borough, urban district or parish, … the
council shall provide a sufficient number of allotments, and shall let such
allotments to persons … resident in the borough, district, or parish, and
desiring to take the same.
Section 32(1)
of the same Act states:
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 …
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.
Under section
23, therefore, the council must provide a sufficient number of allotments.
There being in the Newcastle area a continuing demand and thus no case for this
proposal on grounds of lack of need, the present situation involves, submit the
appellants, consideration of the suitability of the alternative sites put
forward. In accordance with section 32, they argue, such alternatives must be
‘more suitable’.
The
appellants’ central argument on the appeal fixes first upon the dictionary
definition meanings of the word ‘adequate’, in particular the first such
meaning given in the Oxford English Dictionary: ‘Equal in magnitude or
extent; commensurate; neither more nor less’.
The long title
to the 1925 Act is An act to facilitate the acquisition and maintenance of
allotments, and to make further provision for the security of tenure of tenants
of allotments.
The obvious
purpose of section 8 being, the appellants accordingly argue, the protection of
displaced allotment holders, the section must be construed so as to ensure that
their replacement site will be no less suitable. It would not, submits Mr
Hobson, be adequate if it was found in any way inferior to that which they
presently occupy, let alone ‘significantly worse’. The alternative allotments
offered must, he argues, be at least equal to or commensurate in suitability to
those from which it is proposed to displace the holders.
Attractively
and ingeniously put though it is, in my judgment, the argument is clearly
unsustainable, essentially for all the reasons given in
meaning of the words used in section 8 itself. Even assuming that the first
dictionary meaning of the word ‘adequate’, to which I have referred, is to be
preferred here to certain of the secondary meanings given — these including:
‘Suitable; fitting; equal to the occasion; competent to deal with the
situation’ — the word begs rather than answers the question, equal to what?
Commensurate with what? Given that there is no reference in the section to the
allotment holders’ existing site, that question seems to me altogether more
naturally answered by reference to their reasonable needs than to the present
standard they enjoy. There are, moreover, powerful subsidiary reasons
reinforcing that central first conclusion. One is that the appellants’
contended for construction leads to undesirable results where there is
available an alternative site which is usable but inferior. As the judge below
pointed out:
the Secretary
of State could lawfully give his consent to a disposal without requiring any
alternative site to be provided in a case where there was no site as good as
the existing allotments even though another site was available which, at least,
it would be perfectly reasonable to use for allotment gardening. In such a case
the Secretary of State would on Mr Hobson’s construction presumably be
satisfied that adequate provision was not reasonably practicable. That
would not be a sensible result.
Mr Hobson, as
I understood his argument today, sought to meet that objection by contending
that in those circumstances the Secretary of State would simply give consent on
condition that the inferior site would nevertheless be provided. But that, in
my judgment, is a wholly artificial way of construing and applying this
provision.
Second, again
as pointed out below, the chances are that any existing site will have been
thought particularly suitable for allotment gardening. Accordingly, the
prospects of satisfying the appellants
test of ‘adequate provision’ will be small and ever reducing. Such an
approach would distort the sensible operation of section 8.
Finally, where
a comparison between one site and another is intended, one would expect
parliament to make that abundantly clear, to indicate it expressly as, for
example, it is indicated in section 32 itself. There, express reference is made
to land which is ‘more suitable’. If section 8 was intended to be read as the
appellants argue, inevitably it would have used not the word ‘adequate’, but
rather words such as ‘no less suitable’, or indeed ‘equally suitable’. One of
the difficulties, indeed, in Mr Hobson’s argument is that the first dictionary
definition would rule out a superior site equally to an inferior one, but let
that pass.
The fact is
that the appellants argument here is a
wholly impossible one, even construing this 1925 Act provision with its long
title in mind and through eyes focused upon legislation of that period. In my
judgment, the judge below was clearly right to reject this challenge. I would
dismiss this appeal.
SAVILLE LJ: I agree.
ALDOUS LJ: I also agree.
Appeal
dismissed with costs.
