In R (on the application of Moore) v Watford Borough Council and another [2016] EWHC 2736 (Admin), an allotment holder sought the quashing of the secretary of state’s consent under Section 8 of the Allotments Act 1925 (the “1925 Act”) for the appropriation of its allotment land to for redevelopment.
The authority could appropriate the land under Section 122 of the Local Government Act 1972, subject to a secretary of state consent under the 1925 Act. The guidance on the exercise of the 1925 Act discretion allowed the relevant criteria for consents to be breached in exceptional circumstances. The claimant asserted that if the circumstances of this case were deemed to be “exceptional”, the protective policy would lose any meaning.
The secretary of state confirmed a CPO required for the redevelopment scheme and gave a 1925 Act consent to appropriation. The authority’s CPO case was that the scheme could proceed without the allotment land. The allotments were not needed to make the scheme viable, but made it “more viable and less risky”. The claimant claimed the secretary of state had failed to properly apply the exceptional circumstances test (or breached a legitimate expectation that only truly exceptional circumstances would be used to grant consent) and failed to fairly balance the claimant’s human right rights against the desire to pursue the project.
It was held that the statutory requirements has been met. Policies cannot be absolute and the exceptional circumstances consideration was at the secretary of state’s discretion (Re Findlay [1985] AC 315 HL, R v North West Lancashire Health Authority ex parte A [2000] 1 WLR 977 CA). A flexible but objective interpretation of the policy (Tesco Stores v Dundee City Council [2012] UKSC 13) meant that “exceptional” did not mean unique, unprecedented, extraordinary or very rare, simply a circumstance “not normally encountered” (Attorney General’s Reference (No. 53 of 1998) [2000] QB 198).
The fact that the guidance criteria were not met did not create a presumption against the grant of consent. The assessment could also be cumulative (R (on the application of Basildon District Coundil) v First Secretary of State and Temple [2004] EWHC 2759 (Admin). While the court would not intrude on exercise of that discretion, it had to carry out a proportionality assessment where human rights were engaged. The enhancement of the redevelopment scheme, without any apparent alternative, less restrictive, option meant that the secretary of state was right to treat the interference with allotment holders rights as justified and proportionate, given the wider legitimate public benefits to be gained by incorporation of the allotments into the scheme. Relocation and compensation meant that a fair balance had been struck.
Roy Pinnock is a partner in the planning and public law team at Dentons
