Redevelopment – Allotments – Appropriation – Claimant applying for judicial review of decision of defendant secretary of state granting consent for local authority appropriation of allotments for redevelopment – Whether defendant misunderstanding guidance when applying insufficiently high threshold to qualifying exceptional circumstances – Whether defendant making disproportionate or irrational decision at common law – Whether decision failing to achieve fair balance between claimant’s human rights and local authority’s desire to pursue redevelopment scheme – Application dismissed
The claimant applied for judicial review of a decision of the defendant secretary of state to grant consent to the first interested party local authority under section 8 of the Allotments Act 1925, and applying the 2014 “Allotment Disposal Guidance: Safeguards and Alternatives”, for the appropriation of 2.63 hectares of allotment land at Farm Terrace, Watford for use as part of a mixed-use redevelopment scheme known as the Watford Health Campus Scheme. The defendant had issued policy guidance indicating the approach he intended to adopt in determining applications under section 8, setting out four policy criteria to be satisfied before consent to disposal could be granted. The guidance envisaged that in exceptional circumstances the defendant could grant consent for disposal where the statutory criteria were met but not all of the policy criteria were satisfied. In the present case, the statutory criteria were met but one of the policy criteria was not. However, the defendant concluded that there were exceptional circumstances justifying the grant of consent to the appropriation of the allotments.
The claimant tended an allotment at the site and was also chairman of a Community Association set up to protect the allotments from development. The opposition to the appropriation by the claimant and others was supported by the National Allotment Society (the second interested party), which had to be consulted in accordance with the policy criteria. The plot-holders had been offered alternative allotment sites which they regarded as unsuitable. The first interested party decided to appropriate the allotments and terminate the remaining tenancies, on 3 months’ notice, with financial compensation exceeding the statutory minimum (£1,000 for those giving up their tenancy; £750 for those moving to another site, together with help with the move).
The claimant contended, among other things, that: (i) the defendant had misunderstood his guidance when applying an insufficiently high threshold to the circumstances required to qualify as exceptional; (ii) the defendant had failed to apply that high threshold such that the decision was disproportionate or irrational at common law; and (iii) the decision had failed to achieve a fair balance between the rights of the claimant under article 1 of Protocol 1 of the European Convention on Human Rights (A1P1 rights) and the desire of the first interested party to pursue the scheme.
Held: The application was dismissed.
(1) The term “exceptional circumstances” had to be interpreted in the context of section 8, which conferred a broad discretion upon the defendant to grant or refuse consent, and the guidance. The underlying purpose of the 1925 Act was to control the disposal of allotment land and protect allotment holders. The guidance afforded greater safeguards against appropriation of allotments than the Act because of the value placed on allotments by the defendant. The guidance was not to be construed narrowly. The policy safeguards were intended to be achieved by the requirement that the four policy criteria ought generally to be met before consent would be granted. It was only in exceptional circumstances that consent would be granted if the four policy criteria were not met and the onus was on the applicant council to provide evidence of the exceptional circumstances that could justify disposal of the allotments. Where the four policy criteria were met, in addition to the statutory criteria, there was no presumption against the grant of consent. Where the four policy criteria were not met, the defendant had a discretion to grant consent in exceptional circumstances. The correct interpretation of the guidance was that the defendant would exercise his discretionary judgment as to whether or not exceptional circumstances existed, on the individual facts of each application which came before him. The policy criteria did not give rise to a strong presumption against the grant of consent.
(2) The defendant’s careful, structured decision demonstrated that he was well aware of the correct “exceptional circumstances” test and applied it and had not misapplied the guidance. The reference to the benefits of appropriation outweighing the benefits of retaining the existing allotment land was a legitimate part of the defendant’s assessment into whether there were “exceptional circumstances” and the defendant had taken into account the disadvantages of the appropriation, which had been the subject of representations from the claimant and others. At no stage did he either expressly state or imply that the correct starting point was merely to weigh the benefits of the appropriation against its disadvantages, as if the two were of equal weight. There was nothing in section 8 of the 1925 Act or the guidance which precluded the defendant from having regard to potential future benefits. The weight to be given to those benefits was a matter for the defendant. The defendant had been entitled to proceed upon the basis that there was a possible alternative use for part of the allotments as a new school which had not yet been settled, but which would in itself bring a public benefit. It was a matter for him, in the exercise of his discretion, to decide whether, despite uncertainty in respect of one aspect of the proposal, he ought to grant consent for appropriation. On the evidence before him, the defendant was entitled to reach the conclusions which he did, exercising his discretionary judgment within the statutory and policy framework, which was correctly applied. He took into account all relevant considerations, did not take into account any irrelevant considerations, and his conclusions were rational.
(3) The defendant had been correct to hold that the interference with the A1P1 rights of the allotment holders was justified and proportionate because of the wider public benefits to be gained by incorporation of the allotments into the scheme. Given the allocation of new allotments nearby, the assistance to re-locate, and financial compensation to the allotment holders, a fair balance had been struck.
Jason Coppel QC and Christopher Knight (instructed by Deighton Pierce Glynn) appeared for the claimant; Zoe Leventhal (instructed by the Government Legal Department) appeared for the defendant; Robin Green (instructed by Watford Borough Council) appeared for the first interested party; Yaaser Vanderman (instructed by Buckles Solicitors LLP) appeared for the second interested party.
Eileen O’Grady, barrister