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 ([1996] 1 EGLR 147; [1996] 04 EG 130) 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.
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. 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’.
No cases are referred to in this report
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.
John Hobson (instructed by Leigh Day
& Co) appeared for the applicants, Gosforth Allotments & Gardens
Association; Richard Drabble QC (instructed by the Treasury Solicitor) appeared
for the first respondent, the Secretary of State for the Environment; Nigel
Giffin (instructed by the solicitor to Newcastle City Council) appeared for the
second respondents, Newcastle City Council
Giving judgment, Simon Brown LJ said: 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.
*Editor’s note: Reported at [1996] 1 EGLR
147
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 s8, ‘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
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 the admirable judgment below. First and foremost among
these is the natural 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 and Aldous LJJ agreed and did not add anything.
Appeal dismissed with costs.
