Allotments — Allotments Act 1925, section 8 — Whether ‘adequate provision’ for allotment holders on disposal of land means that allotment gardening can reasonably be undertaken on alternative site — Whether Secretary of State entitled to grant consent to disposal
On November 11
1993 the Secretary of State for the Environment gave consent under section 8 of
the Allotments Act 1925 for the disposal by Newcastle upon Tyne City Council of
7,750m2 of allotment gardens. In reaching his decision, and in disagreeing with
the recommendation of his inspector that consent should not be given for the
disposal because the proposed allotments were considerably less beneficial, the
Secretary of State considered the requirement under section 8 that his consent
should not be given unless he was satisfied that ‘adequate provision’ will be
made for the allotment holders. He concluded that ‘adequate provision’ means a
site on which allotment gardening can reasonably be undertaken by the persons
who were displaced. The allotment holders applied by way of judicial review to
challenge that decision contending that the Secretary of State’s interpretation
of section 8 was wrong.
interpretation of section 8 of the Allotments Act 1925 was correct.
No cases are
referred to in this report.
This was an
application, by Gosforth Allotments & Gardens Association Ltd, by way of
judicial review of a decision of the first respondent, the Secretary of State
for the Environment, granting consent to the second respondents, Newcastle upon
Tyne City Council, under section 8 of the Allotments Act 1925 to the disposal
of allotment gardens.
John Hobson
(instructed by Leigh Day & Co) appeared for the applicants; Richard Drabble
(instructed by the Treasury Solicitor) represented the Secretary of State for
the Environment; Paul Stinchcombe (instructed by the solicitor to Newcastle
upon Tyne City Council) represented the city council.
Giving
judgment, Laws J said: In
these proceedings for judicial review the applicants challenge a decision of
the Secretary of State, made on November 11 1993, that he was minded to give
his consent for the disposal by Newcastle upon Tyne City Council of
approximately 7,750m of land known as Rectory Road Allotment Gardens. The
applicants are lessees of the site and license individual plots within it to
allotment holders. Allotments have been tended on the site since before the
second world war. The history of the site is such as to engage the application
of section 32(1) of the Small Holdings and Allotments Act 1908, which provides:
Where the
council of any borough, urban district, or parish are of 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
with the sanction of the city council 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.
If such a sale
or exchange is contemplated, section 8 of the Allotments Act 1925 applies. That
provides:
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 use 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
Small Holdings and Allotments Act 1908 shall not be required.
In light of
the argument to which I must come in due course I should also cite section
23(1) of the 1908 Act:
If the
council of any borough, urban district, or parish are of 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.
The council
seem first to have proposed to sell the land in 1988 and applied for the
Secretary of State’s consent under section 8 in July 1990. It was proposed that
the allotment holders who would be displaced would be relocated on existing
allotment sites at Little Moor and Highbury (south), with an extension of the
latter site to create 20 additional plots. These two sites are both situated on
the Town Moor. However, on October 12 1990 the Secretary of State refused his
consent, taking the view that the plot holders’ security of tenure would be
less advantageous at the replacement sites than at Rectory Road. The council
issued judicial review proceedings, but they were withdrawn or compromised and
the council made a fresh application for consent to the Secretary of State who
considered it accordingly and appointed an inspector to hold a non-statutory
inquiry and make recommendations to him.
In his report
dated October 9 1992 the inspector recommended that the application for consent
be dismissed; but in his decision letter of November 11 1993, now under
challenge, the Secretary of State disagreed with his inspector and gave
consent. Although the outcome of this judicial review turns upon the correct
interpretation of section 8 of the 1925 Act, I must describe certain features
of the inspector’s
point at issue arises.
The inspector
gives descriptions of the Rectory Road site and the alternative sites and then
proceeds to set out with a good deal of detail first the council’s case (paras
12–53) and then the case for the allotment holders (paras 54–86). I need not, I
think, travel through these sections of the report, but can go straight to the
inspector’s conclusions which are to be found at paras 95–126. They may be
summarised as follows:
(1) The
inspector rejects the council’s case that there was over-provision of allotments
in the south Gosforth/Jesmond area: paras 98–104.
(2) With
drainage of a wet area on the Little Moor site and removal of part or all of an
old air raid shelter on the Highbury (south) site, and given the possibility of
extensions to either or both of the alternative sites, there would be
sufficient space to accommodate all the current plot holders from Rectory Road:
para 105.
(3) Given the
scheme for drainage of the wet area, removal of the air raid shelter,
rotovation and the addition of fertilizer, there should be ‘very little
difference in the quality of the soil between the Rectory Road site and the
alternative sites’: paras 104–108.
(4) The
presence of what is called mare’s tail weed on the Little Moor site (including
the wet area), which the inspector considered very difficult to eradicate
without the use of chemicals not available to the public, amounted in the
inspector’s view to ‘a significant disbenefit’: para 109.
(5) The
alternative sites were inferior to Rectory Road from the point of view of
shelter: para 110.
(6) They were
also inferior to Rectory Road as regards the availability of water supply: para
111.
(7) The
alternative sites would not offer the same degree of security of tenure.
Essentially the inspector’s reason for this finding was that allotment holders
at the alternative sites would not enjoy there the protection of section 8 of
the 1925 Act, in contrast to the position at Rectory Road.
(8) All or
very nearly all the present Rectory Road allotment holders would have to travel
greater distances from their homes to the new sites. The inspector gives
details and concludes that ‘this additional distance would be a significant
reduction in the conditions presently enjoyed by the Rectory Road plot
holders’. Nor did the inspector consider that such compensation as would be
paid by the council ‘would fully recompense the plot holders for the general
disturbance involved in the move’: paras 117–119.
(9) The
inspector entertained considerable doubt whether the Rectory Road site would
sell at a residential land value given the applicable planning policies; and
without a sale at such value there might be a question whether the funds
generated would cover the improvements and extension envisaged to the other
sites. He made it clear, however, that ‘regardless of the matter of planning
policy, I consider that the proposed allotments would be considerably less
beneficial than those on the Rectory Road site’: paras 120–122.
(10) I should
read para 123 of the report:
In summary
therefore, 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. While 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.
Para 124
summarises his conclusions:
I have
reached the conclusion that there is sufficient land which could be made
available to replace that at Rectory Road, and that with sufficient work, the
ground could probably be brought to a condition similar to that at Rectory
Road. The mare’s tail weed is however a drawback on the Little Moor site, and
both sites are less sheltered. There would also be less security of tenure and,
although within the 1.2 km radius quoted by the Regional Office, the allotment
holders would still have to travel significantly further to their plots. In
general, I find the alternative sites to be considerable less attractive than
the proposed disposal site, which is highly prized by its allotment holders.
Thus the
inspector (para 126) did not consider ‘that the council’s proposals would, in
the terms of section 8 of the 1925 Act, make adequate provision for the Rectory
Road holders’, and he recommended that the application be dismissed.
I turn to the
Secretary of State’s decision letter, para 3:
The
inspector’s report and recommendations have been carefully considered. The
Secretary of State takes the view that the main issue in this case is whether
or not adequate provision will be made for allotment holders who would be
displaced if consent were granted. This is the test which must be satisfied
under section 8 of the Allotments Act 1925. The inspector considered that
whilst the alternative provision need not be any better, it should not be
significantly worse. The Secretary of State is unable to agree with that view.
He considers that in the context of section 8, ‘adequate provision’ means a
site on which allotment gardening can reasonably be undertaken by the persons
who are displaced. Among 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 the
paragraphs that follow the Secretary of State qualifies some of the inspector’s
conclusions. He considered that the mare’s tail weed could be eradicated before
cultivation commenced. He thought that the poorer shelter at the alternative
sites did not prevent allotment gardening being reasonably undertaken and was
satisfied that the ‘clearly inferior’ water supply could be made adequate. He
did not consider that the development plan policies were of great weight. In
paras 7–10 he addresses the issue of security of tenure. I need not, I think,
set out the details of his reasoning. In para 10 he concludes that ‘for all
practical purposes their security of tenure would be no different to that which
they presently enjoy’. As regards distance between the alternative sites and
the plot holders’ homes, he said (para 12):
while he
agrees that the additional travelling would be a reduction in the conditions
presently enjoyed by the Rectory Road plot holders, he does not consider that
this consideration is sufficient, either on its own or in conjunction with the
other disadvantages identified, to make the replacement site inadequate in
terms of section 8 of the 1925 Act.
Accordingly,
he declined to accept the inspector’s recommendation and was minded to grant
consent. Before granting it, however, he required the city council to carry out
various works including improvements to the drainage and eradication of mare’s
tail weed from the Little Moor site.
It will be
apparent that although the Secretary of State qualifies the inspector’s
conclusions in a number of respects, he did not hold that overall the alternative
sites would offer benefits to the allotment holders as great as they enjoyed at
Rectory Road. Indeed Mr John Hobson, for the applicants, is entitled to submit
that on a fair reading of the decision letter the Secretary of State accepted
that there would be disadvantages.
These are all
the facts I need set out for the purpose of determining this application. The
issue may be stated very shortly. Is the correct construction of section 8 of
the 1925 Act that put forward by the Secretary of State in para 3 of the
decision letter, or is Mr Hobson correct in submitting that ‘adequate
provision’ means provision which is, as he put it, ‘at least equal or
commensurate in fitness to the allotments from which the plot holders are to be
displaced’?
Mr Hobson
first submitted that the ordinary meaning of ‘adequate’ is ‘equal’ or
‘commensurate’. He referred to the Oxford English Dictionary where,
certainly, such meanings are given. But so are others. As with any statutory
expression, the words ‘adequate provision’ must be construed in their context.
Had Parliament intended the Secretary of State to consider whether provision of
a replacement site or sites at least as advantageous to the plot holders as
that which they were required to leave would be made, it could and, in my
judgment, would have said so in clear terms. In my judgment, the natural
meanings of the words in the section point much more readily to the Secretary
of State’s construction, namely that ‘adequate provision means a site on
which allotment gardening can reasonably undertaken by the persons who are
displaced’.
There are
other pointers in the same direction. If Mr Hobson is right, it would appear
that 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.
Moreover, a
comparison between section 8 and section 32 of the 1908 Act, far from assisting
Mr Hobson (as he submitted), in my judgment, assists the Secretary of State. I
accept Mr Richard Drabble’s argument that section 32 is to be read against the
background of section 23. In contrast to section 8, section 32 is not directed
at the interests of specific allotment holders in a particular place, but
rather is intended to permit the council to make what may be called strategic
decisions as to the sensible fulfilment of their duty under section 23. It
allows them, by sale or exchange, to adjust the extent and location of their
holdings of land for allotment purposes as changing needs and opportunities
dictate. Section 8, on the other hand, obliges the Secretary of State in effect
to look at the specific interests of particular allotment holders in deciding
whether to allow a sale of allotment land by the council to go forward. It is
therefore unsurprising that sections 32 and 8 use different language; and Mr
Hobson cannot, as he valiantly sought to do, approximate the meaning of the
expression ‘adequate provision’ in the latter to the meaning of ‘some more
suitable land is available’ in the former.
In addition, I
consider that if Mr Hobson’s proposed construction of section 8 were right, in
the nature of things ‘adequate provision’ on an alternative site would not very
often be found. Sections 32 and 8 in the respective statutes only apply to land
which a council has acquired for allotments. They do not apply to any land by
reason only of the fact that it happens to be used for the purpose of allotment
gardening. Accordingly, the likelihood is that land which a council proposes to
sell subject to sections 32 and 8 will at least historically have been thought
particularly suitable for allotment gardening and it may well be that
individual plot holders will have been using the site for many years. In the
present case, as I have said, the Rectory Road gardens have been used as
allotments since before the second world war; and I see from the inspector’s
report that a good number of the plot holders are getting on in years. In such
a case, the chances of Mr Hobson’s test for ‘adequate provision’ being
fulfilled will be relatively modest. In short, his approach would distort the
sensible operation of section 8.
For these
reasons I would uphold the Secretary of State’s construction of section 8 as
articulated in para 3 of his decision letter.
Mr Hobson
maintained another argument appearing in his grounds, though he did not develop
it. That was that even if the Secretary of State’s construction of the section
is right, he acted perversely on the facts in holding that the alternative
sites on offer constituted adequate provision. I will not recite any of the
detailed facts again. It seems to me, plain beyond argument that this point is
no more than a complaint as to the merits of the Secretary of State’s decision.
There is no material in this case upon which to condemn the Secretary of State
for Wednesbury unreasonableness.
In these
circumstances, the application must be dismissed.
