Allotments – Statutory power of sale – Appellants disputing power of respondent parish council to sell off allotment land for housing development – Whether power of sale confined to sale for purpose of applying proceeds to purchase of other allotment land – Whether relevant power arising under section 27 of Commons Act 1876 or section 32 of Small Holdings and Allotments Act 1908 – Appeal dismissed
The appellants held allotments on a site of which the respondent parish council were the freehold owners. The site had originally been appropriated for allotments in 1855 pursuant to the Inclosure Act 1845, to be held on trust as an allotment for the labouring poor of the parish, and had later come within the management of the parish council by virtue of section 6(4) of the Local Government Act 1894. The respondents proposed to sell off part of the site for a housing development. They obtained the consent of the secretary of state for communities and local government for that sale pursuant to section 8 of the Allotments Act 1925.
The appellants claimed that the respondents did not have the power to sell off the land for housing. The respondents contended that the relevant power arose under section 32(1) of the Small Holdings and Allotments Act 1908, which permitted a sale of allotment land by a parish council if the council were of the opinion that the land was not needed for the purpose of allotments; they submitted that the site had been brought within the powers of the 1908 Act by virtue of section 33(4) of that Act. The appellants contended that the matter was governed by section 27 of the Commons Act 1876, under which the power to sell off allotments appropriated under the 1845 Act was limited to sale for the purpose of applying the proceeds of sale to the purchase of other suitable allotment land in the same parish or neighbourhood, to be held on trust for the same purposes as those for which the sold land had been allotted. They submitted that the section 27 power continued to apply to allotments created under the 1845 Act, thereby retaining the special protection afforded to such allotments, while the general power of sale in section 32 of the 1908 Act applied to all other kinds of allotments.
In the court below, the deputy judge held that the power of sale in section 32 of the 1908 Act applied to all allotments acquired under that Act or treated as so acquired pursuant to section 33(4) and that it repealed the power in section 27 of the 1876 Act to that extent. She further held that section 8 of the 1925 Act also applied to such land so that the defendants had correctly sought the consent of the secretary of state to the sale. She concluded that the proposed sale was lawful: see [2013] EWHC 46 (Ch); [2013] PLSCS 25. The appellants appealed.
Held: The appeal was dismissed.
(1) The issues of statutory construction had to be resolved by examining the language and purpose of the relevant legislation. The 1908 Act was intended to be of general application, consolidating existing enactments relating to allotments and supplementing those provisions with the additional powers of purchase, management and sale. Section 32 empowered the council to dispose of superfluous or unsuitable land, which they could use either to purchase alternative allotments or to defray other expenses including the maintenance and improvement of existing allotments. The continuation of a charitable trust would be inconsistent with that statutory scheme.
Section 33(4) brought within the 1908 Act allotments transferred to parish councils under section 6(4) of the 1894 Act and conferred all relevant powers on the parish councils in which they were vested, including the power contained in section 32. Although the 1908 Act did not expressly repeal section 27 of the 1876 Act, there was nothing in the language of either section 32 or 33 to indicate that those provisions should have an application limited by the scope and effect of section 27. There was nothing to support the contention that section 27 of the 1876 Act was to continue as the only available power of sale in respect of section 6(4) allotments. Although there was a significant reduction in the level of protection for allotment holders between section 27 of the 1876 Act and section 32 of the 1908 Act, that change was explicable as part of the comprehensive overhaul of the statutory provisions governing allotments that the 1908 Act was intended to effect.
The courts would not lightly infer the implied repeal of an earlier statute and it was unnecessary to do so in respect of section 27 of the 1876 Act. Although it was difficult to see why the section 27 power had been preserved, it was possible to give effect to the new and much wider power contained in section 32 of the 1908 Act without the need to remove section 27 from the statute book. Redundancy was not enough for that purpose. There was nothing in section 27 that limited or otherwise impacted on the operation of section 32. They were simply different powers arising under different statutes. The better view was that they were different, although overlapping provisions, and the council could choose between them. Accordingly, the respondents were entitled to sell the land pursuant to the power under section 32 of the 1908 Act.
(2) It had been unnecessary for the respondents to obtain the consent of the secretary of state to their proposed sale. Section 32 of the 1908 Act had, until its amendment in the 1970s, originally required the consent of the county council to a sale. The 1925 Act had been passed to make further provision for the security of tenure of tenants of allotments. Section 8 required the minister to consent to a sale and to be satisfied either that adequate provision would be made for displaced allotment holders or that such provision was unnecessary. Had parliament intended that section 8 should operate in every case, then the provisions of section 32, as originally enacted, would have been redundant so far as they required consent by the county council. The provisions of section 8, obviating the need to obtain the consent of the county council where ministerial consent was obtained, made sense only if the latter was not a requirement in every case. It followed that there had to be a category of cases that fell within section 32 of the 1908 Act but where section 8 of the 1925 Act had no application. That category was identified by reference to the wording of section 8, which in terms applied only to land “purchased” by a local authority for use as allotments.
Giving the word “purchased” its ordinary meaning, rather than an extended meaning of “acquired”, it did not apply to allotments that had come into the control of the parish council by virtue of section 33(4) of the 1908 Act. It therefore had no application to the respondents’ sale.
Emma Dring (instructed by Edward Harris, of Swansea) appeared for the appellants; Estelle Dehon (instructed by Hedleys Solicitors, of Great Bookham) appeared for the respondents.
Sally Dobson, barrister
