Council defeated in High Court by allotment holders over school sports pitches plan

Allotment holders have won a High Court challenge over a council’s plans to use certain land for sports pitches for a new primary school that is to be built on a neighbouring site.

The main issue in Adamson, R (On the Application Of) v Kirklees Metropolitan Borough Council [2019] EWHC 1129 was whether the defendant local authority, Kirklees, was obliged to obtain the consent of the Secretary of State for Housing, Communities and Local Government before deciding to dispose of the land used as allotments by the claimant and others.

The judge hearing the case, Mr Justice Kerr, said that depended on whether the council had "appropriated" that land for use as allotments within section 8 of the Allotments Act 1925, as amended. If it had, it could not dispose of the land without the consent of the minister.

The claimant, Jonathan Adamson, told the court he was in favour of the new primary school but said it should not include the allotment land used by him and 13 others, unless the minister agreed to that.

Mr Adamson wishes to put the case to the minister that the primary school site should be differently arranged so as to spare the allotment land.

He and his fellow allotment holders were not satisfied with alternative allotment land offered to them by Kirklees.

The council denied that the land had been “appropriated” for use as allotments. It also argued that even if it had been, the court should refuse any remedy, for two reasons: first, that in view of the minister’s written policy, the Secretary of State would be highly likely to bestow his consent if the council were to ask him for it; and second, that the claimant had unduly delayed making his application and the granting of the relief sought would be detrimental to good administration and would cause substantial prejudice to the council and local people.

Mr Justice Kerr found for the claimant. He said that whether appropriation occurred here was as fact sensitive an evaluation as it was in previous cases considered by Dove J.

In 1920, the Huddersfield Corporation, Kirklees' predecessor, had negotiated the purchase of the Ramsden (Huddersfield) Estate - which included the land on which the allotments are situated - for £1.36m.

Mr Justice Kerr said: “If the corporation in the present case had merely started growing its own vegetables on the lands used as allotments, then I would have accepted that by doing so it no more appropriated the land for use as allotments than did the local authority in the Goodman case appropriate the land concerned for use as an open space by planting trees on it.

“But here, the corporation did not merely itself use the lands ‘zoned’ or ‘re-zoned’ as allotment land. It took a considered and conscious decision, recorded in committee minutes, in the performance of statutory functions: that specific land should be ‘zoned’ or ‘re-zoned’ for use as allotments by tenants. That ‘zoning’ exercise was begun by other parts of the corporation when they produced the maps in the evolution of the [Town Planning Scheme 1935].”

Mr Justice Kerr added: “The Agricultural Committee's contribution was to identify four additional sites appropriated for allotment use. I find this to be a very plain case of statutory appropriation of that land for use as allotments. I think the use of the verb ‘zone’ was its current use in town planning parlance: ‘[t]o divide (a city, land, etc.) into areas subject to particular planning restrictions; to designate (a specific area) for use or development in this manner’ (my italics).

“It is then not surprising to find evidence of subsequent continued use of that land, under tenancy agreements, as allotments, into the 1950s and 1960s. Requesting amendment of the maps to accord with the Agricultural Committee's decision was not a mere informal expression of a wish; it was a formal request to ensure that the 1935 Scheme properly reflected the Agricultural Committee's decision.”

Mr Justice Kerr said that was sufficient to dispose of the appropriation point that arose in the case. However, he added: “If it were necessary to add to the reasoning, I would also support the contention of Mr Adamson that statutory appropriation occurs where a local authority's allotments committee formally takes control of allotment land from the general estates land owned by the local authority.

“Depending on the facts, it is also possible in my judgment for statutory appropriation of land for use as allotments to occur by the entering into of a formal lease of allotment land for use as such.”

The High Court judge said there could be cases where the occupancy arrangement was too informal to constitute a statutory appropriation. “But where a lease of land specifically and formally confines the tenant's use of the land to use as an allotment – for example, with a covenant against non-allotment use - I do not see why that should not be evidence of a decision resulting from a conscious deliberative process of the type envisaged by Dove J in the Goodman case.”

Mr Justice Kerr added that the use of non-legal terminology such as describing ‘temporary’ or ‘permanent’ allotments might be a pointer to whether there was a statutory appropriation or not.

“References to ‘security of tenure’ are evidence pointing in the direction of statutory appropriation but are not conclusive. The description of certain allotments as ‘temporary’ when they have been used as such for many decades, may not accurately indicate whether there has been a statutory appropriation or not.”

The judge added that minutes and discussion documents dating from the 1950s and later, were not in point. “They overlook the earlier statutory appropriations of allotment land that occurred in the 1930s.”

Mr Justice Kerr also found for Mr Adamson in relation to: the likelihood of the Secretary of State bestowing his consent; delay in the claimant making his application; the detriment to good administration; and the question of substantial prejudice to the council and local people.

Responding to the ruling, a Kirklees Council spokesperson said: “We’re disappointed with the decision. A new primary school is needed in this area to meet the demands for places. As a council we’re committed to ensuring all children in Kirklees have access to the same high standard of education. This school is an important part of this.

“This decision will delay us in providing the new school local children deserve. We will be presenting additional information to the judge and hope this decision will be reviewed. We will also be seeking permission from the Secretary of State to proceed with the development following this decision.”

The spokesperson added: “Allotments are part of our local communities and it’s important that we have enough spaces for those that want them. The amount of unused space on this site means that it is possible to have both a fantastic new school and a vibrant allotment site. Affected allotment plot holders were offered new plots in the same allotment where work has been done to bring them up to a very high standard with new paths, edging, and access to water, so tenants can get straight into the art of growing.”

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