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Four-year battle over allotments ends after judge rejects challenge to appropriation

A four-year battle over the fate of allotments in Watford looks to have come to an end, after a judge rejected a legal challenge to the Communities Secretary’s grant of consent for appropriation of the land.

Watford Borough Council has been seeking to appropriate the allotment land at Farm Terrace for use as part of the Watford Health Campus Scheme redevelopment.

In August 2013 the then Communities Secretary Eric Pickles agreed that his original decision to grant consent for appropriation under s. 8 of the Allotments Act should be quashed.

When the minister took a fresh decision in favour of consent, allotment holders brought a second challenge. This was upheld by Mr Justice Ouseley in October, who concluded that the local authority had failed to inform the Communities Secretary of a major change to the plans for the development that had been agreed before he took his decision.

A third judicial review challenge was launched after Pickles’ successor, Greg Clark (now Business Secretary), in May this year also decided to grant consent to the council.

In July the council decided to appropriate the allotments and terminate the remaining 24 tenancies on three months’ notice. It planned to offer 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, an allotment holder at Farm Terrace, argued in the High Court last month that the Secretary of State had erred in law in concluding in his decision that there were exceptional circumstances which justified the grant of consent to the appropriation of the allotments. It was claimed that:

  1. The Secretary of State misunderstood his guidance when applying an insufficiently high threshold to the circumstances required to qualify as "exceptional"; and/or
  2. He failed to apply that high threshold such that the decision was disproportionate and/or irrational at common law; and/or
  3. The decision constituted an unjustifiable breach of the claimant's legitimate expectation that only truly exceptional circumstances would be used to grant consent; and/or
  4. The decision failed to achieve a fair balance between the A1P1 rights of the claimant and the desire of the council to pursue the Project.

In Moore, R (on the application of) v Watford Borough Council & Anor [2016] EWHC 2736 (Admin) Mrs Justice Lang granted the claimant permission to apply for judicial review.

However, the judge dismissed the allotment holder’s substantive claim, concluding that the Communities Secretary’s decision to grant consent to Watford Council to appropriate the allotment land for redevelopment was lawful.

Mrs Justice Lang concluded that the claimant had embarked upon a merits challenge to the Secretary of State's decision, “repeatedly substituting [their] assessment of ‘exceptional circumstances’ for that of the Secretary of State”.

The judge considered that “the Secretary of State 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.

Mrs Justice Lang went on to say that the Secretary of State 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, I consider that a fair balance has been struck,” she said.

Responding to the ruling, Cllr Dorothy Thornhill, Watford’s elected mayor, tweeted: “High Court give go-ahead for Farm Terrace to be used for WGH expansion & Health Campus. Great news for our hospital & our town!

“I have always believed #Watford & SW Herts deserve a 1st class hospital. Health Campus scheme provides land & access to make it possible.”

A spokeswoman for the Save Farm Terrace group said it had decided not to pursue an appeal.

The allotment holders’ lawyers, Deighton Pierce Glynn, said: “For the third time, the Secretary of State for Communities and Local Government has agreed that Watford Council can appropriate the Farm Terrace Allotment site for a development, despite two previous decisions having been quashed by the High Court after the plot-holders challenged them.

“The Secretary of State’s policy – which is designed to protect allotments from development – says that consent for appropriation should not be granted if the allotments are not surplus to requirements. The council admits that the allotments are not surplus to requirements, but maintains (and the Secretary of State agrees) that the need to build on the allotment land constitutes ‘exceptional circumstances’ which justify building on it anyway, despite the fact that the development will go ahead without the allotments anyway.

“The allotment holders believe that if ‘exceptional circumstances’ are interpreted in this way, then no allotment in England is safe, because it would be so easy for developers to assert that their application is exceptional. The case will therefore be about far more than Farm Terrace, as it will affect every local authority-owned allotment site in the country.”

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