The Court of Appeal has overturned a High Court ruling that Kirklees Metropolitan Borough Council must keep an allotment site in use, in a ruling that Lord Justice Lewison called “very strange”.
Kirklees wanted to change the site’s use to a playing field and car park for a primary school but an allotment user, a Mr Adamson, objected that the land had been allocated as allotments in 1935.
Council papers dating back some 85 years had to be found and interpreted in the course of the case and some were found to be missing.
The National Allotment Society was an intervener in the case and the Secretary of State for Housing, Communities and Local Government an interested party
Lewison LJ said the issue at appeal was whether Kirklees was obliged to obtain the consent of the secretary of state before deciding to dispose of the land, and that this depended on whether the council had ‘appropriated’ it as allotments within section 8 of the Allotments Act 1925, as amended. If it had, ministerial consent would be needed to dispose of it.
The High Court decided the land had been appropriated as allotments in 1935 when, as part of a town planning scheme, a predecessor council zoned the land at Cemetery Road, Birkby as allotments.
Kirklees could have used section 122 (1) of the Local Government Act 1972 if the land was “no longer required for the purpose for which it is held immediately before the appropriation”, but if it had “purchased or appropriated for use as allotments” it would need consent from the secretary of state under the Allotments Act 1925 s8.
Lewison LJ said the council in 1958 agreed to the appropriation of some sites for allotments but in relation to Cemetery Road resolved “no action be taken at the present time”.
Kirklees argued ‘appropriation’ was a specific formal process and the fact that the land had been used as allotments for more than 80 years was not enough to require ministerial consent for change of use.
Giving his ruling Lewison LJ said: “When all the various points are taken together, particularly the contrast between what happened in the 1930s and what happened in the 1950s, I come to the reluctant conclusion that the judge's decision cannot stand.”
He said the council had not delegated powers of appropriation its agricultural committee and so its decision on zoning could not amount to appropriation.
Lewison LJ said: “It may seem very strange to a member of the public (or even, I may say, to a judge) that a use that has gone on for over 80 years has never been the subject of an appropriation to that use.
“But I am reluctantly driven to the conclusion that the minute of 9 December 1935 was not an appropriation in the sense in which that expression is used in local government law (and in particular in section 8 of the Allotments Act 1925).”
From that it followed that the consent of the secretary of state was not needed to change the land’s use to educational purposes.