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Supreme Court rejects application for permission to appeal ruling on allotments appropriation and ministerial consent

The Supreme Court has refused permission to appeal a Court of Appeal ruling that land used for allotments for more than 80 years had not been subject of an appropriation for that use and so a council could dispose of the land without the consent of the Secretary of State, it has emerged.

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

In Adamson, R (On the Application Of) v Kirklees Metropolitan Borough Council [2019] EWHC 1129 (Admin) Mr Justice Kerr in the High Court decided that the land had been appropriated for that purpose in 1935 when, as part of a town planning scheme, the council decided to zone the land for allotments.

This meant Kirklees should have obtained the consent of the Secretary of State before disposing of the property or appropriating it to a different use.

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The council, which plans to use the land for sports pitches for a new primary school that is to be built on a neighbouring site, appealed.

In Adamson, R. (On the Application Of) v Kirklees Metropolitan Borough Council [2020] EWCA Civ 154 the Court of Appeal in February this year overturned the High Court’s ruling.

Lord Justice Lewison 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). It follows that the consent of the Secretary of State was not needed before the council took its decision to appropriate the land for educational purposes.”

Immediately following the Court of Appeal ruling, barristers chambers 11KBW, whose Christopher Knight appeared for the council, said: “Lewison LJ’s judgment addresses relevant powers of appropriation in the allotment context, and the case law which discusses what is required to be shown for an appropriation.

“Approval is given to the analysis of Dove J in R (Goodman) v Secretary of State for Environment, Food and Rural Affairs [2015] EWHC 2576 (Admin) that a ‘conscious deliberative process’ is required, particularly where the general power of appropriation (now in section 122 of the Local Government Act 1972) which requires the authority to have concluded that there is no longer a requirement that the land be used for its existing purpose is being used.”

It added: “Reviewing the evidence, the Court of Appeal unanimously overturned the High Court’s ruling that there had been an appropriation in 1935 by reference to consideration of a town planning scheme, and held that there was not a sufficient evidential basis to establish or infer an appropriation. Consent of the Secretary of State was accordingly not required.”

The appellant subsequently sought permission to appeal but the latest summary of permission decisions (issued this month) by the Supreme Court revealed that this was rejected by a panel comprising Lord Kerr, Lord Sales and Lord Leggatt.

The judges concluded that permission should be refused because the application did “not raise an arguable point of law of general public importance which ought to be considered at this time”.

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