Moore & Ors v Secretary of State for Communities and Local Government & Ors, Court of Appeal - Administrative Court, October 31, 2014, [2014] EWHC 3592 (Admin)

Resolution Date:October 31, 2014
Issuing Organization:Administrative Court
Actores:Moore & Ors v Secretary of State for Communities and Local Government & Ors
 
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Case No: CO/1173/2014

Neutral Citation Number: [2014] EWHC 3592 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 31/10/2014

Before :

MR JUSTICE OUSELEY

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Between :

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Jason Coppel QC and Hannah Slarks (instructed by Deighton Pierce Glynn) for the Claimant

Zoe Leventhal (instructed by The Treasury Solicitor) for the Defendant

Robin Green (instructed by Watford Borough Council) for the Interested Party

Hearing dates: 25th July 2014

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Judgment

MR JUSTICE OUSELEY

  1. The Claimants are three allotment holders at the Farm Terrace allotments owned by Watford Borough Council, situated immediately south of the Watford Football Club ground, and close to Watford General Hospital. 60 of the 128 plots on the 2.63 hectare site are currently cultivated by 48 allotment holders, who are supportive of the Claimants. A year ago, there had been 77 allotments in use by 60 allotment holders, but the events leading to this litigation, and the closure of the list to new allotment holders on this site, have reduced their numbers.

  2. On 3 December 2012, the Council resolved to appropriate these allotments to use as part of a regeneration project known as the Watford Health Campus project, covering some 27 hectares. Appropriation would take place pursuant to the powers in ss122 and 123 of the Local Government Act 1972. After appropriation, the Council intends to transfer the allotments into the Watford Health Campus, a Local Asset Backed Vehicle, LABV, established as an LLP between the Council and Kier Project Investment Ltd, to bring this project to fruition.

  3. The project itself does not, as a matter of its definition in various documents, mean only a project which includes the allotment site. A version of the Watford Health Campus project which received outline planning permission in 2010 did not include the allotment site. The inclusion of the allotments in the project came later, in 2012, as the project evolved.

  4. Section 8(1) of the Allotments Act 1925 requires the consent of the Defendant, the Secretary of State for Communities and Local Government, to the appropriation of allotments. His consent was sought in an application made on 2 September 2013, supported by 32 appendices and including the Council's Cabinet Report of 3 December 2012. The Claimants and other objectors also made representations, although neither side saw the other's submissions. Consent was granted unconditionally in a decision dated 18 December 2013. It is that decision which the Claimants primarily challenge in this action.

  5. This was the Council's second application for s8 consent. The Secretary of State had made an earlier decision consenting to the appropriation in May 2013, but the decision was quashed by consent on 28 August 2013, because the Secretary of State had failed to give adequate reasons for departing from his policy criteria for the grant of consent under s8 of the 1925 Act.

  6. The major challenge to the December 2013 decision alleges that the Secretary of State was not informed, or was inaccurately and inadequately informed, about matters which were material, indeed central, to a fair and rational decision to make an exception to his policy in granting consent under s8 of the 1925 Act. Alternatively he, or the officials briefing him, misunderstood those factors as a result of misleading and incomplete information supplied by the Council. This also led to a breach of the Claimants' legitimate expectations as to how the policy would be applied; there was no proportionate public interest justification for overriding the Claimants' legitimate expectations that the Secretary of State's policy would protect their allotment tenancies.

  7. The matter to which these contentions relate is first and foremost the viability and prospects of the Watford Health Campus Project coming to fruition. There are four aspects to this. (1) Would the project, albeit obviously in a different form, still be brought to fruition without the inclusion of the allotment site, and with what drawbacks and uncertainties? (2) What was the intended significance of the viability arguments and figures provided by the Council, notably showing a risk adjusted negative rate of return, in the absence of the allotment site, and how was that understood? (3) Was the Watford Hospital Health Trust (WHHT) committed to any particular form of scheme, and did the Council overstate or the Secretary of State misunderstand the firmness of its position? (4) What is the significance of changes to the project contemplated but not resolved upon at the time of submission and decision, but which subsequently were adopted, and indeed two of which arose essentially wholly after the decision? These changes relate to the up to date position of the WHHT, an increase in the number of homes envisaged without the allotment site, the working out of a solution to building houses rather than flats alone on the flood plain, the abandonment of a costly multi-storey car park, and the use of part of the allotment site for Watford Football Club car parking. There had been no updated viability analysis to take account of those changes.

  8. The December 2013 decision was also challenged on the secondary ground that, as a tenancy of an allotment was agreed in principle to be capable of being a ``possession'' for the purposes of Article 1 of Protocol No.1 to the ECHR, the s8 consent was an interference with rights of property which was neither in accordance with the law, nor one justified by the material before the Secretary of State or later presented to the Court. There was an Article 8 claim which adds nothing.

  9. The Claimants also sought permission in their skeleton argument to amend their claim so as to challenge a further decision of the Secretary of State on 10 July 2014, whereby he refused to reconsider his December 2013 decision. On 3 July 2014, the Claimants had asked him to reconsider it in the light of the disclosures made by the Council on 27 June 2014 pursuant to an Order by Collins J. The Claimants said that the changes which had been made to the scheme and the Council's public statements about it, before his December 2013 decision, showed the fundamental flaws behind his consideration of the s8 consent application. But he had refused to reconsider it because he denied those flaws and said he was functus officio anyway. This challenge proceeded essentially on the same basis as that to the December 2013 decision itself.

    The statutory and policy provisions

  10. Section 8 of the 1925 Act provides:

    ``Where a local authority has purchased or appropriated land for use as allotments the local authority shall not sell, appropriate, use, or dispose of the land for any purpose other than use for allotments without the consent of the Minister of Agriculture and Fisheries ... and such consent may be given unconditionally or subject to such conditions as the Minister thinks fit, but shall not be given unless the Minister is satisfied that adequate provision will be made for allotment holders displaced by the action of the local authority or that such provision is unnecessary or not reasonably practicable, ...''

  11. It was accepted in the Council's application that provision for the allotment holders was necessary and that new provision was reasonably practicable. It was contended that adequate provision for those displaced would be made. Although the allotment holders disputed the adequacy of the Council's intended alternative provision, and repeated their discontent in witness statements before me, Mr Coppel QC on their behalf accepted that the Secretary of State's decision could not be challenged as unlawful on that ground.

  12. The challenge relates to the way the Secretary of State applied his published policy on the granting of consent under s8, and not to the satisfaction of any statutory pre-condition to its grant. The policy consists of criteria contained in a letter to local authorities dated 27 February 2002. The criteria are that:

    ``the allotment in question is not necessary and is surplus to requirement;

    adequate provision will be made for displaced plot holders, or that such provision is not necessary or is impracticable;

    the number of people on the waiting list has been effectively taken into account;

    the authority has actively promoted and publicised the availability of allotment sites and has consulted the National Society of Allotment and Leisure Gardeners; and

    the implications of disposal for other relevant policies, in particular development plan policies, have been taken into account.''

  13. The Secretary of State treats these requirements as cumulative. There is a new policy as from January 2014, which takes the same approach.

  14. Ms Leventhal for the Secretary of State submitted that the Act gave a discretionary power to refuse consent to the appropriation of allotments which were in active use, even though they were adequately to be replaced, thus meeting one of the two alternative pre-conditions to the grant of consent. This was not at issue between the parties, and I express no conclusion about it. But I would not wish in this judgment to be thought to be agreeing that the proper construction of the Act permits criteria which Parliament has expressed as alternatives to be treated as cumulative; the scope of the discretion may not permit the Act to be interpreted in that way.

    The decision letter

  15. The policy criteria are referred to in the decision letter as criteria (a) to (e). The relevant parts of the decision letter read:

    ``18. On criterion (e), the Secretary of State notes that the Council has had regard to the implications of disposal in other relevant policies, specifically the Council's Core Strategy (adopted January 2013) which...

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