Court Of Appeal Clarifies Powers Of Sale Of Allotments
The Court of Appeal has clarified the powers available to local authorities to sell “field garden” allotments (allotments inclosed under the Inclosure Act 1845, which are required to be held on trust for “the labouring poor”).
In Snelling and Merison v Burstow Parish Council  EWCA Civ 1411, the defendant Parish Council wished to sell part of an allotment site in order to enable development of affordable housing. The land was comprised of “field gardens” which had been inclosed in 1855. The appellant allotment holders alleged that the correct power of sale was section 27 of the Commons Act 1876 (which limits the circumstances in which such land can be sold and requires the proceeds of sale to be held on trust for allotment purposes); the Parish Council contended that the correct power of sale was section 32 of the Small Holdings and Allotments Act 1908 (which is less restrictive).
The High Court had found in favour of the Parish Council, holding that Parliament had intended that all allotments would be dealt with under the 1908 Act and so, to that extent, the power of sale in section 32 had impliedly repealed section 27 of the 1876 Act (click here to see previous news item). The Court of Appeal took a different view. Lord Justice Patten (with whom Lord Justices Christopher Clarke and Treacy agreed) concluded that the two powers of sale are different, although overlapping, provisions and that the Council could choose between them. It is therefore open to local authorities to choose the less restrictive provision, despite this reducing the level of protection afforded to field garden allotments.
The Court of Appeal also made two further important findings. First, it held that the proceeds of sale of field garden allotments sold under section 32 of the 1908 are free from any trust. Second, the Court clarified that field garden allotments fall outside the ambit of section 8 of the Allotments Act 1925, which requires the consent of the Secretary of State be obtained for the sale, appropriation, use or disposal of “land purchased or appropriated for use as allotments”. The Court held that the words of section 8 must be given their ordinary meaning, and so do not apply to older allotment land which passed to local authorities by operation of law under the Local Government Act 1894 or subsequent enactments. Both findings have significant implications for the way in which local authorities (usually parish councils) can dispose of field garden allotments.
The decision is also of wider interest for the way in which it approached two methods of statutory interpretation – implied repeal and the principle that general rules do not derogate from particular or special enactments (expressed in the maxim generalia specialibus non derogant). The Court of Appeal reiterated that implied repeal will not lightly be inferred, and that anomaly or even redundancy is not sufficient to give rise to implied repeal. The Court was also unenthusiastic about applying the generalia maxim to interpretation of provisions in different statutes which are consecutive in time, suggesting that it is more suited to interpretation of inconsistent provisions in the same statute.
The Appellants were represented by Emma Dring and the Respondent by Estelle Dehon.
The judgment is available here: http://www.bailii.org/ew/cases/EWCA/Civ/2013/1411.html