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Allotment status clarified

The High Court (Chancery Division) has given judgment in a case brought by two allotment holders in which the Court was asked to determine which of two inconsistent powers of sale applied to the allotments in Burstow.The allotments were originally made over to the churchwardens and overseers of the poor of the parish, to be held on trust for the labouring poor, under the terms of an Inclosure Award dated 1855. The legal title to the allotments later transferred to Burstow Parish Council when it came into existence in 1894. The rival powers of sale were:

– s.27 Commons Act 1876

– s.32 Smallholdings and Allotments Act 1908

Both remained force and, on the face of it, applied to the Burstow allotments. The defendant parish council wished to sell part of the land for housing, and took the view that the relevant power of sale was that contained in the 1908 Act. The claimants considered that the power of sale was to be found in the 1876 Act, which contained more onerous requirements.

The claimants, represented by Emma Dring of Cornerstone Barristers, argued that the doctrine of implied repeal (whereby a later statute by implication repeals an earlier statute where the provisions of the two are wholly inconsistent) did not apply, instead the two rival powers of sale were both capable of being given effect by application of the principle that a general provision does not derogate from a special one. The power in the 1876 Act applied only to allotments created for the labouring poor, whereas the power in the 1908 Act applied to all other types of allotment.

The defendant parish council, represent by Estelle Dehon (also of Cornerstone Barristers) argued that the 1908 Act had consolidated the previous legislation applying to allotments. Parliament had intended that all allotments held by parish councils would thereafter be dealt with in accordance with the statutory scheme of the 1908 Act. The principle that a general power does not derogate from a special one did not apply.

The High Court found in favour of the defendant parish council, holding that Parliament had intended that all allotments would be dealt with under the 1908 Act and that, to that extent, the power of sale in s.32 had impliedly repealed s.27 of the 1876 Act.

The judgment is available here.