“whether the … council was obliged to obtain the consent of the minister before deciding to dispose of certain land in its area currently in use as allotments by the claimant, Mr Adamson, and others. That depends on whether the council has "appropriated" that land for use as allotments withinsection 8 of the Allotments Act 1925 , as amended. If it has, it may not dispose of the land without the consent of the minister.”
“The Council of a borough, urban district, or parish may, for the purpose of providing allotments, by agreement purchase or take on lease land, whether situate within or without their borough, district, or parish..”
“(1) A council of a borough, urban district, or parish may, in a case where no power of appropriation is otherwise provided, with the consent of the Board of Agriculture and Fisheries and the Local Government Board, and subject to such conditions as to the repayment of any loan obtained for the purpose of the acquisition of land or otherwise as the last-mentioned Board may impose,— (a) appropriate for the purpose of allotments any land held by the council for other purposes of the council; or (b) appropriate for other purposes of the council land acquired by the council for allotments”
“the same or any part or parts thereof may be appropriated to any undertaking or to any of their powers or duties and when so appropriated a transfer of the outstanding loan in respect thereof shall be effected to the proper account in the books of the Corporation”
“…that nothing in this sub-section shall authorise the Corporation- … (b) To appropriate such lands to any purposes other than purposes for which and subject to the conditions under which they are for the time being authorised to acquire and use lands”
“(1) Any land belonging to a local authority and not required for the purposes for which it was acquired or has since been appropriated may be appropriated for any other purpose approved by the Minister for which the local authority are authorised to acquire land.”
“(1) Every local authority or joint committee of local authorities preparing a town-planning scheme in pursuance of the Town Planning Act, 1925, shall, in preparing such scheme, consider what provision ought to be included therein for the reservation of land for allotments. ….. (3) The council of every borough or urban district, any part of whose district is within the area of a town-planning scheme, shall take into consideration from time to time, but at least once in every year, the question whether any and, if so, what lands within the area of the scheme are needed for allotments, whether reserved for the purpose or not, and ought to be acquired under and in accordance with the provisions of the Allotments Acts, 1908 to 1922, as amended by this Act”
“A scheme may be made under this Act with respect to any land, whether there are or are not buildings thereon, with the general object of controlling the development of the land comprised in the area to which the scheme applies…”
“marked out certain lands for submission to the Highways Committee as permanent allotments”
“RESOLVED:- That the land zoned on the maps for use as allotments be approved, subject to the undermentioned additions viz:- … (2) That the land comprising about 8 acres sloping down from Highfields to St John’s Church be zoned for allotments. … and that this Committee respectfully request the Highways Committee to amend the maps accordingly.” and that this Committee respectfully request the Highways Committee to amend the maps accordingly.”
“[110] And when, on9 December 1935 , the Agricultural Committee considered "land for allotments" in the context of the 1935 Scheme, the committee having inspected the maps and found that three parcels of allotment land under the committee's control were, in its opinion, wrongly "zoned" for other uses as housing or building land, the committee resolved that those lands on the maps be "re-zoned for allotments". In the case of what is now the Cemetery Road site, the committee found no fault with the map but simply resolved that it be "zoned for allotments". [111] That seems to me a very plain case of a local authority undertaking what Dove J many years later called a "conscious deliberative process". I reject Mr Knight's suggestion that the committee was merely indicating informal use of the land as allotments and merely requesting the map makers to indicate on the maps where land was that happened to be in use, informally, as allotment land. That suggestion is consistent neither with the statutory context, nor with the purpose of the 1935 Scheme, nor with the use of the verb "zone".”
“[115] But here, the corporation did not merely itself use the lands "zoned" or "re-zoned" as allotment land. It took a considered and conscious decision, recorded in committee minutes, in the performance of statutory functions: that specific land should be "zoned" or "re-zoned" for use as allotments by tenants. That "zoning" exercise was begun by other parts of the corporation when they produced the maps in the evolution of the 1935 Scheme. [116] The Agricultural Committee's contribution was to identify four additional sites appropriated for allotment use. I find this to be a very plain case of statutory appropriation of that land for use as allotments. I think the use of the verb "zone" was its current use in town planning parlance: "[t]o divide (a city, land, etc.) into areas subject to particular planning restrictions; to designate (a specific area) for use or development in this manner " (my italics). [117] It is then not surprising to find evidence of subsequent continued use of that land, under tenancy agreements, as allotments, into the 1950s and 1960s. Requesting amendment of the maps to accord with the Agricultural Committee's decision was not a mere informal expression of a wish; it was a formal request to ensure that the 1935 Scheme properly reflected the Agricultural Committee's decision.”
“… be appropriated undersection 4 (4) of the Huddersfield (Corporation) Lands Act 1920 to allotment purposes and that the District Valuer be requested to submit his valuations in order that the necessary adjustments made be made in the accounts.”
“[122] It is quite clear to me that the minutes and discussion documents dating from the 1950s and later, are not in point. They overlook the earlier statutory appropriations of allotment land that occurred in the 1930s. Mr Knight correctly conceded in his skeleton argument that the council "cannot absolutely rule out the possibility of a historical appropriation which was not properly recorded or for which records have been lost". [123] The discussions in the 1950s must have taken place without those taking part in them having access to the documents from 1929-1943 which I have seen; otherwise those documents would surely have been mentioned in those minutes and discussions. Gallows Fields, Reinwood, Barcroft Road and Clayton Fields and the Cemetery Road site did not need to be re-addressed in the 1950s, though they were. [124] The table of sites dating from about March 1959 clearly indicates that the "regrouping" and decision making exercise that took place during the 1950s was undertaken without knowledge of and access to the pre-war and wartime documents which the diligence of the parties has enabled me to see for the purposes of this case. [125] If there were no statutory appropriations prior to the 1950s, as that document indicates, a power on the statute book since 1919 went unexercised for over 40 years. That seems to me wholly unrealistic.”
“To devote, set apart, or assign to a special purpose or use.”
“I do not find the concept of “appropriation” easy to grasp, since land which is “appropriated” is already in the council's ownership. More must surely be involved than a mere decision that land held for one purpose will henceforth be held for another. Otherwise, for example, if an authority decided to build houses on a small part of land it was holding for future light industrial development, the change of purpose would involve, indeed require, an “appropriation”, and, as a consequence of section 237, could materially effect the rights of any interested third parties. It seems to me that, at least in a case where third parties are known to have rights, an authority cannot properly embark on such a course unless it has good reason to believe that interference with such rights is necessary. I regard it as significant that a single provision in the 1990 Act, section 226, empowers an authority both to acquire land compulsorily and to “appropriate” its own land. I see “appropriation”, therefore, as the equivalent of compulsory purchase of a council's own land, and the same degree of “requirement” or “necessity” should apply in each case.”
“It was insufficient merely to state that the land was “in practice” held for a purpose which was not inconsistent with the new, informally appropriated, purpose. To be a valid appropriation to the stated use, the local authority must have concluded that the land subject to the appropriation was “not required” for its existing purposes (seeLocal Government Act 1933 , ss 163, 165). No such conclusion is recorded in the 1964 Deed or elsewhere nor does the 1964 Deed declare it was appropriating the land to a different purpose. Moreover, to take effect as an appropriation from one use to another the formal statutory mechanisms of theLocal Government Act 1933 needed to be complied with and ministerial approval (at that time) was needed. It was apparent none of the formalities had been observed. All this is unsurprising given the inspector was relying on and treating the 1964 Deed as an informal process.”
“I confess that I find it difficult to understand why the statutory approval of the corporation's new town plan 1973 by the minister, which had the effect of granting planning permission for the development of the land as “parkland/open space/playing field”, when coupled with the subsequent laying out and grassing over of the land, was not sufficient to amount to an “appropriation” of the land as recreational open space in the sense in which Lord Walker used that word.”
“I agree. If “appropriation” in that sense was required, then the new town plan provided it.”
“First, section 122(1) contains no prescribed formula for the procedure to be adopted when a council appropriates land from one purpose to another. It does however need the council to determine that it no longer requires the land for the purpose for which it was holding it up to the point of that appropriation.”
“The difficulty with that suggestion is the need for the authority, when exercising the power under section 122 of the 1972 Act, to be satisfied that the land “is no longer required” for the purpose for which it is held. That requires some conscious deliberative process so as to ensure that the statutory powers under which the land is held is clear and appropriation from one use to another cannot, in my view, be simply inferred from how the council manages or treats the land.”
“[Thanet’s] case is simply that in 2006 (a) the Land had not been used for allotment purposes for some time, (b) [Thanet] had decided it was surplus to requirements, (c) [Thanet] had formally sought the Secretary of State's consent to sale on the basis that it was surplus, and (d) the Secretary of State accepted that the Land was surplus and gave consent. Thereafter, the Land was not held as allotment land, but was simply held pending sale. Alternatively, if the Secretary of State's consent was not sufficient to change the basis on which the Land was held, then the status changed when the [Thanet] formally decided to sell, in 2008, and thus appropriated the land to be held for sale, as it was permitted to do given the 2006 Consent.”
“Since there are no statutory formalities required for an effective appropriation, such an appropriation ought sensibly to be regarded as having been made when [Thanet] put on formal record its intention to behave henceforth in a particular way, and seeks the necessary consents to enable it to do so legitimately. Once those consents have been received, the appropriation of the Land to another use is effective unless the imposed conditions make other provision, e.g. for continued use as allotment land for a further period before the consent to another use is effective. There were no such conditions imposed in this case, so the appropriation to another use occurred, on this analysis, on26 September 2006 when the Secretary of State gave consent to alternative use of the Land.”
“[97] If Shropshire Council had considered the application of these legal principles to the evidence in this case, it would have been very likely to conclude that, aside from the temporary war time allocation allotments, there had been no formal appropriation of any part of the Greenfields Recreation Ground to a purpose other than recreational use. There was no evidence of a resolution by the Borough Council or Town Council that a portion of the Recreation Ground was no longer required for recreational purposes and should be appropriated for another use. Nor was there any evidence that the formal procedures for appropriation had been followed. There was no evidence of ministerial approval for appropriation under the previous legislation, nor formal notices advertising proposed appropriation and consideration of objections under the LGA 1972, as amended. [98] In my view, it is very likely that the Borough Council was authorised to appropriate a portion of the recreation ground for use as temporary allotments during World War II. Mr Goodman's research revealed that theDefence (General) Regulations 1939 conferred on local authorities a temporary power to allocate its land for use as allotments, including land forming part of a park or open space, as part of the "Dig for Victory" project. The temporary power was revoked bysection 5(1) of the Emergency Laws (Miscellaneous Provisions) Act 1953 . Section 5(1) also made provision for local authorities to let land for the purpose of allotment gardens, "notwithstanding anything in any Act …. or any trust or covenant or restriction affecting the land". However, there was no evidence that the Borough Council ever resolved to exercise its powers under the 1953 Act to continue to let the land as allotments on a more permanent basis.”
“…. no council resolution authorising the purchase of the land for educational purposes or appropriating the land to educational purposes has been provided. The conveyances themselves do not show for what purpose the council acquired the land, and although the endorsements on those documents make reference to education, the authority for them is unknown.”
“I can see no real reason not to conclude, on that basis, that the acquisition was for educational purposes. No other statutory purpose for the acquisition was put forward; there was no suggestion that the parcels were acquired for public open space. I would have inferred that there were resolutions in existence authorising the acquisitions for that contemporaneously evidenced intended purpose, which simply had not been found at this considerable distance in time. It would be highly improbable for the lands to have been purchased without resolutions approving it. The presumption of regularity would warrant the assumption that there had been resolutions to that effect, and that the purpose resolved upon would have been the one endorsed on the conveyances. This is reinforced by the evidence in DL para 116, which shows the property, after acquisition, to be managed by or on behalf of the Education Committee.The actual use made of some of the land is of limited value in relation to the basis of its acquisition or continued holding.” (Emphasis added)
“In our view, Ouseley J's approach to the natural inferences to be drawn from the material before the inspector was correct, but he was wrong to be deflected by deference to the inspector's fact-finding role. The main difference between them was in the weight given by the inspector to the absence of specific resolutions, from which she found it “not possible to be sure” that the land had been acquired and held for educational purposes. On its face the language appears to raise the threshold of proof above the ordinary civil test to which she had properly referred earlier in the decision. But even discounting that point, she was wrong in our view to place such emphasis on the lack of such resolutions. Her task was to take the evidence before her as it stood, and determine, on the balance of probabilities, for what purpose the land was held. On that approach, Ouseley J's own assessment was in our view impeccable.”
“Ought I to conclude that the consent was in fact obtained? There is no direct evidence that it was. However, the Act of 1892 did not require the consent to be expressed in any particular form. The intention of the declaration of trust that both the 21-year lease and the freehold reversion should belong to the corps is, in my judgment clear, and to effectuate such intention it was on my view of the law necessary for consent to be obtained. Moreover the premises were for nearly 70 years after 1898 used and enjoyed as property of the corps, and public money was expended upon their maintenance in that character. Of themselves those circumstances entitle the court in my judgment to infer that consent was duly given by the Secretary of State at the proper time.”
“The statements in all of these cases and, of course, in McGraddie itself were made in relation to trials where oral evidence had been given. On one view, the situation is different where factual findings and the inferences drawn from them are made on the basis of affidavit evidence and consideration of contemporaneous documents. But the vivid expression in Anderson that the first instance trial should be seen as the "main event" rather than a "tryout on the road" has resonance even for a case which does not involve oral testimony. A first instance judgment provides a template on which criticisms are focused and the assessment of factual issues by an appellate court can be a very different exercise in the appeal setting than during the trial. Impressions formed by a judge approaching the matter for the first time may be more reliable than a concentration on the inevitable attack on the validity of conclusions that he or she has reached which is a feature of an appeal founded on a challenge to factual findings. The case for reticence on the part of the appellate court, while perhaps not as strong in a case where no oral evidence has been given, remains cogent.”