Appropriation was not in sufficient form
The claimants had challenged an order supporting the decision of the Council to use their allotments for a new primary school, saying that the land had be appropriated as allotment land, and that therefore the consent of the minister was needed.
Held: The appeal failed. The use of the word appropriation in the Council minutes had not had the effect of a full statutory appropriation to the sole purpose claimed, and was not accompanied by expected accounting records. While ‘it is not necessary for an appropriation to be recorded in a resolution which uses that very word. But when all the various points are taken together, particularly the contrast between what happened in the 1930s and what happened in the 1950s, I come to the reluctant conclusion that the judge’s decision cannot stand . . 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.
Lord Justice Lewison
[2020] EWCA Civ 154
Bailii
Allotments Act 1925 8, Land Settlement (Facilities) Act 1919, Local Government Act 1972 122(1), Small Holdings and Allotments Act 1908 25, Local Government Act 1933 163
England and Wales
Citing:
Cited – Attorney-General v Hanwell Urban District Council 1900
Where a local authority acquires land for one purpose, it cannot use the land for a different purpose unless authorised to do so by statute. The property had actually been conveyed to the council but the council was restrained from using the . .
Cited – Dowty Boulton Paul Ltd v Wolverhampton Corporation (No 2) 1976
The right to take-off and land airplanes on an airfield enabled the dominant owners to step in and mow the field sufficient to create and maintain runways when the servient owners discontinued its use as an airfield. This was held not to amount to . .
Cited – Regina v Leeds City Council 1997
The Court was asked whether land had been appropriated for planning purposes.
McCullough J said: ‘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 . .
Cited – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Cited – Malpass, Regina (on The Application of) v The County Council of Durham Admn 25-Jul-2012
The question was whether the council held land as open space, either under the Public Health Act 1875 or under the Open Spaces Act 1908. The title deeds under which the council acquired the land in 1936 did not state the purpose for which it had . .
Cited – Barkas v North Yorkshire County Council CA 23-Oct-2012
The court was asked: ‘When local inhabitants indulge in lawful sports and pastimes on a recreation ground which has been provided for that purpose by a local authority in the exercise of its statutory powers, do they do so ‘by right’ or ‘as of . .
Cited – Snelling and Another v Burstow Parish Council CA 12-Nov-2013
Appeal by allotment holders against rejection of objection to proposed sale of allotments for development.
Held: The requirement under section 8 of the 1925 Act to obtain the Minister’s consent does not apply to all land which is in fact used . .
Cited – Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .
Appeal From – Adamson, Regina (on The Application of) v Kirklees Metropolitan Borough Council Admn 9-May-2019
The Court was asked whether the defendant local authority (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. . .
Cited – Goodman, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs Admn 30-Jul-2015
The local council had acquired land for open space purposes. It subsequently appropriated the land for industrial and employment purposes. But the land continued to be used for recreation. On an application to register the land as a town or village . .
Cited – Lancashire County Council v The Secretary of State for The Environment, Food and Rural Affairs and Another Admn 27-May-2016
Ouseley J he said that he would have arrived at a different conclusion from the Inspector as to the purpose for which the Authority had acquired the land at issue; but considered that that did not entitle him to interfere with the inspector’s . .
Cited – Lancashire County Council, Regina (on The Application of) v Secretary of State for Environment, Food and Rural Affairs and Another CA 12-Apr-2018
The court was asked: ‘Did the concept of ‘statutory incompatibility’ defeat an application for the registration of land as a town or village green under section 15 of the Commons Act 2006? ‘ At first instance, the judge had held that he could not . .
Cited – Ramsgate Town Council v Thanet District Council ChD 9-Nov-2018
The question at the heart of this matter is what is needed to constitute an effective appropriation of land from one designated use to another, and in particular from designated use as allotment land to land able to be used for other purposes. The . .
Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
‘The principal issue in these two appeals relates to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for . .
Cited – In Re Edis’ Declaration of Trust 1972
The Artists’ Rifles took a building lease of land in 1888, on which they constructed a drill hall financed at least in part by public subscription. They acquired the freehold 10 years later. The drill hall remained in use for some 70 years, and . .
Cited – Day, Regina (on The Application of) v Shrewsbury Town Counci and Another Admn 19-Dec-2019
The court was asked whether the council held land as public open space. Its predecessor had acquired the land for that purpose in 1926, and had used it as such. During the war, part of the land had been temporarily appropriated for allotment . .
Cited – DB v Chief Constable of Police Service of Northern Ireland SC 1-Feb-2017
The appellant said that the police Service of Northern Ireland had failed properly to police the ‘flags protest’ in 2012 and 2013. The issue was not as to the care and effort taken, but an alleged misunderstanding of their powers.
Held: Treacy . .
Lists of cited by and citing cases may be incomplete.
Land, Local Government
Updated: 01 November 2021; Ref: scu.648241