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 purposes under powers contained in Defence Regulations. By the late 1970s the land had fallen into disuse. The council operated a tree nursery on that part of the land for some 30 years, but it closed in the late 1990s. The council proposed to grant planning permission for house building on the land. An officer’s report presented to the relevant committee expressed the view that the land was not held as public open space; and that it was separate from the remainder of the recreation ground. Based on that report the council granted planning permission for housing.
Held: The decision was set aside.
Part of her reasoning was based on the inadequate inquiries that had been made before concluding that the land was not held a public open space. She found that the land had been originally acquired as public open space. She then went on to consider whether there had been any change in that state of affairs. The question she posed was whether the land had been appropriated for uses other than public recreation. Having set out the statutory powers of appropriation, and some of the case law, she said: ‘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.
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 the Defence (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 by section 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.’
There was, therefore, no evidence either of a formal decision by the council; nor evidence of satisfaction of any of the conditions required to be fulfilled before a lawful appropriation could be made. The mere fact that the land had been used for other purposes (including as allotments and as a tree nursery) was not enough.
Judges:
Mrs Justice Lang DBE
Citations:
[2019] EWHC 3539 (Admin)
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Adamson, Regina (on The Application of) v Kirklees Metropolitan Borough Council CA 18-Feb-2020
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.
Lists of cited by and citing cases may be incomplete.
Planning, Land, Local Government
Updated: 19 October 2022; Ref: scu.648115
