Can allotments be appropriated if a development is strategically important?
Whilst the bar is rightly set high, a recent case has shown that allotments are not sacred, that a sufficiently important development can displace them and that developers should not be discouraged from incorporating them into strategic developments.
Allotments are a precious resource and their appropriation for an alternative use is governed by Section 8 of the Allotments Act 1925, now augmented by the 2014 Allotment Disposal Guidance: Safeguards and Alternatives.
Section 8 sets out the statutory criteria and the Guidance sets out the policy criteria for consent to be given, and the distinction is important in that the statutory criteria are rigid while the policy criteria are more flexible and can be relaxed in exceptional circumstances.
In the case of Mr. Moore, he applied on behalf of himself and his fellow allotment holders for a judicial review of the Secretary of State's decision to give his consent to the appropriation of their allotments by Watford Borough Council to facilitate the regeneration of a neglected part of the town, but the judge eventually found in favour of the minister.
The Council first applied for consent to appropriate the allotments in February 2013 and consent was given in May 2013, and a second application in respect of an alternative proposal made in September 2013 was granted in December 2013, so the first point to note is that, all things being equal, the process of obtaining the Secretary of State's consent takes about three months.
The allotments were established in 1882 with 128 plots but there are now only 24 mainly elderly allotment holders cultivating 31 plots after previous appropriations and closure of the waiting list. The plots have been well managed and are consequently productive in respect of a wide variety of crops. Conversely, the alternative allotments being offered by the Council are about a mile away and would have to be cultivated from scratch, not an attractive proposition for the more senior gardeners among the objectors.
The judicial review is on the ground that the policy criteria in the Guidance had not been satisfied and that there were no "exceptional circumstances" justifying their relaxation.
The statutory criteria in Section 8 states that, for consent to be given, the Minister must be satisfied that "adequate provision will be made for allotment holders displaced by the action of the local authority or that such provision is unnecessary or not reasonably practicable". The policy criteria in the Guidance states that:-
- The allotment is not necessary and is surplus to requirements
- The number of people on the waiting list has been taken into account
- The local authority has promoted the availability of sites and has consulted the National Allotment Society
- The implications for disposal for other local plan policies have been taken into account
The Guidance provides that, in addition to the mandatory statutory criteria, the policy criteria will be applied thoroughly to any application however "in exceptional circumstances, the Secretary of State may be content to grant consent for disposal where the statutory criteria, but not all the criteria in the policy guidance, are satisfied".
The nuts and bolts of the case are inevitably specific to its facts, but the above principles were debated and helpful guidance can be distilled from the ruling. Mr. Moore argued that (a) the four policy criteria should be satisfied in full before looking at whether any exceptional circumstances existed, but this was rejected by the Court on the basis that the Guidance makes it abundantly clear that this is not the case and (b) that the circumstances were not exceptional enough to be, well, exceptional, but this too was rejected by the Court which noted that Mr. Moore merely seemed to want to replace the Secretary of State's statutory discretion with his own.
An interesting fact is that the allotments were not actually required for the development to go ahead at all, but only to enable its viability to be enhanced and for a more flexible configuration to be adopted. There was also no guarantee that the allotments would be used for the additional market value family homes (for which there was an acknowledged need) which would allow for 35% social housing (which would mainly comprise flats), but the possibility of them being built on the level part of the site comprising the allotments was improved by the appropriation.
Taking into account the allotment holders' human rights as it was obliged to do, the Court also decided that the appropriation could still be permitted when the effect on them was balanced against the greater benefit for the wider community of Watford and the offer of an alternative, albeit inferior, site nearby.
The main point to take from the case is that, precious though they rightly are, allotments are not wholly sacrosanct when confronted by a vitally important development, particularly housing, which is good news for developers.
R (on the application of Moore) vs. Secretary of State for Communities and Local Government with Watford Borough Council and the National Allotment Society as interested parties 2016 EWHC 2736 (Admin)