Snelling & Anor v Burstow Parish Council

The general sale power in section 32 of the Small Holdings and Allotments Act 1908 applies to allotment land whose management vested in a parish council under section 6(4) of the Local Government Act 1894. Section 33(4) treats that land as acquired under the 1908 Act. Section 8 of the Allotments Act 1925 applies to land purchased for allotments in the ordinary sense, not to every form of land treated as acquired under the 1908 Act. Sections 27 of the Commons Act 1876 and 32 of the 1908 Act are overlapping alternative powers. The later power does not impliedly repeal the earlier one merely because it creates redundancy or reduces protection. The council may choose which power to exercise.

Burstow Parish Council owned allotments created under an 1855 inclosure award. The claimant allotment holders sought a declaration that the Council’s power to sell was limited to section 27 of the Commons Act 1876, which would require replacement land and restricted use of the sale proceeds.

The High Court dismissed the claim, holding that section 32 of the Small Holdings and Allotments Act 1908 applied through section 33(4), that section 8 of the Allotments Act 1925 applied, and that section 27 of the 1876 Act had been impliedly repealed to that extent: [2013] EWHC 46 (Ch). The central issues on appeal were the scope of section 8 and the relationship between the two sale powers.

The appeal was dismissed unanimously. Lord Justice Patten gave the judgment, with Lord Justice Christopher Clarke and Lord Justice Treacy agreeing.

1. Section 33(4). The natural reading of section 33(4) of the Small Holdings and Allotments Act 1908 was that it applied both to land dealt with under section 33(3) and to land whose management had been transferred under corresponding earlier legislation. Section 6(4) allotments were therefore treated as acquired by the parish council under the 1908 Act. The Council consequently had the benefit of the section 32 sale power.
2. Section 8 of the 1925 Act. The court rejected an extended meaning of purchased. The word had its ordinary meaning and was consistent with section 25(1) of the 1908 Act. Section 8 did not apply to the sale in question, so ministerial consent was unnecessary. If section 8 applied to every exercise of section 32, the county-council consent provisions in section 32 would become redundant. The reduced protection available under section 32 did not justify restricting its language.
3. Statutory scheme and implied repeal. If section 32 applied, its terms governed the proceeds of sale and no charitable trust attached to them. The difference between the protections in sections 27 and 32 was part of the wider statutory scheme. Implied repeal requires an inescapable logical contradiction or a construction of the later statute that is the only rational interpretation, as explained in O’Byrne v Secretary of State for Environment, Transport and the Regions [2002] HLR 30 and Kutner v Phillips [1891] 2 QB 267. Redundancy or anomaly was insufficient.
4. Overlapping powers. The maxim generalia specialibus non derogant did not require section 32 to be confined by section 27. The principle in Pretty v Solly (1859) 26 Beav 606 was difficult to apply to provisions in different, consecutive statutes where the later statute was comprehensive and expressly included the relevant allotments. Sections 27 and 32 could stand together as overlapping powers. Section 27 was not impliedly repealed, and the Council could choose which power to exercise. The High Court’s result was therefore affirmed, although its implied-repeal reasoning was not adopted.

1. Court of Appeal (Civil Division) — [2013] EWCA Civ 1411: appeal dismissed. Section 32 of the Small Holdings and Allotments Act 1908 applied, but sections 27 and 32 remained overlapping alternative powers.
2. High Court of Justice, Chancery Division — [2013] EWHC 46 (Ch): claim for a declaration limiting the Council’s power of sale to section 27 of the Commons Act 1876 dismissed.