Western Power Distribution Investments Ltd v Cardiff City Council (Rev 1)

When appropriating council land under Local Government Act 1972, s 122, the council must determine whether the land is no longer required for its existing purpose. That means asking whether it is still needed in the public interest of the locality. The decision maker may consider established de facto use and the benefits of the proposed use, even where the land’s existing use involved an unlawful exclusion of the public. The decision is unlawful, however, where members rely on materially incorrect or inadequate information about alternative public space, or are denied a proper opportunity to address a statutory conservation duty under Wildlife and Countryside Act 1981, s 28G.

Cardiff City Council resolved to appropriate a fenced plot at South Rise allotments for allotment use under Local Government Act 1972, s 122. The land had originally been acquired for public walks or pleasure grounds and included allotment plots, a car park and a grassed strip known as the Blue Strip.

The adjoining landowner challenged the decision by judicial review. It argued that the Council had applied the wrong test, failed to consider the continuing need for public open space and the effect on nearby Sites of Special Scientific Interest, and relied on inaccurate information about other recreational space in the locality.

1. The claim succeeded. The Council’s decision of 12 July 2012 was quashed.
2. Under Local Government Act 1972, s 122, the Council had to ask whether the land was no longer required for the purpose for which it was held immediately before appropriation. The expression “not required” means not needed in the public interest of the locality. The Council asked itself that question and did not reverse the onus of proof.
3. The Council was entitled to take account of the allotment society’s submissions and the land’s 36 years of de facto allotment use, even though the public had been unlawfully excluded. The intended use under the planning permission was not material to the decision.
4. The information supplied to members about local open-space provision was materially inaccurate and inadequate. The reports relied on out-of-date surveys, included educational land unavailable to the public, and failed to disclose the substantial deficit shown by the 2009 survey in all three relevant wards. The reports also wrongly presented reservoir walks as a viable and preferable alternative to the Blue Strip.
5. Those errors materially affected the decision whether the land was still needed as public open space. They also meant that members had no proper opportunity to comply with the Council’s duty under Wildlife and Countryside Act 1981, s 28G, to take reasonable steps, consistently with the proper exercise of its functions, to further the conservation and enhancement of the special interest features of the nearby SSSIs.

First-instance judicial review proceedings. The judgment refers to earlier proceedings concerning delay in the appropriation exercise, but gives no citation for a prior determination of the merits.