Moore, R (on the application of) v Watford Borough Council & Anor

Under Allotments Act 1925, section 8, the Secretary of State has a broad discretion to consent to the appropriation of allotment land once adequate alternative provision is secured. A policy requiring exceptional circumstances before departure from policy criteria is lawful, provided it remains flexible and is applied case by case.

Exceptional circumstances need not be unique, unprecedented or very rare. Several ordinary factors may cumulatively amount to exceptional circumstances. The decision-maker may consider potential future benefits and need not establish that development of the allotment land is indispensable. Where property rights are engaged, the decision must also satisfy proportionality review.

The claimant, an allotment holder, challenged the Secretary of State’s decision to consent under section 8 of the Allotments Act 1925 to Watford Borough Council’s appropriation of Farm Terrace allotments for a major regeneration scheme.

The statutory criteria and three of the four policy criteria in the 2014 guidance were satisfied. The criterion that the allotment land was unnecessary and surplus to requirements was not. The Secretary of State nevertheless concluded that exceptional circumstances justified consent, having regard to the scheme’s regeneration, housing, hospital, design and viability benefits.

The issues were whether the policy had been correctly interpreted and applied, whether the decision was irrational or disproportionate, and whether it breached legitimate expectation or the claimant’s rights under Article 1 of the First Protocol.

1. Permission and outcome. Permission to apply for judicial review was granted, but the substantive claim was dismissed.
2. Section 8 of the Allotments Act 1925 confers a broad discretion. It contains no statutory presumption in favour of retaining allotment land. Consent cannot be given unless the Secretary of State is satisfied that adequate provision will be made for displaced allotment holders, but that requirement was met.
3. The 2014 guidance was a lawful policy. A policy may provide for departure only in exceptional circumstances, provided the decision-maker retains a genuine discretion. “Exceptional” means unusual, special or uncommon; it need not mean unique, unprecedented or very rare. The guidance did not require an absolute necessity for development on the allotment site.
4. The Secretary of State correctly identified that one policy criterion was unmet and then asked whether exceptional circumstances justified consent. He was entitled to assess the cumulative effect of the scheme’s regeneration, housing, possible school, hospital, design and viability benefits. Individual factors did not each need to be exceptional. Potential future benefits could be considered, and uncertainty about the precise hospital or school use did not make the decision unlawful.
5. The challenge to the weight given to those matters was a merits challenge. The Secretary of State took relevant considerations into account, ignored irrelevant considerations and reached a rational conclusion. The legitimate-expectation argument added nothing because the guidance had been lawfully applied.
6. Because Article 1 of the First Protocol was engaged, proportionality was required. Applying the four-stage test in In re Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3, the regeneration scheme was a legitimate aim, appropriation was rationally connected to it, and no less intrusive measure had been identified. The public benefits, nearby alternative allotments, relocation assistance and compensation struck a fair balance.

The judgment records an earlier judicial review in the same litigation. In R (Moore & Ors) v Secretary of State for Communities and Local Government and Watford Borough Council [2014] EWHC 3592 (Admin), Ouseley J quashed the Secretary of State’s earlier consent decision on one ground. The present court considered the Secretary of State’s fresh decision under revised guidance and dismissed the substantive claim.