Adamson, R. (On the Application Of) v Kirklees Metropolitan Borough Council

The ministerial-consent requirement in section 8 of the Allotments Act 1925 applies only to land that a local authority has purchased or appropriated for allotment use. Actual use as allotments, even for many years, is evidence but does not itself establish appropriation. Appropriation is context-dependent. It ordinarily requires a conscious deliberative decision to devote, set apart or assign land to the new purpose, together with compliance with conditions attached to the relevant statutory power. No particular form of resolution is prescribed. Lost resolutions and other documents may be inferred or weighed on the balance of probabilities. On the evidence, the 1935 zoning minute did not amount to appropriation, so ministerial consent was unnecessary and the appeal was allowed.

Kirklees Metropolitan Borough Council acquired the land in 1920. It had been used as allotments since at least the mid-1930s. In 2018 the council decided to appropriate it for educational facilities without obtaining ministerial consent under section 8 of the Allotments Act 1925.

Mr Adamson challenged that decision. Kerr J held that the council had appropriated the land for allotments in 1935, when its Agricultural Committee resolved that it should be zoned for allotments, and that the later appropriation was therefore invalid without ministerial consent: [2019] EWHC 1129 (Admin). The council appealed. The central issue was whether the 1935 resolution, viewed with the surviving documentary evidence, constituted a statutory appropriation.

1. Appeal allowed. The 1935 minute was not an appropriation of the land for allotment purposes in the sense used in local-government law and section 8 of the Allotments Act 1925. The council therefore did not require ministerial consent before appropriating the land for educational purposes.
2. Section 8 applies only where land has been purchased or appropriated for allotment use. Actual use as allotments is insufficient by itself: Snelling v Burstow Parish Council [2013] EWCA Civ 1411. Appropriation takes its meaning from context and involves devoting, setting apart or assigning land to a special purpose.
3. There is no universal statutory formality for appropriation. Nevertheless, the evidence must show a conscious deliberative decision to change the purpose for which the land is held. Any conditions attached to the statutory power being exercised must also be satisfied. A formal minute is the best evidence, but it is not indispensable. Lost resolutions may be inferred where appropriate, and the identity of the managing committee and the land’s actual use may have evidential significance, although use alone may be insufficient.
4. The 1920 private Act gave the council a broad power to appropriate the Ramsden estate for any purpose for which it could lawfully hold land. The associated accounting transfer was required after appropriation and was not a condition precedent. The 1919 statutory power, by contrast, required governmental consent and was available only where no other appropriation power existed.
5. The Agricultural Committee’s 1935 resolution and the inferred alteration of the town-planning map could have supported appropriation, because reservation of land for allotments imports more than temporary use. However, the later documentary record, the contrast with expressly recorded appropriations in the 1950s, the absence of an accounting adjustment and the council’s separate power to use the land without appropriation collectively made it more likely than not that no appropriation had occurred.
6. Appellate restraint is particularly important where oral evidence has been assessed. This case was different. It turned on the interpretation and weight of a single historical document and was more akin to R (Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs [2019] UKSC 58 than to DB v Chief Constable of Police of Northern Ireland [2017] UKSC 7.
7. Lord Justice Lewison’s additional observation that the Agricultural Committee may not have possessed the power under the 1920 private Act was expressly not decisive.

• Court of Appeal (Civil Division): allowed the council’s appeal and held that ministerial consent was not required: [2020] EWCA Civ 154.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Kerr J held that the land had been appropriated for allotments in 1935 and that the proposed educational appropriation required ministerial consent: [2019] EWHC 1129 (Admin).