The Appropriate Way To Appropriate Land

The power to appropriate land is an important weapon in a local authority’s armoury and sits neatly alongside other statutory powers, such as compulsory purchase of land and highway stopping up orders.

Appropriation in this context is generally accepted to mean “allocated or designated” from one use to another under statutory powers. This means that a local authority must make a formal decision to appropriate land by way of a conscious or deliberate process, to ensure compliance with the necessary statutory power relied upon.

In a planning context, statutory powers exist under housing and planning legislation to appropriate land for planning purposes and these are often used where land is being assembled for re-development. This can indirectly assist developers in bringing forward sites which are subject to fragmented ownership and, potentially, override private rights (including rights of light), which may otherwise be an impediment to development.

More general powers to appropriate land exist under the Local Government Act 1972 (as amended), where the land is no longer required for the purpose for which it is held by the council.

Need for compliance with statutory powers

A local authority must ensure that it exercises any statutory power to appropriate land lawfully and in accordance with the specific requirements of the power being relied upon. Failure to do so could result in any decision to appropriate land being quashed by the courts.

The recent Court of Appeal decision in R (on the application of ADAMSON) v KIRKLEES METROPOLITAN BOROUGH COUNCIL & Others is interesting in this context as the Council itself had argued that an alleged appropriation of land for allotment use had never taken place. This was despite the land being used as allotments since the 1930’s.

The land had been purchased by the council’s predecessor in 1920 pursuant to powers under the Huddersfield Corporation (Lands) Act 1920. At the time of acquisition, however, there was no intention that the land would be used as allotments.

At the time of purchase, local authorities were also under a separate statutory duty (Small Holdings & Allotments Act 1908), to provide allotments in their area where a demand for these could be demonstrated.

Some 80 years after the council first allowed use of the land for allotments, it subsequently sought to appropriate the land for educational purposes and relied upon powers to appropriate under Section 122 of the 1972 Act; arguing that the land was “no longer required” for the purpose for which it is held by the council.

That decision was subject to a legal challenge on the basis that the council did not follow the correct statutory process under the Allotments Act 1925. That is, it did not obtain the consent to that appropriation from the (now), Secretary of State for Housing, Communities and Local Government.

That consent is required where land has been acquired or appropriated for allotment use. In this respect the claimant relied upon the fact that the land had been used as allotments for 80 years and a minute of the council’s agricultural committee taken in December 1935 confirmed that allotment use.

The judge at first instance had accepted the claimant’s argument and held that formal appropriation took place at the 1935 committee meeting when, as part of a town planning scheme, the Council decided to "zone" the land for allotments.

That decision was overturned by the Appeal Court.

The Court Of Appeal’s reasoning

The Appeal Court stressed the importance of it not interfering with a trial judge's findings of fact but said that where those findings are based largely on inferences drawn from documents, this would not command the same degree of deference.

Having examined the various documents (including some further documents from the 50s and 60s, all of which showed that no formal decision to appropriate had been taken), it set out a number of important matters to be considered in this context, which in combination, led to a conclusion that a lawful appropriation had not taken place.

• The 1935 committee neither used the language of appropriation nor referred to any power of appropriation. It was merely identifying land in use as allotments, some of which was under its control and some of which was not.
• The purpose of a town planning scheme was not to appropriate land from one use to another;
• Subsequent documents/events made it clear that the committee did not think it had made an appropriation;
• Formal appropriation would have required an adjustment to the local authority's internal accounts, and none was evident;
• Although it might be possible to infer appropriation from long use, that was only because of the presumption of regularity. There was no need to apply that presumption in the instant case because the council had been entitled to use the land for allotments (under the 1908 Act), without any appropriation being necessary.
• The committee only had delegated powers and duties under the Allotments Act 1922 and the 1925 Act. An appropriation under those Acts required formal government consent. There was no evidence that such consent had been obtained.

On that basis, no formal decision to appropriate the land for allotments had been made by the council previously and the Secretary of State’s consent to appropriation for educational purposes was not required.

Discussion

As the Appeal Court made clear, it may seem very strange for a situation to arise where a use has been carried out for over 80 years but was never subject of an appropriation to that use. It did stress however, that no individual points that it had identified in rejecting the claim, were decisive on their own. It was the in- combination evidence that had led to the conclusions reached.

Clearly, the best way of showing that such appropriation has taken place is by a local authority recording that fact in a formal resolution or minute of the meeting that took the decision in question.

Critically, however, the Appeal Court did not close the door on there being a valid appropriation where records of such appropriation may have been mislaid or lost. That also extends to a ministerial consent to appropriate which may have been obtained but has since been lost.

Ultimately, this will be a question of evidence for the court, rather than law, and in evaluating that evidence the court will make an allowance for the fact that relevant documents may not be physically available due to the passage of time.

As in this case, however, the fact that land has been used for a particular purpose for a length of time is unlikely to be sufficient evidence on its own that appropriation has taken place. There may however be evidential significance in identifying the council’s committee that is actually tasked with managing the land; and how the land is in fact used.

Ultimately, this case is a stark reminder to local authorities of the need to fully comply with the specific requirements of a statutory power and to have the best evidence available (from whatever source), when making decisions to appropriate. Developers and investors seeking to rely on the subsequent benefits arising from appropriation will clearly need to be satisfied that the relevant statutory power has been exercised lawfully.

In that respect, local authorities considering potential decisions to appropriate land now, or in the future, would be well advised to carry out a legal audit of available documents so that their decisions are as legally robust as possible.