Who, if anyone, must consent to a Council’s disposal of allotments?

The law relating to allotments is a patchwork of archaic and fragmented material having been developed over centuries.

So much was obvious when the High Court (Vivien Rose sitting as a Deputy Judge of the Chancery Division) in Snelling and another v Burstow Parish Council [2013] EWHC 46 (Ch) considered a challenge to a disposal by the local parish council from claimants who were both allotment holders.

The council wished to sell part of the allotment site in order to build housing there and while the sale would result in about ten allotment holders being displaced they could, so the council said, all be accommodated on other land either within the same site or on a new site close by.

The court accepted that the parish council had applied the correct power of sale in relation to its proposed sale (set out in s32 Small Holdings and Allotments Act 1908). Therefore, under s8 Allotments Act 1925, the Secretary of State's consent to the disposal was required as was intended.

The claimants' argument that the power of sale contained in s27 Commons Act 1876 was the correct power was rejected. Had this been otherwise then the consent of the Inclosure Commissioners would have been required and that consent could only be given if the intention was to buy other more suitable allotment land and the proceeds of any sale were not released to the allotment wardens but kept by the Commissioners until the replacement land was purchased.

The court held that while s27 of the Commons Act 1876 did not apply to the parish council's proposed sale of part of the allotment site, it was not the case that s27 was entirely redundant since the parish council had not ruled out that there may be other kinds of allotments for which the section would still have some residual effect.