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Allotments Must Make Way for Social Housing

A Court of Appeal ruling has shed much-needed light on the confusing reaches of the law relating to allotments but has also dealt a devastating blow to plot holders who bitterly objected to their beloved vegetable patches being sold off to make way for a social housing development.

Keen gardeners Susan Snelling and Roy Merison clashed with Burstow Parish Council over its plans to sell part of the Hunter’s Moon allotments, near Horley, Surrey, which had been marked out in 1855 for the benefit of the ‘labouring poor’ and had since become a central feature of the village.

The Council argued that the land was desperately needed to meet demand for affordable housing in the area, and had obtained the consent of the Secretary of State for Communities and Local Government to exercise its power of sale under Section 32 of the Small Holdings and Allotments Act 1908.

The Council had offered to move displaced allotment holders to other parts of Hunter’s Moon or to relocate them to a site 1.2 kilometres away. However, those affected pointed to their emotional attachment to their plots and compared the alternative site on offer to a rubbish tip with ‘sub-standard’ clay soil.

Lawyers representing the allotment holders argued that the Council’s power of sale was limited to that contained within Section 27 of the Commons Act 1876 and that it was thus obliged to use the proceeds of sale to buy alternative fertile land suitable for use as allotments.

Their arguments did not persuade the High Court, which ruled in the Council’s favour. However, they submitted on appeal that only the Section 27 power was available to the Council because the allotments fell into a special category, having been created under the Inclosure Act 1845.

The Court rejected the Council’s plea that Section 27 had been impliedly repealed by the enactment of Section 32. Although it was hard to see why Section 27 had been preserved, it was possible to give effect to the newer and much wider power of sale contained within Section 32 without removing Section 27 from the statute book.

Dismissing the allotment holders’ appeal, however, the Court found that that the ‘better view’ was that Sections 27 and 32 were different, although overlapping, provisions and that the Council was therefore entitled to choose which of the two powers of sale to exercise in order to achieve its objective.