Garden allotments which came under the management of the parish council by virtue of section 33(4) of the Small Holdings and Allotments Act 1908 were intended to be governed exclusively by the powers set out in section 26 and onwards of that Act. Accordingly, the parish council’s power to sell the allotments was the power conferred by section 32 of the 1908 Act, subject to obtaining the consent of the Secretary of State for Communities and Local Government pursuant to section 8 of the Allotments Act 1925, and not the power under section 27 of the Commons Act 1876.

Vivien Rose QC so held in the Chancery Division when dismissing the claim for a declaration by the claimants, Susan Snelling and Roy Merison, who were both allotment holders at a site called Hunter’s Moon in Burstow, Surrey brought against the defendant, Burstow Parish Council, the freeholder of the site.

VIVIEN ROSE QC said that the defendant wished to sell part of the site in order to build housing there, which would result in about ten allotment holders being displaced but they could, the defendant said, all be accommodated on other land within the same site or on a new site about 1.2 kilometres away. The issue raised by the claimants was what power the defendant could use to sell part of the site. They agreed that the allotments fell within section 33(4) of the 1908 Act and that that appeared to mean that the power of sale in section 32, along with other powers and duties in sections 25 onwards of the 1908 Act applied to the allotments. However, they stated that that created a condundrum because there were now two inconsistent powers of sale for the allotments, that contained in section 27 of the Commons Act 1876, which had never been repealed, and that contained in section 32 of the 1908 Act. They submitted that according to well-established principles of statutory construction, a court should be slow to conclude that the later statute impliedly repealed the provisions of the earlier statute. Her Ladyship accepted the defendant’s submission that, as regards allotments which came under the management of the parish council by virtue of section 33(4) of the 1908 Act, they were intended to be governed exclusively by the powers set out in sections 26 onwards of that Act. The defendant was correct in seeking the consent of the Secretary of State under section 8 of the 1925 Act because the power of sale that it wished to exercise to dispose of the allotments was the power conferred by section 32 of the 1908 Act and not the power under section 27 of the 1876 Act.