Allotments law: a summary

Definitions

There is no fixed definition of an allotment. The technical definition is a piece of land allocated or allotted to a person as the result of an inclosure award. There is a substantial amount of allotment land which was created in this way, usually for the benefit of the “labouring poor” in compensation for the loss of rights of grazing etc. on the common fields which were inclosed and divided up by inclosure awards.

Modern allotments are generally regulated under the Allotments Acts 1908–50. These Acts contain two definitions of “allotment”, which encompass most allotments owned or managed by local councils. These definitions are:

(a) an allotment garden: “an allotment not exceeding 40 poles in extent which is wholly or mainly cultivated by the occupier in the production of vegetable or fruit crops for consumption by himself or his family” (section 22(1), Allotments Act 1922);

(b) an allotment: “an allotment garden as defined in the 1922 Act, or any parcel of land, whether attached to a cottage or not, of not more than two acres in extent, held by a tenant under a landlord and cultivated as a garden or farm, or partly as a garden and partly as a farm” (section 1, Allotments Act 1925).

Allotments authorities

While some allotments are provided by private individuals, charities or trustees, most are provided by local authorities. District, unitary and parish councils and parish meetings are the relevant authorities in England. In Wales they are the county, county borough and community councils.

In England, district/unitary councils cannot provide allotments in areas where there is a parish council or a parish meeting, but in Wales the principal and community councils possess concurrent powers. Where in England a new parish is created, any allotments provided by the district or unitary authority are automatically transferred to the new parish authority.

Provision of allotments

All allotment authorities have power to provide allotments. They also have a duty to do so if there is a sufficient demand for allotments (section 23, Allotments Act 1908). The duty is confined to the provision of allotment gardens (in the case of a district with a population of 10,000 or more, the duty extends only to allotment gardens not exceeding 20 poles). Whether or not such a demand exists is for the authority to decide, but it must take into account any representation in writing made to it by any six electors or council tax payers resident in the area, to the effect that the circumstances of the area are such that it is the duty of the authority to take proceedings for the provision of allotments (section 23(2), Allotments Act 1908). It is believed that this procedure is rarely, if ever, used, however.

When faced with a statutory demand, or otherwise wishing to provide allotments, the council must use its best endeavours to acquire suitable land. It has power to acquire land, freehold or leasehold, by agreement or, if necessary, by compulsion. It may also take a lease or tenancy of land for the same purpose. However, the council may find it impossible to acquire land on reasonable terms, in which case it cannot meet the demand for allotments. While in theory a failure to meet such a demand could be challenged by way of judicial review in the High Court, such a challenge is extremely unlikely. High Court proceedings are very expensive and the outcome is always uncertain. In any event, the council would have a defence by arguing that, taking into account the interests of the local community as a whole, the provision of allotments on unreasonable terms would not be the best use of the council’s resources. Thus if the only suitable land was designated for residential or other development, the price of the land would have to reflect that value and the cost of acquisition would outweigh the benefit to the community as a whole.

Certain types of land can only be acquired by compulsory purchase if the expensive and complicated special parliamentary procedure is used. These include property belonging to a local authority, common land, open spaces, village greens and fuel or field garden allotments.

For historical reasons, most allotment land provided by local councils has been inherited from other persons or bodies, most notably in 1895, when parish councils were created and took over most of the non-ecclesiastical functions and properties of the parishes of the Church of England. Where a new parish council has subsequently been established, allotments owned by district or unitary councils should have been transferred to the new council.

The use of land for allotments is treated as an agricultural use for planning purposes and does not therefore require planning permission. Similarly, sheds and other structures used in conjunction with allotment land do not normally require planning permission so long as they do not exceed a certain size (4 metres in height or 200 cubic metres in capacity). Detailed information on this topic can be found in Sheds and other structures Q&A, a joint publication by the National Allotment Society and the Ministry of Housing, Communities and Local Government, which can viewed on the NAS’s website at nsalg.org.uk.

Letting of allotments

As a general rule, the letting of allotments is governed by the ordinary law and not by statute. This means that the terms of a tenancy are a matter for agreement between the council and the tenant. However, most councils offer standard terms in a printed document which tenants simply accept. The main contents of an allotment tenancy agreement are likely to be:

names and addresses of the parties
date
duration (usually from year to year without a fixed termination date)
amount of rent and date(s) payable (see below)
obligations of tenant (e.g. conditions as to cultivation – see below)
obligations of council (e.g. to pay rates and other outgoings, if any)
termination provisions (governed largely by statute – see below)
compensation provisions (see below)
signatures by or on behalf of the parties.

It is essential that every tenant has a written tenancy agreement. Allowing a tenant on to land on the basis of a verbal agreement is likely to cause difficulties in the future because the precise terms of the tenancy will almost certainly be forgotten or misunderstood. There is also the danger that the tenant may claim to be an agricultural tenant and subject to the security of tenure provisions in the Agricultural Holdings Act 1986 or the Agricultural Tenancies Act 1995.

Rent

The maximum amount of rent which can be charged for an allotment garden tenancy is such rent “as a tenant may reasonably be expected to pay for the land if let for such use on the terms (other than the terms as to rent) on which it is in fact let” (section 10(1), Allotments Act 1950). This obscure phrase was applied by a court in 1981 to refuse a council permission to raise its rent from 30p a rod to £1 a rod. The author is not aware of any later judicial interpretation (and would like to hear from readers about any such case).

In practice, rents for allotment gardens are low, ranging from perhaps £1 a year to £50 per year per plot. Many councils run their allotments at a loss.

The rent is commonly fixed by the tenancy agreement, which means that it cannot be altered without the consent of the tenant. This in turn means that it may be necessary to give a tenant notice to quit in order to increase the rent. However, there is nothing to prevent a tenancy agreement including a rent review clause allowing an alteration of rent after a period of notice. In one case, for example, the agreement provides that the rent may be increased after giving 12 months’ notice to the tenant.

Obligations of the tenant

The basic obligations of the tenant are to pay the rent, to cultivate the land and to keep the land tidy. To avoid creating an agricultural tenancy or a farm business tenancy, it is essential that the tenant is permitted to cultivate the land only to produce fruit and vegetables for personal consumption, i.e. for non-business purposes. A tenant has a statutory right to keep hens and rabbits for non-business purposes so long as they do not cause a nuisance or a health risk (section 12, Allotments Act 1950).

Termination provisions

The tenancy of an allotment garden can be terminated only by:

(a) the landlord giving the tenant a notice to quit of at least 12 months expiring on or before 6 April or on or after 29 September in any year. This overrides any different contractual provisions;

(b) the tenant giving the landlord notice to quit. No specific period is laid down by statute, but it is sensible for the statutory provision in (a) to be applied to the tenant’s notice;

(d) re-entry for non-payment of rent or breach of any term of the agreement or where the tenant becomes bankrupt or compounds with his creditors;

(e) one month’s notice to quit if the rent is in arrears for at least 40 days, or the tenant is not observing the rules relating to the allotment (if any), or the tenant goes to reside more than one mile outside the parish or district for which the allotments are provided.

Paragraphs (d) and (e) apply to all types of allotment.

Compensation

There are complicated statutory provisions governing the payment of compensation on the termination of an allotment tenancy. This is usually available, if at all, for any crops and for manure which the tenant loses where the council terminates the tenancy by notice or re-entry. The amount is settled by agreement or by arbitration if no agreement can be reached. Compensation can usually be minimised if a notice to quit expires at a time of year when there are few crops growing. If the tenancy is terminated by re-entry under © above, compensation for disturbance of one year’s rent is payable.

On termination of the tenancy, the tenant may, before the tenancy ends, remove the crops growing on the land and any fruit trees or bushes planted by him/her.

Disposal of allotment land

The consent of the Secretary of State (in England) and the National Assembly for Wales (in Wales) is required for the disposal by a local authority of allotment land for other purposes (section 8, Allotments Act 1925). Before giving consent, the Secretary of State or the Assembly must be satisfied that adequate provision is made for existing allotment holders displaced by the disposal or that such provision is unnecessary or not reasonably practicable. The Ministry of Housing, Communities and Local Government has published Allotments disposal guidance: safeguards and alternatives, which can be viewed at www.gov.uk.

Publications

The Law of Allotments by Paul Clayden is published by Sweet and Maxwell and can be ordered from its website at www.sweetandmaxwell.co.uk.

The National Allotment Society (www.nsalg.org.uk) publishes general information about allotments, as well as the information sheet about sheds and other structures referred to above.

In Wales, the Welsh Assembly Government has published Community Grown Food Action Plan, which refers to allotments and Guidance for Traditional Allotments and Community Led Gardening Projects. These can be viewed at www.gov.wales.

**********************************************

Written by Paul Clayden, expert in local council law
As appeared in Clerks & Councils Direct, January 2020
© CommuniCorp