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Managing Allotments

Recently, the National Allotment Society (NAS) has been contacted by quite a few of our local authority members and others regarding the need to increase the rent that they charge for allotment plots. The reasoning behind the increase can vary, from the fact that there has not been an increase for many years to the allotment plots being heavily subsidised by the taxpayers. Given the timing, it would seem that a big driving force behind the need for rent increases is the sharp rise in the cost of living that we all face. However, there are alternatives to simply increasing the rent that could save local authorities money, as well as offer positive benefits to the allotment holders. The alternatives being considered here are with regards to issuing some or all of the management responsibilities for the site to an allotment association on the site.

Before considering the different management options available, it is important to understand the legal situation with rent increases, such as how increases can be implemented and what level can rents be set to.

Firstly, it is good practice that when any rent increases or rule changes are being considered, the plot holders should be consulted on the change. This allows for any major concerns to be highlighted and dealt with at an early stage.
The level of rent being considered must be in line with section 10 of the Allotments Act 1950 and must therefore be a “reasonable” amount. Case law has shown that when considering what is a reasonable amount for the rent, the local authority should compare the rent to: other sites in the nearby area, the rate of inflation, increases made to other leisure activities and other factors. It is important that all of the funds from the collected rents are being re-invested into the allotment site and not being used to prop up other areas for the council. Any excessive profits from the rent would likely show that the rent is set unreasonably high.
When introducing the rent increase itself, 12 months’ notice of the increase must be given outside of the growing season (which runs from the 6 April to 29 September). This is in line with Section 1 of the Allotments Act 1922 (as amended by the 1950 Act). The only exception to this is where the tenancy agreement has a fair rent revision clause included that provides for a shorter period of time.
Partially self-managed
Alternatively, councils could choose to share some or all of the site management responsibilities with an allotment association on the site. This will help save the council in administration costs as well as costs associated with some of the repairs and maintenance depending on what responsibilities are shared. The first alternative form of management to be considered is partial self-management. This is the simplest method to set up in that the council only needs to establish a simple management agreement, which could be as basic as a simple table where all the responsibilities are listed in the first column and then the next column marks out whether it is the council or the association that is expected to manage that responsibility. It is important to note, however, that with partial self-management, councils cannot pass on the responsibility for letting plots or terminating tenancies. This is due to the fact that the association will not have sufficient legal interest in the land in order to perform these tasks without a lease in place.

The main benefit for partial self-management is that it is easy to set up and change over time, and is a great fit for fairly new, or less established associations. This option may be less desirable in situations where the association wants to have more control over the site, particularly where they may be looking to apply for grant funding and need to be able to show that they have a lease in place for the funding.
In contrast, a local authority can establish a lease with an association on their allotment site to give them the legal interest in the land and allow them to be fully self-managed. In setting up self-management, councils would be advised to perform due diligence checks on the association. Such checks should include looking at the group’s constitutional rules so that the council can be satisfied that the group can sufficiently manage itself for the long term. Once satisfied, the council and association can enter a period of negotiation to discuss and agree the rms of the lease. Following this, a heads of terms document can be produced and agreed, before then looking to draft the lease itself.

When producing the lease, there can be a tendency for some councils (or the third party assisting the council) to use a template lease that is more relevant to a standard commercial property rather than an allotment. This is ill-advised in many cases, as it can be confusing for the association and include content that is not relevant for an allotment. For any councils or allotment associations that are members of the NAS, lease agreement templates are available, and the NAS can also provide comments on any drafts.
It is important to note when considering what terms to include in the lease that whilst the majority of tasks could be passed to the association, the council cannot escape all liability for the allotment site. The council will still owe a basic duty of care to the users of the site and the association will arguably be viewed as the agents of the council. Therefore, it would be advisable to still perform due diligence checks on the association from time to time, whether that be by performing inspections, meeting with the committee, etc. It can also be advisable for councils to hold on to some of the responsibilities that are likely to cause the most significant issues such as the replacement of any boundaries or the maintenance of trees.
Once the lease is signed, if the term is longer than seven years then it must be registered with the Land Registry. It would be best to clarify who’s responsible for the registration of the lease during the negotiation stage. Following the registration if applicable, the association can then begin to perform the day-to-day management responsibilities set out in the lease.
The advantage for this style of management is that councils can see a more significant drop in administration fees and, provided the association runs well, the plot holders benefit by being able to directly influence how to improve the site. Provided that the agreement and the appropriate due diligence is performed, there should be few downsides to this approach other than it being less suited to associations that are perhaps less eager and have fewer members interested in volunteering to join the committee.
When signing a lease with an association for them to take on self-management, it is important to note what is the legal structure of the association. For starters, if the association is unincorporated, then they will need trustees to sign the lease agreement on behalf of all of the members. As part of the council performing its due diligence checks for such a group, the council should be looking to see if the group has rules within their constitution that relates to appointing trustees, their role and how a trustee can be removed. The lease will need two to four trustees to sign in order to be valid. If the lease is registered with the Land Registry, the registration will need to be updated each time that there is a change of trustees.

In contrast, an association may be incorporated in some form or other such as a charitable incorporated organisation, a co-operative, or a community benefit society. If the group is incorporated, then the association itself is a legal entity that be a party to the lease agreement. This means that the association itself can be named on the agreement as opposed to naming trustees and then the association can have a couple of representatives to sign on behalf of the association.

It can be useful to encourage self-managing associations to consider incorporation if they have a reasonable number of members (the NAS suggest groups under 25 members are less suited for incorporation), because they will then fall under a regulator (Companies House, Financial Conduct Authority or the Charity Commission) that will act as another check and balance on how the association manages itself. This typically provides councils with more confidence in issuing a lease to an association for them to manage the allotment site.
Overall, the National Allotment Society would strongly recommend that councils should consider partial or full self-management if they are facing costs that is forcing them to consider increasing the rents. If managed correctly, both options can hugely benefit both the council and the association, as well as each of the individual plot holders.

The National Allotment Society (NAS)
Founded in the early 20th century, The National Allotment Society (NAS) is the leading representative body for UK allotment holders with over 125,000 members.

The NAS works with government, landlords and developers to provide, promote and preserve allotments – highlighting the social and environmental benefits of growing sites and preserving allotments for future generations.
Membership of the NAS comes with a host of benefits including legal advice, liability insurance, horticultural discounts, allotment expertise, advice and guidance.
In 2011, the NAS received the esteemed patronage of His Royal Highness King Charles III. His deep passion for gardening, commitment to environmental causes, and steadfast dedication to preserving the UK's rich traditions make him an invaluable advocate for the National Allotment Society’s mission.

Written by
Tyler Harris, legal adviser, National Allotment Society
As appeared in Clerks & Councils Direct, January 2024
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