Councils STATUTORY OBLIGATION To Provide Allotments

Having just acquired an allotment you get to know new things that you never knew before, like … comfrey has more nutritional qualities than horse manure and compost (see this excellent page for more info: www.allotment.org.uk/vegetable/comfrey/index.php ), … digging a 4’x9′ area of wet clay takes a long time and really makes your back ache … alot!, … and (the real point of this post) …

THE COUNCIL HAVE A “STATUTORY OBLIGATION/DUTY” (and therefore MANDATORY!!!) TO PROVIDE LAND TO BE USED AS ALLOTMENTS, WHEN SIX (OR MORE) COUNCIL TAX PAYERS MAKE A REQUEST AND, TO ACQUIRE LAND FOR THAT PURPOSE.

Here’s the relevant parts of the Small Holdings and Allotments Act 1908 (c.36):

Part II

Allotments

Provision of Allotments

23 – Duty of certain councils to provide allotments

(1) If the council of any borough, urban district, or parish are of opinion that there is a demand for allotments . . . F1 in the borough, urban district, or parish, . . . F1 the council shall provide a sufficient number of allotments, and shall let such allotments to persons . . . F1 resident in the borough, district, or parish, and desiring to take the same.

(2) On a representation in writing to the council of any borough, urban district, or parish, by any six registered parliamentary electors or [F2 persons who are liable to pay an amount in respect of council tax] resident in the borough, urban district, or parish, that the circumstances of the borough, urban district, or parish are such that it is the duty of the council to take proceedings under this Part of this Act therein, the council shall take such representation into consideration.

Powers of Councils in relation to the provision of Allotments

25 – Acquisition of land for purpose of Act

(1) The Council of a borough, urban district, or parish may, for the purpose of providing allotments, by agreement purchase or take on lease land, whether situate within or without their borough, district, or parish [F1 or may purchase such land compulsorily in accordance with the provisions of this Act and of the [F2 Acquisition of Land Act 1981],in that behalf].

Legislation On Allotments (including links)

Small Holdings and Allotments Act 1908
Consolidated all previous legislation and laid down basis for all subsequent legislation. Placed duty on local authorities to provide sufficient allotments, according to demand. Also makes provision for local authorities to purchase compulsorily land to provide allotments. Established the framework for the modern allotments system.

Section 23 – refers to an evidenced demand for allotments, which activates the mandatory obligation of provision and letting, on a local authority.
Section 25 – powers of compulsory acquisition of land for allotments on a local authority.
Section 27 – provides for letting to a co-operative. Moreover: where land cannot be let as allotments, it can be let for any other purpose; provided that it can be brought back into allotment use on 12 months’ notice.
Section 30 – where a local authority discovers that a tenant lives more than one mile outside the area for which the allotments are provided; the local authority can serve notice; and one month after any such notice the tenancy determines automatically, by effluxion of time.
Section 32 – proceeds of sale of allotment land to be used to acquire, adapt and improve other land for allotments.
Section 39 (2) and (7) – (read in conjunction with Section 25) provides for compulsory hiring of land for allotments.

Land Settlement Facilities Act 1919
This Act was mainly to assist returning servicemen and opened up allotments to all, not just ‘the labouring population’. Made metropolitan borough councils allotment authorities for the first time.

Allotments Act 1922
This Act was established to provide allotment tenants with some security of tenure. It also provided tenants with greater compensation at the termination of their tenancy and limited the size of an allotment to one-quarter of an acre, specifying that it should be used mostly for growing fruit and vegetables.

Section 1 – statutory notice of termination and of re-entry (read in conjunction with Section 1/1950).
Section 2 – (NB: sub-section (10) repealed: Statute Law (Repeals) Act 1. Compensation, on termination or re- entry, for growing crops and manure.
Section 22 – (1) defines allotments and allotment gardening.(4) where land is gardened as an allotment, it is deemed to have been let as allotment land, unless there is cogent evidence to the contrary.Allotments Act 1925
Required local authorities to recognise the need for allotments in any town planning development.
Established ‘statutory’ allotments which a local authority could not sell or convert to other purposes without Ministerial consent. This Act was intended to facilitate the acquisition and maintenance of allotments, and to make further provision for the security of tenure for tenants.

Section 8 – defines statutory allotment land, and states the mandatory procedure for disposal of statutory allotment land to other purposes (read in conjunction with Annex 3 to PPG 17)

Allotments Act 1950
This included:

  • amendment of the provisions relating to rents that may be charged for allotments;
  • extension of period of notice to quit to 12 months for allotment gardens;
  • compensation payable to plot holder at whatever season of the year a tenancy terminates;
  • making plot holders who have allowed their plot to deteriorate through neglect liable to pay compensation on quitting; and
  • allowance of certain forms of livestock (hens and rabbits) to be kept although this can be, in some cases, restricted by local by-laws.

Section 1 – amends Section 1/1922.
Section 3 – additional compensation for disturbance on termination or re-entry.
Section 9 – amends 22 (1)/1922 to a maximum provision of 20 poles, where the population of the area for which allotments are provided is more than 10,000.
Section 10 – allotment rents.
Section 12 – right to keep and house hens and/or rabbits.

Other legislation

The Local Government Act 1972 amended the allotments legislation in a number of matters of detail, for example, removing the requirement upon local authorities to establish allotments committees (contained in Section 12 of the Allotments Act 1925). Other Acts which have impacted upon allotments include the Town and Country Planning Act 1990, the Local Government Planning and Land Act 1980 and the Acquisition of Land Act 1981.

***


The National Society of Allotment and Leisure Gardeners have produced an excellent document explaining which legislation governs all things ‘allotment’. It’s entitled “Allotments – The Basics” and I will, for your convenience, reproduce it below (you can also download the pdf by clicking the above link!).


Allotments:—The Basics

(C) NSALG/Bryn Pugh—September 2008

National Society of Allotment and Leisure Gardeners

Provided that land intended for allotments was previously agricultural land, planning permission is not required for allotments. The authority for this statement derives from Section 55 subsection (2) paragraph (e) and section 336 Town and Country Planning Act 1990.

s.55 (2) (e):

The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land . . . the use of any land for the purposes of agriculture . . . and the use . . . of any building occupied together with land so used.

s. 336:

‘agriculture’ includes horticulture, fruit growing, seed growing . . . the . . . keeping of live stock . . .

Pursuant to the provisions of section 23 subsection (1) Small Holdings and Allotments Act 1908, municipal authority is under two Statutory and hence mandatory obligations as regards allotments:

to provide a sufficient number of allotments; and

to let these to folk who wish to take them.

“Sufficient”, in this context, has yet to be defined by a Court of Competent Jurisdiction. In strict Legal theory it is at least arguable that if there be one person on a waiting list for an allotment, the municipal authority is in breach of the Statutory duty imposed by s.23 (1).

The provisions of s. 23 (1) become engaged where, pursuant to the provisions of section 23 subsection (2) Small Holdings and Allotments Act 1908, six Parliamentary electors make written representations to the municipal authority, expressing a demand for allotments. The authority must then make shift to provide a sufficient number, and let these in accordance with s.23 (1).

The obligations in s.23 (1) are absolute; they admit of no defence, argument or challenge. Section 25 Small Holdings and Allotments Act 1908 confers powers of compulsory acquisition of land for allotments on municipal authorities, and land so acquired can be within or without (say) the parish boundaries. Compulsory purchase is, of course, an option, but not one favoured by NSALG, which prefers that the compulsory hiring, provided for by section 39 subsection (2) Small Holdings and Allotments Act 1908 be resorted to.

The municipal authority will make application to the appropriate Government Department for consent to make the compulsory hiring.

Currently, this is the Department of Communities and Local Government (DCLG), and application is made to the Secretary of State.

Land acquired by a municipal authority for allotments, or specifically appropriated to allotments user by the authority, accedes to the status of Statutory allotments land. Where it is proposed to dispose of Statutory allotments land to a purpose other than allotment user, the consent of the Secretary of State, DCLG, is required, pursuant to the provisions of section 8 Allotments Act 1925. In considering whether to grant or to withhold consent to disposal, the Secretary of State is required to take into account at least five rigorous criteria:

  • the allotment(s) in question is/are not necessary and is/are surplus to requirement; – adequate provision will be made for plot holders displaced by any such disposal, unless any such provision is not necessary or is not reasonably practicable;
  • the number of people on the waiting list has been effectively taken into account; – the municipal authority has actively promoted and actively advertised the availability of allotment sites; and the municipal authority has consulted NSALG.

It is suggested that should the first criterion fall the rest become otiose.

Once a municipal authority has ‘earmarked’ land for allotments, the site should be marked out. The standard allotment plot in England and Wales is the ’10 pole plot’, which measure equates to 300 square yards, or 250 square metres, or one sixteenth of an acre. The plot is usually, but need not invariably be, rectilinear in shape. The only mention of area is to be found in section 22 subsection (1) Allotments Act 1922, and refers to

. . . an allotment not exceeding forty poles in extent . . .

This might be construed as entitling any plot holder to four standard (10 pole) plots. However, the 10 pole plot, properly husbanded, should feed a family of four for a twelvemonth. It is thought that the optimum provision should be fifteen 10 pole plots to the acre, which should allow for haulways.

To return to the provisions of section 23 subsection (1) Small Holdings and Allotments Act 1908: this provides that a municipal authority shall provide earth, for cultivation. (In the opinion and experience of NSALG, many authorities, having provided this, consider that they have done all that is required of them.)

The average rent for the 10 pole plot in England & Wales is £25 per year, which is thought to be a derisory amount, in the 21st century. Allotment rents are governed by the provisions of section 10 Allotments Act 1950, which speaks of allotment rents being that which

. . . a tenant may reasonably expect to pay . . .

This is invariably objective to the allotment site rather than subjective to the tenant, and there is provision in s.10 for a lesser rent to be charged where circumstances might warrant this. However, the charging of any such lesser rent is in the discretion of the municipal authority.

The point here, arrived at by a long-winded route, is that a municipal authority is under no mandatory obligation to provide water, or fencing, or pathways, or anything over and above the bare earth for cultivation. Where water, etc., is provided, a tenant may expect to pay a realistic rent.

Quite frequently NSALG is asked about bees being kept on an allotment site. Section 61 Small Holdings and Allotments Act 1908 can be construed as saying that it is prima facie lawful for bees to be kept. However, a local authority can make rules governing the conditions on which plots will be let – section 28 Small Holdings and Allotments Act 1908 – , and this might include a prohibition on bees.

Please see our leaflet“”Bees on an Allotment Site””- under ‘Useful Information’ on the website.

Sometimes confusion arises about the keeping of live stock on an allotment plot. Generally speaking, any creature can be kept with the express permission of the Landlord Paramount (the municipal authority). Pursuant to the provisions of section 12 Allotments Act 1950, domestic chickens (but not cockerels), and/or rabbits, can be kept and housed on an allotment plot as of right. This means that the consent of the Landlord Paramount is not required and need not be sought. Any attempt to impose conditions or a prohibition on the keeping of hens and/or rabbits is ineffective.

That said: NSALG thinks that it is only courteous for a plot holder:

  • to inform the municipal authority of an intention to keep and house domestic chickens and/or rabbits
  • to inform the authority of the number of creatures it is intended to keep; and
  • to supply a contact telephone number in case of any problem with creatures.

Domestic chickens and/or rabbits cannot be kept so as to cause nuisance, or threat to health. Most allotmentiers who keep chickens keep them primarily as pets, any eggs being a welcome bonus. Please see our leaflet ‘Hens and Rabbits on Allotment Plots’ under ‘Useful Information’ on the website.

Any allotments tenancy is terminable in one of two ways. The most common method is by reference to the tenancy agreement document. Where a plot holder is alleged to be in breach of a clause, or of clauses, in the agreement then provisions of section 146 Law of Property Act 1925 are engaged. This provides that where it is proposed to terminate a tenancy by reference to the agreement, the tenant allegedly in breach must be given reasonable opportunity to rectify the alleged breach or breaches. What is reasonable is a question of fact in every case.

The second method is the Statutory termination, section 1 subsection (1) paragraph (a) Allotments Act 1922 as amended section 1 Allotments Act 1950. This gives the plot holder 12 months notice of termination. It follows that the maximum security any allotment gardener can enjoy is 12 months. However, this Statutory notice cannot be served so as to terminate later than 6th April in any given year; nor earlier than 29th September in any given year. NSALG uses the rough guide ‘’Lady Day to Michaelmas’.

***


In these times of inflated food prices it makes sense to take advantage of YOUR STATUTORY RIGHT to have a bit of land to “grow yer own” … what are you waiting for?

Councils have a statutory duty, and as I stated earlier, a MANDATORY duty, to provide allotments in the EXACT the same way that we have a statutory duty (and sadly, also a mandatory duty) to pay council tax!!! … see where this could go should they not play fair?

<H3>Allotments:—The Basics</H3>
(C) NSALG/Bryn Pugh—September 2008

<strong>National Society of Allotment and Leisure Gardeners</strong>

Provided that land intended for allotments was previously agricultural land, planning permission is not required for allotments. The authority for this statement derives from <strong>Section 55 subsection (2) paragraph (e) and section 336 Town and Country Planning Act 1990.</strong>

<strong>s.55 (2) (e):</strong>
The following operations or uses of land shall not be taken for the purposes of this Act to involver development of the land . . . the use of any land for the purposes of agriculture . . . and the use . . . of any building occupied together with land so used.

<strong>s. 336:</strong>
‘agriculture’’ includes horticulture, fruit growing, seed growing . . . the . . . keeping of live stock . . .

Pursuant to the provisions of <strong>section 23 subsection (1) Small Holdings and Allotments Act 1908,</strong> municipal authority is under two Statutory and hence mandatory obligations as regards allotments:

to provide a sufficient number of allotments; and

to let these to folk who wish to take them.

“Sufficient”, in this context, has yet to be defined by a Court of Competent Jurisdiction. In strict Legal theory it is at least arguable that if there be one person on a waiting list for an allotment, the municipal authority is in breach of the Statutory duty imposed by <strong>s.23 (1).</strong>

The provisions of <strong>s. 23 (1)</strong> become engaged where, pursuant to the provisions of section 23 subsection (2) Small Holdings and Allotments Act 1908, six Parliamentary electors make written representations to the municipal authority, expressing a demand for allotments. The authority must then make shift to provide a sufficient number, and let these in accordance with <strong>s.23 (1)</strong>.

The obligations in <strong>s.23 (1)</strong> are absolute; they admit of no defence, argument or challenge. <strong>Section 25 Small Holdings and Allotments Act 1908</strong> confers powers of compulsory acquisition of land for allotments on municipal authorities, and land so acquired can be within or without (say) the parish boundaries. Compulsory purchase is, of course, an option, but not one favoured by NSALG, which prefers that the compulsory hiring, provided for by <strong>section 39 subsection (2) Small Holdings and Allotments Act 1908</strong> be resorted to.

The municipal authority will make application to the appropriate Government Department for consent to make the compulsory hiring.

Currently, this is the Department of Communities and Local Government (DCLG), and application is made to the Secretary of State.

Land acquired by a municipal authority for allotments, or specifically appropriated to allotments user by the authority, accedes to the status of Statutory allotments land. Where it is proposed to dispose of Statutory allotments land to a purpose other than allotment user, the consent of the Secretary of State, DCLG, is required, pursuant to the provisions of <strong>section 8 Allotments Act 1925</strong>. In considering whether to grant or to withhold consent to disposal, the Secretary of State is required to take into account at least five rigorous criteria:

the allotment(s) in question is/are not necessary and is/are surplus to requirement; – adequate provision will be made for plot holders displaced by any such disposal, unless any such provision is not necessary or is not reasonably practicable;

the number of people on the waiting list has been effectively taken into account; – the municipal authority has actively promoted and actively advertised the availability of allotment sites; and the municipal authority has consulted NSALG.

It is suggested that should the first criterion fall the rest become otiose.

Once a municipal authority has ‘earmarked’ land for allotments, the site should be marked out. The standard allotment plot in England and Wales is the <strong>’10 pole plot'</strong>, which measure equates to 300 square yards, or 250 square metres, or one sixteenth of an acre. The plot is usually, but need not invariably be, rectilinear in shape. The only mention of area is to be found in <strong>section 22 subsection (1) Allotments Act 1922</strong>, and refers to

“. . . an allotment not exceeding forty poles in extent . . .”.

This might be construed as entitling any plot holder to four standard (10 pole) plots. However, the 10 pole plot, properly husbanded, should feed a family of four for a twelvemonth. It is thought that the optimum provision should be fifteen 10 pole plots to the acre, which should allow for haulways.

To return to the provisions of <strong>section 23 subsection (1) Small Holdings and Allotments Act 1908</strong>: this provides that a municipal authority shall provide earth, for cultivation. (In the opinion and experience of NSALG, many authorities, having provided this, consider that they have done all that is required of them.)

The average rent for the 10 pole plot in England & Wales is <strong>£25 per year</strong>, which is thought to be a derisory amount, in the 21st century. Allotment rents are governed by the provisions of <strong>section 10 Allotments Act 1950</strong>, which speaks of allotment rents being that which

“. . . a tenant may reasonably expect to pay . . .”.

This is invariably objective to the allotment site rather than subjective to the tenant, and there is provision in <strong>s.10</strong> for a lesser rent to be charged where circumstances might warrant this. However, the charging of any such lesser rent is in the discretion of the municipal authority.

The point here, arrived at by a long-winded route, is that a municipal authority is under no mandatory obligation to provide water, or fencing, or pathways, or anything over and above the bare earth for cultivation. Where water, etc., is provided, a tenant may expect to pay a realistic rent.

Quite frequently NSALG is asked about bees being kept on an allotment site. <strong>Section 61 Small Holdings and Allotments Act 1908</strong> can be construed as saying that it is <em>prima facie</em> lawful for bees to be kept. However, a local authority can make rules governing the conditions on which plots will be let – <strong>section 28 Small Holdings and Allotments Act 1908</strong> – , and this might include a prohibition on bees.

Please see our leaflet“”Bees on an Allotment Site””- under ‘Useful Information’ on the website.

Sometimes confusion arises about the keeping of live stock on an allotment plot. Generally speaking, any creature can be kept with the express permission of the Landlord Paramount (the municipal authority). Pursuant to the provisions of <strong>section 12 Allotments Act 1950</strong>, domestic chickens (but not cockerels), and/or rabbits, can be kept and housed on an allotment plot <strong>as of right</strong>. This means that the consent of the Landlord Paramount is not required and need not be sought. Any attempt to impose conditions or a prohibition on the keeping of hens and/or rabbits is ineffective.

That said: NSALG thinks that it is only courteous for a plot holder

to inform the municipal authority of an intention to keep and house domestic chickens and/or rabbits

to inform the authority of the number of creatures it is intended to keep; and

to supply a contact telephone number in case of any problem with creatures.

Domestic chickens and/or rabbits cannot be kept so as to cause nuisance, or threat to health. Most allotmentiers who keep chickens keep them primarily as pets, any eggs being a welcome bonus. Please see our leaflet ‘Hens and Rabbits on Allotment Plots’ under ‘Useful Information’ on the website.

Any allotments tenancy is terminable in one of two ways. The most common method is by reference to the tenancy agreement document. Where a plot holder is alleged to be in breach of a clause, or of clauses, in the agreement then provisions of <strong>section 146 Law of Property Act 1925</strong> are engaged. This provides that where it is proposed to terminate a tenancy by reference to the agreement, the tenant allegedly in breach must be given reasonable opportunity to rectify the alleged breach or breaches. What is reasonable is a question of fact in every case.

The second method is the Statutory termination, <strong>section 1 subsection (1) paragraph (a) Allotments Act 1922</strong> as amended <strong>section 1 Allotments Act 1950</strong>. This gives the plot holder 12 months notice of termination. It follows that the maximum security any allotment gardener can enjoy is 12 months. However, this Statutory notice cannot be served so as to terminate later than 6th April in any given year; nor earlier than 29th September in any given year. NSALG uses the rough guide ‘’Lady Day to Michaelmas’.

3 thoughts on “Councils STATUTORY OBLIGATION To Provide Allotments

  1. I have been pushing Rutland CC for an allotment. Their latest manouver is to cite the Local Govt Act which says that the statutory duty to supply allotments is passed to a Parish Council or where the population is less than 200 people “it will be the duty of the Parish Meeting to supply allotments” So what’s the chances that less than 200 rate payers can raise the tax to buy the 12 sites already needede?
    Anybody out there can blow this one out of the water or have the Council got away with it?

  2. We are a small allotments’ association in Oxford belonging to the Parish Council. Could anyone tell us weather the Parish Council has a duty to provide at least some security for our site? Thank you.

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