Allotments Compensation Consultation: Analysis of responses

4. Compensation for deterioration of allotment

Background

Section 4 of the Allotments (Scotland) Act 1950 entitles a lessor, on termination of a tenancy, to recover from a tenant compensation in respect of any deterioration of the land caused by failure of a tenant to maintain it. This includes that the land is clean and in a good state of cultivation and fertility. The amount payable is the cost, at the date of the tenant's removing, of making good the deterioration.

The second set of questions in the consultation sought views on the amount and type of compensation payable to local authorities by tenants for deterioration of an allotment site.

Question 2a) Where there is deemed to be deterioration of an allotment site, what factors do you think should be used to determine the cost of remedying this?

Question 2b) Why?

Responses to Question 2a) and 2b) have been analysed together as the responses to both are inter-linked.

21 respondents addressed these questions.

The most common response (8 respondents, largely individuals) was to emphasise the importance of ascertaining reasons for deterioration. Respondents identified reasons out with a tenant's control which could lead to deterioration of plot, such as ill-health, caring responsibilities and adverse conditions such as influx of seeds from neighbouring land. A common view was that compensation should be considered only where the fault lies clearly with the plot-holder and is within their control.

Difficulties in deciding what constitutes "deterioration" were raised by four respondents (all from different sectors). They called for a clear definition rather than what one termed a subjective assessment. They requested clear guidance on this, particularly as they felt that all parties may not agree on what deterioration comprises. One respondent remarked:

"....some plot-holders have put in patios and barbeque areas. These could be seen as having caused deterioration because a new tenant would have to put in a whole lot of serious heavy work to turn the plot back to 100% cultivation. They on the other hand would be outraged at the mere idea that their delightful improvements would be seen as deterioration. So what is the definition of deterioration in the context? It is going to have to be thought about very hard".

Some respondents (largely Local Government) identified factors to be taken into account when determining the cost of taking remedial action, including:

• Cost of remediating the land to cultivatable condition (5 mentions).
• Cost of returning the land to the condition it was in at the start of the lease (4 mentions).

Two individual respondents questioned the practicalities of requiring tenants who have neglected their plots to pay compensation. They queried whether such tenants would be able to pay and suggested that the administration costs involved in attempting this could outweigh the size of compensation itself.

Question 2c Under what circumstances do you think a tenant should not be held responsible for the deterioration of an allotment site?

21 respondents addressed this question.

12 respondents identified ill health (physical or mental) as a circumstance in which a tenant should not be held responsible for the deterioration of their plot; eight respondents considered responsibility should not fall to tenants if their plot has been subjected to adverse impacts beyond their control. Flooding, vandalism, arson, soil contamination by previous tenants, and invasion of non-native species such as Japanese knotweed were given as examples of these adverse impacts.

Other recommendations made for circumstances in which a tenant should not be held responsible for the deterioration of an allotment site were:

• Disability of tenant.
• Change in circumstances, such as sudden unemployment.
• Work commitments.
• Death.
• Where the deterioration is clearly only short-term.
• If the deterioration relates to a boundary area with the boundary disputed and not yet resolved.
• If expectations were not made clear at the start and warnings have not been given.
• Where the plot is merely overgrown.
• If the plot was like that when the tenant took over the lease.

Question 2d) In your opinion, within what timeframe should compensation for deterioration be paid by a tenant?

15 respondents provided a proposed timeframe or relevant comments relating to this question, with varying opinions on the length of time. On the whole, responses ranged from immediately on the contract ending up until two years. The most common response (cited by four respondents) was three months.

Three Local Government respondents recommended that the timeframe should be in line with existing relevant legislation and regulations on compensation, fines and debts due.

Summary of key points

A common view was that compensation by tenants to local authorities for deterioration of plot should be considered only where the fault for deterioration lies clearly with the plot-holder and is within their control. Clarity was requested on the definition of "deterioration" in this context.

The main factors recommended for taking into account to determine the cost of taking remedial action were the costs of remediating the land to cultivatable condition; and the cost of returning the land to the condition it was in at the start of the lease.

Respondents' views on the timeframe for compensation to be paid by a tenant ranged largely from 30 days to 3 months.