Allotments Compensation Consultation: Analysis of responses

5. Compensation for loss of crops

Background

Section 2 of the Allotments (Scotland) Act 1922 states that compensation for loss of crops is payable if the tenancy is terminated by the lessor either between 1^st May and 1^st November or if the lessor resumes possession following the issuing of a three month notice to the tenancy. Compensation is payable for crops growing upon the land and manure applied in the ordinary course of the cultivation of an allotment garden. The amount of compensation is based on the value of the growing crops and manure to an incoming tenant.

Section 135 of the 2015 Act provides that where the whole or part of the allotment lease is terminated by way of resumption of the land by the local authority and the tenant loses crops due to the resumption, the local authority is liable to compensate the tenant for the loss of crops.

The last set of questions in the consultation sought views on the amount and type of compensation that will be payable to tenants for loss of crops.

Question 3a) What factors do you think should be included in determining the amount of compensation payable to tenants for loss of crops when the lease of the whole or part of an allotment site is resumed?

Question 3b) Why?

Responses to Question 3a) and 3b) have been analysed together as the responses to both are inter-linked.

21 respondents addressed these questions.

An overarching theme was that establishing a monetary value of compensation payable to tenants appears incongruous given that finance is only one aspect of the investment put into their plot by allotment holders. Several respondents emphasised the significant investment of time and effort made by tenants and their reasonable expectation that their reward will be forthcoming in produce, in addition to positive impacts on their wellbeing. The need to compensate for such broader investment and expectation was highlighted. One respondent commented:

"It is important to understand the gravity of closing an allotment site and be aware of the very real detrimental effects to plotholders and their families, both in terms of access to fresh and in many case, organic food as well as health and well-being".

A related theme was that rather than focus solely on monetary compensation, other forms of recompense should be considered, such as support in moving crops and structures to a new site; and purchase of new greenhouses and sheds for tenants affected.

Some respondents recommended approaches to determining monetary compensation value with six respondents advocating compensatory levels at the market value of the crop lost. Others recommended that compensation should relate to an entire season of crops, as crops such as brassicas, herbs and root crops grow out with the summer period.

One Local Government respondent argued that no compensation should be paid as it is too difficult and an administrative burden to try to value crops. Another (LG) considered that compensation should be paid only in cases of particularly high value crops and where there are cultivated bee hives (if these are to be considered a form of crop), as tenants will already have received compensation for disturbance of their plot.

Question 3c) How do you think the value of these different factors should be determined?

15 respondents addressed this question. Six respondents focused on establishing professional and/or systematic approaches to determining value these different factors in order to ensure consistency and standardisation. Three respondents recommended using the guide in "Peter's produce" accessed via the website www.sags.org.uk; one advocated using a qualified valuer; others supported the use of an existing or new formula to determine value.

Six respondents comprising allotment associations and individuals, considered that value should be based on the cost of plants, seeds and time and effort invested, with some recommending benchmarking against supermarket prices for equivalent produce.

Other responses included to determine the value based on the maturity of crops or based on the type and quality of crops.

Question 3d) In your opinion, within what timeframe should compensation for loss of crops be paid to a tenant?

17 respondents addressed this question. Respondents' views on the timeframe for compensation to be paid to a tenant for loss of crops ranged largely from six weeks to one year.

Question 3e) Can you think of any circumstances when a local authority should not be liable to pay compensation for loss of crops?

19 respondents addressed this question. Seven respondents (five of them individuals) considered that there are no circumstances in which a local authority should not be liable to pay compensation if the tenant is not at fault. Two Local Government respondents held a contrasting view that compensation should not be due unless, according to one, there are valued crops involved and beehives are disturbed.

Other respondents provided their view on circumstances under which liability to pay compensation for loss of crops should be waived, including:

• Cases where the tenant is at fault, for example, they have grown illegal substances and/or neglected their plot (6 mentions).
• Where the tenant was fully aware that the tenancy was on a short-term basis when they took over the plot (2 mentions).
• Where there has been deliberate contamination of site and/or arson (2 mentions).

Summary of key points

A common view was that compensation should reflect the broader investment of time and effort made by tenants in addition to monetary value of crops and structures.

Respondents' views on the timeframe for compensation to be paid to a tenant for loss of crops ranged largely from six weeks to one year.

Whereas some respondents considered there to be no circumstances in which a local authority should not be liable to pay compensation for loss of crops, others identified circumstances under which they felt this may not be appropriate, for example, if the tenant has grown illegal substances or neglected their plot.