Consultation on Allotments Compensation: Secondary Legislation under the Community Empowerment (Scotland) Act 2015: Analysis of Responses - Reserach Findings

Consultation on Allotments Compensation: Secondary Legislation under the Community Empowerment (Scotland) Act 2015: Analysis of Responses

The Scottish Government considers that growing your own food, on an allotment or through other means, has the potential to contribute to improving our environment, our health and well-being, as well as offering a means to gain access to affordable, healthy and sustainable food. The legislative framework for allotments is complex and dated. Part 9 of the Community Empowerment (Scotland) Act 2015 relates to allotments but requires secondary legislation to be made before relevant provisions can be brought into force. The Scottish Government published a consultation paper on 20 August 2015 to seek views on the secondary legislation required with responses invited by 16 October 2015. The document requested views on three areas: compensation for disturbance; compensation for deterioration of allotment; and compensation for loss of crops. 23 responses to the consultation were received.

Main findings

• In relation to establishing compensation for disturbance, the main factors which respondents considered should be taken into account over and above rent were loss of enhancements made by the tenant to the plot and recompense for amenities left behind, or the cost of relocating these where this is possible.
• There were mixed views on the timeframe for payment of compensation for disturbance, with recommendations ranging from payment before lease ends to payment within one year of the termination of lease.
• 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. Deterioration of plots for reasons such as ill-health of tenant or adverse conditions were perceived to be outwith the plot-holders' control.
• Respondents' views on the timeframe for compensation to be paid by a tenant ranged largely from 30 days to three months.
• An overarching theme was that establishing a monetary value of compensation payable to tenants if the tenancy is terminated by the lessor appears incongruous given that finance is only one aspect of the investment put into their plot by allotment holders. A recurring view was that rather than focusing entirely on monetary compensation, other forms of recompense should be considered, such as support in moving crops and structures to a new site.
• Views on the timeframe for compensation to be paid to a tenant ranged largely from six weeks to one year.

Background

In 2009 the Scottish Government published its first "National Food and Drink Policy - Recipe for Success"^[1]. This policy made a clear commitment to support allotments and community growing spaces. The Grow Your Own Working Group was set up in 2009 and reported in 2011, one of its recommendations being to amend the legislation governing allotments, and in particular to review the duties placed on local authorities.

The legislative framework on allotments is complex and dates from the Allotments (Scotland) Act 1892, as amended by the Land Settlement (Scotland) Act 1919 and the Allotments (Scotland) Acts of 1922 and 1950.

In its Manifesto of 2011 the Scottish National Party (SNP), made a commitment to update the legislation relating to allotments. The Scottish Government undertook a number of consultations on the legislation governing allotments^[2]. The outcome of these consultations informed the development of the Community Empowerment (Scotland) Act 2015 (the 2015 Act).

Simultaneous to these developments, the next phase of Scotland's "National Food and Drink Policy: Becoming a Good Food Nation" was launched^[3]. The aspiration of this policy is for Scotland to become a country where people from every walk of life take pride and pleasure in, and benefit from, the food they buy, serve, and eat.

The Scottish Government considers that growing your own food, on an allotment or through other means, has the potential to contribute to improving our environment, our health and well-being, as well as offering a means to gain access to affordable, healthy and sustainable food.

The 2015 Act brought forward a number of provisions that require secondary legislation to be made before Part 9 of the Act relating to allotments can be brought into force. The secondary legislation concerns provisions for or in connection with:

1. Compensation payable to tenants of allotments for disturbance on termination of the lease.
2. Compensation payable by tenants to landlords for the deterioration of allotments.
3. Compensation payable to tenants of allotments for loss of crops where the allotment is resumed by the local authority.

The Scottish Government published a consultation paper to seek views on these issues on 20 August 2015^[4] with written responses invited by 16 October 2015. Three stakeholder engagement events were also organised in Edinburgh, Glasgow and Inverness.

Overview of respondents

The Scottish Government received 23 written responses to the consultation. 57% of responses were from organisations; 43% were from individual respondents. The largest category of respondents was Local Government bodies comprising 30% of all respondents. Although the number of responses was relatively low, some represented the views of wider groups and organisations. For example, one of the representative bodies submitted their response on behalf of 157 people, including 52 young people.

It should be noted, that the opinions presented below are those of the 23 respondents to this consultation and do not necessarily represent the views of the wider population.

Compensation for disturbance

Section 3 of the Allotments (Scotland) Act 1950 provides that where a tenancy for the whole or part of an allotment garden is terminated, in certain circumstances the tenant is entitled to compensation from the lessor for the disturbance caused.

The amount of compensation recoverable is dependent on whether the tenancy for the whole or part of the allotment garden is terminated. Should the tenancy for the whole land be terminated, the level of compensation is equal to one year's rent at the rate at which the rent was payable. Where the tenancy for a proportion of the land is terminated, the compensation payable is the application of that proportion to the year's rent (at the rate at which the rent was payable).

All but one of the respondents who addressed the issue considered that factors other than rent should be included in determining the amount of compensation payable to tenants for disturbance.

The most common factors identified over and above rent were loss of enhancements made by the tenant to the plot and recompense for amenities left behind, or the cost of relocating these where this is possible.

Other common views were that the level of compensation payable should reflect the value of crops and plants; and that the length of tenure should be taken into account in determining the amount of compensation to be paid.

The most common recommendation for determining the value of compensation was the cost of replacing old for new, at least where structures were concerned.

There were mixed views on the timeframe for payment of compensation, with recommendations ranging from payment before lease ends to payment within one year of the termination of lease.

A recurring view was that where a tenant has neglected a plot to the extent that it is in an extreme state of disrepair and/or where the tenancy has been breached, then local authorities should not be liable to pay compensation for disturbance.

Compensation for deterioration of allotment

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.

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. Deterioration of plots for reasons such as ill-health of tenant or an adverse conditions were perceived as outwith the plot-holders' control.

Requests were made for the definition of "deterioration" to be clarified.

The main factors which respondents recommended be taken into account when determining the cost of taking remedial action were: the costs of remediating the land to cultivatable condition; and/or 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 three months.

Compensation for loss of crops

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.

An overarching theme was that establishing a monetary value of compensation payable to tenants if the tenancy is terminated by the lessor appears incongruous given that finance is only one aspect of the investment put into their plot by allotment holders.

It was felt that compensation should encompass what was perceived to be the broader investment of time and effort made by tenants, and also the loss of the positive impacts which tending the plot has had on their wellbeing.

A recurring view was that rather than focusing entirely on monetary compensation, other forms of recompense should be considered, such as support in moving crops and structures to a new site.

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. How to access background or source data

The data collected for this social research publication:

☐ are available in more detail through Scottish Neighbourhood Statistics

X are available via an alternative route

☐ may be made available on request, subject to consideration of legal and ethical factors. Please contact <email address> for further information.

☐ cannot be made available by Scottish Government for further analysis as Scottish Government is not the data controller.