Feb 172012

Voice has learned that Aberdeen’s allotment holders may well be close to resolving their long- running dispute with Aberdeen City Council. The swingeing increases imposed in the Council’s 2008 and 2009 budgets have added 152% to bills in a 12 month period for some gardeners. With thanks to Frank Taylor.

Readers may recall that Finance Minister John Swinney confirmed to local MSP Dr Nanette Milne that a local authority would not be entitled to collect rent under regulations which had not been formally confirmed by Scottish Ministers in terms of the Allotment (Scotland) Act 1892.
Regulations made under this provision have no legal effect without ministerial confirmation.

Aberdeen City Council maintained that legally it can to choose whether or not to make regulations for its allotments. Allotment holders do not dispute this, but when the Council claims it has chosen not to make regulations, allotment holders do dispute this.

The allotment holders feel that irrespective of what the Council says it has chosen to do, it has in fact made regulations, but by choosing not to have them confirmed by ministers, the Council has no legal right to enforce these.

The dispute is now at the Sheriff Court as the Council has raised proceedings against Frank Taylor, secretary of Bucksburn Allotments Association. Mr Taylor eventually lost patience with the Council, withheld the rent for his allotments and challenged the Council to raise proceedings against him for recovery of rent and possession to allow the Court to clarify the issues.

Mr taylor told Voice that he did not encourage the Council to raise proceedings against him ‘without a great deal of thought and soul-searching’. There are extremely serious consequences for him should the Court find against him. He may have to surrender possession of his allotments and be found liable for the Council’s costs as well as his own.

He is, however, extremely confident in the merits of his arguments.

The term ‘regulations’ is not defined in the allotments legislation and it is a well-established legal principle in such circumstances, that an undefined word shall be interpreted according to its normal and ordinary meaning.

‘Regulation’ is defined in the Oxford English Dictionary as ‘a rule or directive made and maintained by an authority’. Aberdeen City Council is a local authority.  So, has ACC made any rules for the management of its allotments?

Before being granted tenancy, Aberdeen allotment holders are required to indicate their acceptance of a list of conditions in the Council’s ‘Conditions of Let’ letter. Mr Taylor has provided us with a copy and points out that ‘rule’ is a synonym of ‘Condition’ in the Oxford Thesaurus of English.

That seems to put the issue beyond doubt, especially since the Council in its own Condition 9, refers to that condition as ‘a rule’.
To reinforce his views, Mr Taylor says it is evident that the conditions imposed upon him are used to

  1. Set the rent payable in terms of the contract and the date on which the initial rent is payable
  2. Make a direction as to when the rent shall be reviewed and the dates on which future rents shall be payable
  3. Govern the circumstances under which the landlord is entitled to resume possession
  4. Direct who shall be entitled to assess compensation to a tenant on outgo and restrict the right of any other person to input into that process
  5. Direct how the tenancy may be terminated by a tenant
  6. Restrict the entitlement of a tenant to transfer the tenancy
  7. Limit the use to which a tenant may put an allotment and restrict him/her from keeping livestock
  8. Regulate the dimensions and type of hut that a tenant may seek to erect and control where it may be situated
  9. Direct that a tenant may be removed if he does not achieve the required standard of husbandry.

The terms used – ‘manage’, ‘administer’, ‘set’, ‘govern’, ‘restrict’, ‘limit’, ‘direct’ and ‘control’ – are all synonyms of ‘regulate’. There is no doubt that every condition in the Conditions of Let letters regulates, or has the effect of regulating, matters pertaining to the management and administration of allotments owned and let by a local authority.

So has Aberdeen City Council made regulations for its allotments? Has the Council made a regulation by setting a rent? Will a Court disagree with Mr Taylor? He is confident of winning the case..

The Council’s Court Action has been founded on Conditions or an alleged breach thereof.  If the Court decides that these Conditions are Regulations, then the local authority’s Court Action will automatically fail.

Jan 072011

Aberdeen Forward…. Aberdeen Forward…. Aberdeen Forward…. Aberdeen Forward….

Ever wanted to grow your own vegetables? Local environmental charity, Aberdeen Forward, is launching a new course aimed at helping the would-be gardener to learn about growing vegetables in  a garden or allotment environment.

Participants on the course will get their own small allotment plot to practice their growing skills and take home the fruits of their labours.

They will be able to visit their plots throughout the season and tend to their plants whilst also benefiting from 17 support sessions across the season from February to December.

A spokesperson for Aberdeen Forward said:

“Many of us are getting more conscious of how important it is to eat fresh vegetables and the benefits of obtaining them locally, rather than eating produce with many fuel miles attached.  There is no better approach than growing them yourself, either in a vegetable plot at home or via an allotment garden.  This course will hopefully give new gardeners the experience and confidence to grow their own.”

The course is based near Peterculter, and commences on the 19th of February 2011.

Anyone interested in finding out more about the course can contact Aberdeen Forward on 01224 560360 / admin@abzforward.plus.com.

Nov 192010

With thanks to Frank Taylor.

An Aberdeen gardener has asked Voice to draw to the attention of all city allotment tenants, the following statement made by John Swinney, Scottish Finance Minister in reply to a parliamentary question:

“A local authority would not be entitled to collect rent under regulations that had not been formally confirmed by Scottish Ministers in terms of section 6(1) of the Allotment (Scotland) Act 1892. Regulations made under this provision have no legal effect without ministerial confirmation”.

The regulation for Allotment rents used by Aberdeen City has not received ministerial confirmation and so the City Council is therefore not entitled to collect rents for allotments.

Frank Taylor has personally withheld rent for his allotments in Bucksburn, and is urging all his fellow allotment holders to follow suit until the Council has had its allotments regulations confirmed as required by law.

Mr Taylor told Aberdeen Voice:

“We simply cannot allow ourselves to have savage rent increases illegally imposed on us again without being able to exercise our right to have an input into the process.  The law was put in place to protect allotment holders from possible excesses of local authorities.  Any local authority that increases allotment rents by 80% and then follows that with further increases of 72% within a twelve month period has acted to excess.”

For plot holders, one of the most annoying consequences of Aberdeen City Council refusing to accept that it needs to formalise its regulations, is that those who neglect their allotments – even to the stage of a state of total dereliction – cannot be legally evicted because any legal proceedings for recovery of possession of allotments must be founded upon a regulation made in pursuance of the Allotments Acts. As a result, our own plots end up affected by weed seed and by vermin.

By the same token, in the absence of formal regulations regarding rents, the Council cannot  successfully pursue anyone who refuses to pay rent for an allotment.

The Council cannot even start proceedings for recovery of unpaid rent without a regulation (also to have been formally confirmed by the Scottish Government) which determines the due date for payment – as a tenant must by that stage be at least 40 days in arrears before these proceedings begin.

Allotment holders should note that the Council proposes to recall their allotment leases and to issue new leases containing new rules(regulations).

The regulations contained in these leases will not have been confirmed by the Scottish Ministers and will be unenforceable until ministerial confirmation is obtained. Ministerial confirmation cannot be given without publication and full public consultation and no allotment tenant should accept these new leases until the full process required by law has been completed.