Raising allotment charges

Money iStock 000008683901XSmall 146x219A city council recently lost a judicial review in the High Court of its decision to double the rents charged to a group of allotment holders. Christopher Baker examines why.

In R (Wood and Turley) v Leeds City Council [2014] EWHC 2598 (Admin) (HHJ Behrens) the Administrative Court has held that a local authority’s decision to increase allotment rents had unlawfully failed to have regard to the statutory provisions under s10(1) Allotments Act 1950; but the Court declined to follow previous case law in Harwood v Borough of Reigate and Banstead (1982) P&CR 336, Ch D and held that the authority were not required to subsidise the provision of allotments.

Background

The Claimants were holders of allotments and members of an allotment gardeners’ federation (“the Federation”). The Authority were responsible for 97 allotment sites, comprising nearly 4,000 plots each measuring 250 sq metres. The Authority’s Parks and Countryside service managed 37 of the sites; the remainder were managed by unincorporated allotment associations holding leases of each respective site and sub-letting plots to allotment-holders. Under the leases, the association retained two-thirds of the rents for the individual plots, paying the remaining third to the Authority. As at September 2013, the rent for a full–size plot was £37-00 pa; there was a concessionary rent of £18-50 pa for pensioners and others; half-size plots were also available at half the respective amounts. There was a waiting list of about 1,500.

In 2012/13, the Authority’s budget for the Parks and Countryside service was reduced by £2m, with a further reduction of £0.6m in 2013/2014, in consequence of savings required by Central Government public spending constraints. The Authority accordingly formulated and consulted upon a number of options for addressing a deficit of about £132,000 pa in the cost of running the allotments. Two of the options were for significant increases in the amount of the allotment rents: (1) increases for all allotment-holders in proportion to their current rent, meaning a full rent of £103-07 pa for a full-sized plot; and (2) increases to the non-concessionary rents only, meaning a full rent of £123-43 pa for a full sized plot. Of those responding to the consultation, nearly 60% supported either option (1) or option (2).

Following the consultation, the Authority’s officers reformulated the proposals by reason particularly of concerns about affordability for some groups of allotment-holders and applicants so that, among other matters, additional savings were found in planned expenditure and the increases were spread over 3 years from October 2014. The new full rent for a full size plot would be £58-00 pa in 2014- 15 rising to £72-00 pa by 2016-17. In addition to concessionary rents, it was also proposed that a quarter-sized plot be introduced, the full rent for which would be £13-50 pa in 2014-15, with related concessionary rents in that year of £11- 60 pa for pensioners and £6-75 pa for others. In arriving at the figures, as later explained in evidence to the court, officers took legal advice (including as to s10 Allotments Act 1950, see below) and considered (a) allotment rents charged by other authorities and (b) charges for recreational activities in the Authority’s area, neither of which the officers considered to be comparable.

A report was prepared for the Authority’s Executive Board on 4 September 2013, explaining the background including the waiting list and popularity of allotment gardening, the costs and deficit, the response to consultation and issues of affordability. The report made no reference, however, to s10 Allotments Act 1950 or to the officers’ consideration of possible comparables. The Executive Board resolved to approve the proposed increases, as well as a proposal to terminate the leases to the associations in order that there could be re-negotiation of the proportion of the allotment rents retained by the associations and a reduction thereof to one-third by 2016-17.

The decision of the Executive Board was called in by members and further considered by the Authority’s Scrutiny Board on 25 September 2013. The Scrutiny Board received advice about s10 Allotments Act 1950 and considered representations, including from the relevant executive member and chief officer who stated that the increases were “proportionate and not unreasonable”. The Scrutiny Board resolved to release the decision for implementation.

On about 11 October 2013, the Authority served notice terminating the associations’ leases with effect from October 2014 and invited them to agree the proposed new leases.

In November 2013, the first claimant made detailed representations to the Authority under their complaints procedure, raising a number of reasons for challenging the increase in the rents but mentioning that s10 Allotments Act 1950 was a separate, legal issue. The Authority provided a lengthy response by letter in December 2013, rejecting the complaint but informing the first claimant that he could make a further complaint to the Local Government Ombudsman.

The claim was issued on 3 December 2013, challenging (only) the decision to increase the rents, alleging:

(a) misconstruction or misapplication of s10 Allotments Act 1950;

(b) failure to take into account a material consideration, ie evidence indicating the rent a tenant might reasonably be expected to pay as provided for under s10;

(c) taking account of an irrelevant consideration, ie the Authority’s own financial position; and,

(d) irrationality.

By the date of hearing, 7 of the associations had agreed new leases.

Law

Section 10 Allotments Act 1950 provides:

“Land let by a council under the Allotments Act 1908 to 1931 for use as an allotment shall be let at such rent as a tenant may reasonably be expected to pay for the land if let for such use on the terms (other than terms as to rent) on which it is in fact let: Provided that land may be let by a council as aforesaid to a person at a less rent if the council are satisfied that there exist special circumstances affecting that person which render it proper for them to let the land to him at a less rent.”

In Harwood v Borough of Reigate and Banstead (1982) P&CR 336, Ch D, it was held that an authority were obliged to treat the provision of allotments as a recreational activity and to subsidise their provision in the same manner as other recreational activities. In arriving at that conclusion, the court relied on s11(1) Allotments Act 1950, which had amended earlier provision contained in s16(1) Allotments Act 1922. The court on that occasion was apparently unaware, however, that the former had been repealed in 1971; the latter provision was itself subsequently repealed in 1990.

References below to statutory provisions are to those in the Allotments Act 1950.

Decision

Allowing the claim in part, the Court held:

(1) The general approach to the way in which s10 was intended to work was as set out in Harwood, ie: it was the authority, not the court or the tenant, who were required to determine the rent; the rent was not to be determined by agreement, although the authority should listen to representations made by interested parties; what had to be determined was the rent a notional tenant, rather than a particular tenant, might reasonably be expected to pay; the authority had to take into account all relevant circumstances in a broad, common-sense way, giving such weight as it thought right to the various factors in coming to a conclusion that it thought right and fair.

(2) The repeal of s11(1) materially affected the reasoning of the ultimate conclusion in Harwood; there was no obligation on the authority to subsidise allotment-holders.

(3) Section 10(1) did not prescribe any method for the determination of a rent that a tenant may reasonably be expected to pay; the court considered, however, it was difficult to see how that task could be approached without some sort of valuation exercise; the most usual way of doing this would be to look at the rents charged by other authorities which had been fixed under the same statutory formula; if for some reason that was of no assistance, it might be possible to get assistance from agricultural rents; while the cost of providing the service might be a relevant factor, it could not be the only factor.

(4) The decision of the Executive Board was flawed; s10 was a material consideration which was not drawn to the Board’s attention; the court could not accept the submission that the decision-making process was in substance an exercise in determining how much a notional tenant might reasonably be expected to pay and the decision of the Scrutiny Board did not validate the unlawful decision.

(5) The court was not satisfied there had been any lack of promptness or undue delay on the part of the Federation; and held that a complaint to the Ombudsman would not, in this case, provide a suitable alternative remedy for the Federation.

(6) No relief was granted in respect of the termination of the associations’ leases; but relief was granted in respect of the rent increases.

The council is seeking permission to appeal.

Christopher Baker is a barrister at Arden Chambers. He acted for Leeds City Council. Christopher can be reached on 020 7242 4244 or This email address is being protected from spambots. You need JavaScript enabled to view it..

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