6 January 2011
Aberdeen City Solicitor recently propounded the view that our plot rents were fair and fairly arrived at. Judge for yourselves from the following information.
Prior to 2002, the rent for a half sized Council owned plot in Aberdeen was £15. Rents for Aberdeen City Council Allotments were increased in 2002 to £28 for a full sized plot and £19.05 for a half sized plot. Even at that point in time Aberdeen City Council discriminated against tenants of half sized plots because these tenants were required to pay more than a pro rata proportion of the rent for a full sized plot. Bear in mind that the law (s10 Allotment(Scotland)Act 1950)states that Land let by a local authority under the Allotments (Scotland) Acts, 1892 to 1926, for use as an allotment shall be let at the fair rent for such use. There is no provision for tenants of smaller allotments to be charged at a higher rate and so the rent charged for a half sized plot should simply be half of the rent for a full sized plot.
Aberdeen’s allotment holders were not aware that rents were charged in this manner, until they received from an external source a copy of a consultation document relative to the City’s Allotments Policy Strategy in September 2008. Although that document was sent by Aberdeen Council to various external parties, Aberdeen’s allotment tenants were pointedly excluded because “That by putting the policy into the public domain would only serve to raise people’s expectations that their input would be taken into consideration”
Within that consultation document, Aberdeen’s Allotment holders in Bucksburn discovered that because of the Council’s need to raise funds due to its precarious financial position, plot rents had at the Council budget meeting in February 2008 been increased by an arbitrary 80%across the board with the rent for a full plot being set at £50 and the rent for a half plot set at £34.10 and that funding for facilities and services had been drastically cut.
The Unfair Terms in Consumer Contract Regulations 1999 deems such arbitrary increases to be automatically unfair and Guidance by the OFT on unfair terms in tenancy agreements indicates that unless increases are linked to such external factors as the RPI or evaluated by an objective person independent of the landlord they may be deemed to be unfair.
Bucksburn allotment holders were not aware of these regulations at that time, but, nonetheless they made representations that the new rents were unfair as tenants of half plots were being charged more than a pro rata proportion of the rent for a full sized plot.
It is clear that the 2008 rent increases were unfair :-
a. because tenants of plots of less than full size were discriminated against,
b. because arbitrary increases in rent were applied contrary to the provisions of The Unfair Terms in Consumer Contract Regulations 1999,
c. because the increases in charges to allotment holders were far greater than increases applied to users of other council owned leisure facilities, and
d. because Aberdeen City Council totally ignored the requirements of the Allotments(Scotland)Acts 1892 to 1950 in determining the rent for its allotments.
Aberdeen City Council did not reduce the rent set for half plots in February 2008 for half sized plots to address the complaints of Bucksburn allotment holders. Instead, amazingly the Council doubled the rent for a half sized plot to arrive at a new rent of £70 for full sized plots.
Again amazingly, in an Equality and Human Rights Impact assessment dated 12 November 2008, the following statement was included relative to the proposed rent increase of £20 for full sized plots. – “it is intended to redress the disadvantage faced by some allotment holders who are currently charged for water supply, whilst others are not.”
That assessment document also confirmed that at that time, 366 allotments were supplied with water, but only 130 of those were charged for their water supply.
Those that were charged for their water supply paid £1.05. The minimum necessary interference to achieve equality was to introduce the same £1.05 charge for those who had a water supply and did not pay for it. Instead, the Council had chosen to increase the rents for 214 tenants of full sized plots by £20, whether or not such allotments had water, to potentially raise £4280 when the total annual water bill was less than £1000 and asserted that this was the minimum necessary interference.
Bucksburn Allotment holders strongly feel that the £20 increase was designed to remove their legitimate complaint about the inequality in charging, that this action was both vindictive and discriminatory as after the increase, all allotment holders in the City pay for water whether or not they have an available water supply.
The matter was raised at meetings of the Council’s Policy and Strategy Committee and before full Council prior to the Council budget meeting in February 2009 at which time elected members considered a report(dated 5th February 2009) prepared by Council Officers in which they sought to try to justify the £20 increase for full plots to £70 and the increase of £0.90 for half sized plots to £35.
Once again amazingly, that report made it plain that the proposed increases were designed to contribute towards “ a further £10,000 for the Council”. Also, unbelievably, Council Officers sought to try to demonstrate that Allotments in Aberdeen were much larger, indeed that they wear nearing double the size than those in Edinburgh and Glasgow. These Officers even chose to misrepresent the size of the Aberdeen’s plots in the 5th February report as 300 squ metres despite the size of plots being shown in a document dated 8 October 2007 and titled “Allotments management Policy”Allotmentsmanagementpolicy-finalcommittereportv2 as 250squ metres. It has since been established that the Council Officers had no idea at all of the sizes of Aberdeen’s own allotments, never heed those in Edinburgh and Glasgow. Crucially, there was no reference in the report of 5th February to the allotments charges in Dundee where charges are calculated by the pole (approx 30.25 squ yards) and are substantially lower than those in Aberdeen. In any event, in a recently discovered English High Court case, it has been confirmed that it is not proper to make any comparisons with charges in other areas without full details of the services and facilities provided in those other areas. The elected members voted in favour of the increased rents despite the representations of the allotment holders.
It is clear that the 2009 rent increases were unfair :-
a. because tenants of plots with no water supply were discriminated against. They now pay the same rents as those with a water supply.
b. because arbitrary increases in rent were applied contrary to the provisions of The Unfair Terms in Consumer Contract Regulations 1999,
c. because the increases in charges to allotment holders were far greater than increases applied to users of other council owned leisure facilities,
d. because the Equality and Human Rights Impact assessment relating to the increases was not based on fact.
e. because the information provided to Elected Members of the Council on which they relied on in basing their decision to increase rent was incomplete, inaccurate, exaggerated, misleading and wrong
f. because Aberdeen City Council totally ignored the requirements of the Allotments(Scotland)Acts 1892 to 1950 in determining the rent for its allotments.
Despite all of the foregoing, Aberdeen City Solicitor asserts that the decision to approve the rent increases was fair and fairly arrived at.
Of course we shouldn’t forget, that in setting a rent, Aberdeen City Council has made a regulation,(Set is synonymous with regulate)and John Swinney, Scottish Finance Minister has said in reply to a parliamentary question that local authorities are not entitled to collect rent for allotments using regulations that have not been confirmed by the Scottish Ministers. Aberdeen City council has not had its rent regulation so confirmed.
Add your content here