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This website was started after Aberdeen City Council increased its allotment rents in February 2008 by 80% across the board and attempted to conceal the increases from its allotment holders. Within twelve months there followed a further 72% increase for holders of full sized plots. Aberdeen Allotment holders were excluded from the consultation process in the course of preparation of the City's Allotments Strategy 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”
Yes, you did read that correctly.
We subsequently discovered that the Council had neglected to follow the proper legal process to give its new rent regulations legal effect and the long struggle had begun.
Chronologically, the most recent developments are at the top of this page so you need to read from the bottom of this page to begin at the start .
4 January 2011
Aberdeen Council proposes to withdraw our allotment leases and to impose new ones. No allotment holder should accept the new leases. The Council is not entitled to do this.
Nor should any allotment holder pay rent for their allotment(s). John Swinney, Scottish Finance Minister has said no Local Authority is entitled to collect rent for allotments using regulations that have not been confirmed by the Scottish Ministers. Aberdeen City Council has not had it's regulation for rent confirmed by the Scottish Ministers. The text of the question and the answer can be seen by clicking on this link parliamentary questions answered
3 February 2012
Happily, Aberdeen City Council have acknowledged that they will not evict me without a Court Decree .
As stated many times, the issue will undoubtedly be resolved on the question of whether the Council has made a regulation for rent. The Council says it doesn't have to make such a regulation. That is not in dispute. The Council however also says that it has chosen not to make a regulation for rent for its allotments which is an absolute nonsense.
The first question to be asked of courseis whether allotment rents in Aberdeen are regulated. That is undoubted. The Council ruled in February 2008 as part of the its Budget that the rent for a full plot be set at £50 and the rent for a half plot be set at £35, and in February 2009 the Council ruled as part of the Council's budget that the rent for a full sized plot be set at £70. i.e., the maximum rent for a full sized plot was thereafter limited to £70 and for a half plot £35.
Set, rule and limit are all synonyms of regulate.
Also in the Oxford English Dictionary, the word regulation is defined as "a rule or directive made and maintained by an authority"
It also should be born in mind that here we have an issue involving local government. A local authority makes the regulations that govern the way the assets belonging to that authority are managed.
The words govern and manage are also synonyms of the word regulate.
The question of whether or not a local authority has made regulation for the management of its allotments has immense importance because the legislation makes it clear that any regulation that has not been confirmed by theScottish Ministers after publication and inquiry(full public consultation) has no legal force. Any court proceedings to recover possession of an allotment from a tenant that has failed to pay rent or to secure payment of the outstanding rent must be founded on a regulation that has been confirmed by the Scottish Ministers.
Aberdeen City Council has not had its regulation for rent confirmed by the Scottish Ministers.
Also, the law is clear that a tenant must be at least 40 days in arrears with his rent before a local authority is empowered to institute Court Proceedings. Aberdeen City Council has not made a Regulation that determines the due date for payment and had that regulation confirmed by the Scottish ministers and the provisions in the Missives of let are unlawful in that they call for payment of the whole rent in advance. The law is clear in that a local authority may not require payment of more than 25% of the rent in advance if the total rent is more than £1.
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Readers from south of theborder should note that they have separate and quite different legislation.
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24 January 2012
copy email sent today to Chief Executive of Aberdeen City Council
Dear Mrs Watts,
I refer to previous correspondence in connection with this matter and in particular to the notice given to vacate my allotments which expires on 31st January 2012.
It has been confirmed to me that the Council's right to recover possession of my allotments is not complicated by the allotments legislation, the legal procedures being governed by section 8(1)Allotments(Scotland)Act1892 which reads "The rent for an allotment let in pursuance of this Act, and the possession of such allotment in the case of any warning to remove, or failure to deliver up possession of the same as required by law, may be recovered by the local authority as landlords, in the like manner as in any other case of landlord and tenant."
I am also informed :-
1. that in the event that I refuse to surrender possession of my allotments, the Council will require to apply to the Court for an order of Ejection before being able to recover possession and
2. that, as a tenant, I am protected by law against harassment by the Council as a landlord or measures to evict me that have not been sanctioned by the courts.
For the avoidance of doubt, I shall not be vacating my allotments and the Council may therefore proceed to Court Action if that remains how it intends to proceed. You should note that all fences, gates, padlocks and chains used to secure my allotments belong exclusively to me and that any attempt to interfere with my property, in or surrounding my allotments, will be brought to the attention of the Police Authorities with a request that criminal charges be brought against the responsible Council Officers.
I regret having to write to you in these terms but I trust you will appreciate that I am doing no more than seeking to preserve my position. I remain totally committed to having matters concerning the management of allotments in Aberdeen clarified and resolved, not only for my own benefit, but for the benefit of the other allotment holders in Aberdeen, and the issues at variance between myself and the Council can and will be resolved within the context of a Court Action
In the meantime, I shall continue to cultivate my allotments as normal in the knowledge that should the Court decide in favour of the Council that my efforts shall have been wasted although I remain totally confident in the strength of my arguments.
I shall leave it to you to distribute copies of this email to the Council Officers concerned with this matter and would be grateful for your assurance that no attempt will be made to recover possession of my allotments without Court Proceedings.
Frank Taylor.
21 January 2012
Almost a year on and apologies to anyone who has looked in to our website hoping for updates. There has been nothing to report as nothing is likely to happen until after 31st January 2012 when the period of notice given by Aberdeen City Council expires. Hopefully the Council will proceed immediately with an action in the Sheriff Court in an attempt to recover possession of my allotments. It has been confirmed to me by an independent Solicitor with 30 years experience in Scots law that the Council cannot eject me without court action and that to try to do otherwise would be considered to be harassment and as such a criminal offence would be committed.
The issues are clear and I have absolutely no doubts at all in the strength of my arguments so the opportunity to have matters clarified within the context of legal proceedings will be welcome.
31 January 2011
The Council issued a letter dated 28th December 2010 containing a notice to quit and a statement that my allotment leases have been terminated. The response below has been sent to Stuart Carruth, acting Chief Executive of the City Council
" Dear Mr Carruth,
I refer to you email of 6th January and must express disappointment that I have had no further contact from yourself or from the City Solicitor.
It is all the more disappointing because Council Officers have attempted to take enforcement action against me as a result of my withholding rent for my allotments. I have carefully used the word “attempted” as it is clear from the wording of s6(1)Allotments Scotland Act that regulations that have not been confirmed by the Scottish Ministers are legally unenforceable. You may check the exact wording of the Act here http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1892/cukpga_18920054_en_1
I have attached a document containing a scanned copy of a letter dated 28th January 2011 in which it states my allotment leases have been terminated and the letter also gives me notice to remove on 31 January 2012. This note did not form part of the email to Mr Carruth. A copy of the document can be accessed here.plot notice to quit.doc
I will make it clear now that I shall not be vacating my allotments and that I do not accept that in the circumstances of this situation that the Council is either entitled to terminate my leases or to give Notice to Quit. In the course of any Court proceedings raised by the Council for recovery of possession of my allotments, that letter of 28 January 2011 shall be produced to show that the notice to quit was given as part of unlawful enforcement proceedings for non-payment of rent. In the circumstances, I do not anticipate any difficulty in having the termination of my leases or the Notice to Quit set aside or having any such court proceedings dismissed.
It escapes me how Council Officers could possibly think it could be lawful to try to evict a tenant who has quite lawfully refused to pay monies which the Scottish Government, via John Swinney Finance Minister, has confirmed a Local Authority is not entitled to collect using regulations which have not been confirmed in terms of s6(1) of the 1892 Act when the Council is in full knowledge that its regulation for rent has not been so confirmed.
I look forward to the Council’s response"
The following comment was not sent to the Council. There is nothing to fear from this clumsy bullying approach from the Council. The allotments legislation is there to protect allotment tenants from just this sort of thing and the sooner Aberdeen City Council gets its corporate head round this the better and we can all move on to improve the allotments service in Aberdeen.
4 January 2011
" Dear Mrs MacEachran,
I refer to your letter of 22nd December 2010.
I have to say that I am more than a little surprised at your comment relative to the Unfair Terms in Consumer Contract Regulations 1999, since the OFT in its Guidance Notes states: -
“The guidance assumes that, in general, landlords can be considered 'suppliers' and private tenants 'consumers' for the purposes of the Regulations. “
Aberdeen’s allotment holders are as much tenants as any other tenant is and the definition of a contract in the Oxford English Dictionary is plain enough. With the clarification given above, I trust you will be now be able to accept that The Unfair Terms in Consumer Contract Regulations 1999 do apply.
With regard to the Harwood case I note your comment that it is an English case and that it is not binding in any way in Scotland. I hope by that comment you are not indicating that you consider it is appropriate for Aberdeen City Council to discriminate against its allotment holders.
I am aware that the decision of an English court is never binding upon a Scottish court. However, I am also aware, as I am sure you must be, that where no Scottish authority exists the Scottish Courts have made use of English case law as precedent.
Also I must take issue with your comments relative to the subject matter of the Harwood v Reigate case. The case was not concerned solely with the matters you mentioned.The judge did consider whether allotments are “recreational” and concluded that they were “recreational” but in addition, he also considered whether it was lawful for a local Authority in England to subsidise its allotments and concluded that it was appropriate and indeed that local authorities were expected to subsidise them heavily. These matters were subsidiary to the main issue of discrimination and the judge’s decision was that Reigate and Banstead Council had discriminated against its allotment holders and found in favour of the plaintiff. The judgement included the following statement which is unequivocal.”What does seem to me to be the right approach for (unknown word)council to take is not to discriminate against this recreational activity as compared with other recreational activities.
The judge also expressed the view that he considered it was not appropriate to bench mark against other local authorities.
I totally appreciate that our domestic allotments legislation is different from the English version.
In section 10 Allotments(Scotland)Act 1950 it 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:” It is therefore clear that once such a fair rent has been established that a Scottish local authority simply has without restriction to bear all the expenses related to the letting of its allotments whether or not this gives rise to a deficit. There is simply no question of allotment holders being required to pay any additional monies simply because a local authority has a need to raise monies for other purposes.
Aberdeen Council made no effort to determine whether the rent it set for its allotments was the fair rent for the use of allotments. Indeed in the report produced to elected members before the budget meeting in February 2009, it clearly states that the increases were designed to contribute to a fund raising effort by the Council and the matter of the allotments legislation was ignored. (That of course was totally contrary to the reason set out in the flawed Equality and Human Rights Impact Assessment produced by Council Officers in November 2009 relative to those increases.)
I am prepared to continue to engage with the Council to try to resolve matters but my standpoint remains unchanged.
1. John Swinney has confirmed that Local Authorities are not entitled to collect rent for allotments using regulations that have not been confirmed by the Scottish Ministers.
2. Even if that was not the case, the rent increases applied to the City’s allotments in 2008 and 2009 were unfair
a. in terms of the Consumer Contract Regulations 1999 and
b. because Allotment Holders were discriminated against and not treated in the same way as users of other Council owned leisure facilities, and,
c. Increases in rent were determined without regard to whether the resultant rents were the fair rent for the use of the land for allotments as required by law.
d. Increases in rent were determined having regard to the levels of rent within other local authority areas but without knowledge of the other circumstances affecting allotments in these other areas.
e.Increases in rent were determined having regard to the contents of a report produced by Council Officers containing wrongful and misleading information.
f. An equality and Human Rights Impact assessment prepared by Council Officers relating to the 2009 increases was fatally flawed in several respects.
If the Council remains unprepared to recognise that these complaints are legitimately based, then as stated previously, I am prepared to defend any Court Action brought against me for recovery of unpaid rent or for recovery of possession of my allotments and the Court will provide a resolution.
Frank Taylor
14 December 2010.
Another couple of avenues have opened up to allow us to dispute the legality of the rent increases imposed in 2008 and 2009.
the following email was sent to the chief Executive of the City Council today.
" Dear Mrs Bruce, Discrimination against allotment holders
as luck would have it, in researching further in anticipation of having to defend myself against a possible court action at the instance of the Council either for recovery of rent or for possession of my allotments, I have become aware of something very rare,- a court case involving a dispute about increases in rent for allotments - the 1981 Chancery Division of the High Court case Dennis John Harwood v The Borough of Reigate and Banstead. I have attached a pdf file containing a very poor copy of the judgement. I assume you will be able to access a better copy if that is required.(this note was not part of the email. a link to the pdf file can be found below)
I am aware that this is an English court case and that there is quite separate allotments legislation in England but crucially, the resolution was not rooted in the allotments acts but on the issue of unfairness and discrimination against allotment holders.
In the judgement, Mr Vivian Price QC made the following observation "What does seem to me to be the right approach for (unknown word) council to take is not to discriminate against this recreational activity as compared with other recreational activities" he goes on to say " in the ordinary case, if there is to be an increase in the (unknown word)charged, then it should be in line with the other increases that (unknown word) have been charged for the use of the other recreational facilities. He concludes by saying that the stance taken by Reigate and Banstead Council "has resulted, in this particular case in an unfair and excessive charge being imposed upon the allotment holders"
The issue of the failure by the City Council to formalise its allotments regulations aside, the issues in Aberdeen are not dis-similar to the Harwood v Reigate and Banstead case. There is no impediment to the council subsidising allotments and huge increases have been applied to allotments that have not been mirrored in the size of the increases applied against other council run leisure facilities.
It is clear that the increases applied will require to be reversed and affected allotment holders are entitled to have the increases refunded.
Please confirm that this will now be done.
Also, I should at this time inform you that I have been made aware that The Unfair Terms in Consumer Contract Regulations 1999 makes it automatically unfair for a landlord to impose an arbitrary increase in rent. 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.
This simply reinforces the strengths of my arguments.
I look forward to you observations
Frank Taylor"
15 November 2010.
This dispute has been taken as far as it can go on a friendly basis if the Council continues to refuse to see what is staring it in the face. I have withheld rent and will continue to do so. If as I hope, the matter ends up in the Sheriff Court, the court will ultimately make the decision. In the meantime, the Council will have to decide how it can possibly take the matter into court without any regulations made in pursuance of the allotments acts. That in itself is a pointer.
12 November 2010
Aberdeen Council proposes to withdraw our allotment leases and to impose new ones. No allotment holder should accept the new leases. The Council is not entitled to do this.
Nor should any allotment holder pay rent for their allotment(s). John Swinney, Scottish Finance Minister has said no Local Authority is entitled to collect rent for allotments using regulations that have not been confirmed by the Scottish Ministers. Aberdeen City Council has not had it's regulation for rent confirmed by the Scottish Ministers.
12 November 2010.
A busy day with email correspondence that is clearly going nowhere and ending with a n email to Mrs Sue Bruce Chief Executive of the City Council.
Start below with the reminder email sent to Ms Kilvington.
Dear Mrs Bruce,
I have forwarded the email I received from Ms Kilvington in the Council's legal department in reply to one I sent earlier today.
In my email of 4th November, I put the following basic incontrovertible concepts to Ms Kilvington.
1. The ordinary and normal meaning of a regulation is a rule or similar device that regulates or has the effect of regulating.
2. The rules and conditions included in the allotment missives are used to regulate the management of the allotments.
3. The rents for the Council Allotments are regulated by decisions made in the Council Chamber.
4. The Council has other rules that it uses to regulate other matters in connection with its allotments e.g. waiting lists.
No-one can reasonably dispute any of the foregoing. If something is regulated, regulations must have been made. Neither can any reasonable person dispute that Ms Kilvington's earlier argument was to try to exclude regulations contained within allotments leases or missives from the requirement to have them confirmed by the Scottish Ministers even although it is clear that because the word "regulations" is undefined in the legislation, that all regulations require to go through that process.
Over 300 allotment holders are affected by this. Some of them disabled, some of them are very elderly, some have young families and are dependent on the produce from their allotments as a very important contribution to their household budgets. A resolution that results in the City Council's management of allotments being compliant with the law is urgently required.
I am now looking to you in your capacity of Chief Executive to ensure that the City Council does what is right and proper.
Ms Kilvington has said in a subsequent email it is now for me to decide where I go with this but of course it is the Council that requires to make a decision. I have already said I am quite prepared to defend any court action raised against me either for recovery of rent or for recovery of possession of my allotments. If that is the route the Council chooses to take I am more than happy to meet that head on.
Frank Taylor
Secretary
Bucksburn Allotments Association
Dear Ms Kilvington,
on the contrary, it is for the Council to decide where it goes. I have already said I am quite prepared to defend any court action raised against me either for recovery of rent or for recovery of possession of my allotments. If that is the route the Council chooses to take I am more than happy to meet that head on
Frank Taylor
Secretary
Bucksburn Allotments Association
Dear Mr. Taylor,
I have stated what our views are and it is up to you to decide you where you go from here.
Regards,
Liz Kilvington
Legal Manager ( Conveyancing Team )
Legal and Democratic Services
Corporate Governance
Town House
Broad Street
Aberdeen
AB10 1AQ
Dear Ms Kilvington,
I do indeed appreciate that you have many matters crossing your desk that are urgent but there is an extreme urgency now affecting over 400 Allotments in the City.
As you have clearly indicated you do not intend entering into further correspondence, you might do me the courtesy of how you intend having this matter resolved because it clearly does not end here.
Frank Taylor
Secretary
Bucksburn Allotments Association.
Dear Mr. Taylor,
As it happens,a reply was on my "to do" list for today as I am conscious it is a week since our exchange of e-mails. As you'll appreciate, I have many other work issues to deal with every day, many of them urgent.
I regret to say, that since we appear to continue to disagree over the matter, I do not intend to enter into any further correspondence regarding the matter of allotment regulations.
Regards,
Liz Kilvington
Legal Manager ( Conveyancing Team )
Legal and Democratic Services
Corporate Governance
Town House
Broad Street
Aberdeen
AB10 1AQ
12 November 2010
The following email sent to Aberdeen City Council today.
Dear Ms Kilvington,
it is now more than a week since I put some very basic arguments to you that point directly to the conclusion that the Rules and other similar devices used by Aberdeen City Council for the management of its allotments are indeed regulations that require to be confirmed by The Scottish Ministers to give them legal effect irrespective of whether or not they are contained in allotment leases or missives.
I had to wait over 8 months for a reply to the last email I sent on this subject and I had hoped that because of that and because another batch of rent notices is due to be sent to allotment tenants at the end of this month that you would now treat this matter as an urgent priority.
I look forward to an early reply
Frank Taylor
Secretary
Bucksburn Allotments Association
6 November 2010
Aberdeen Council proposes to withdraw our allotment leases and to impose new ones. No allotment holder should accept the new leases. The Council is not entitled to do this.
Nor should any allotment holder pay rent for their allotment(s). John Swinney, Scottish Finance Minister has said no Local Authority is entitled to collect rent for allotments using regulations that have not been confirmed by the Scottish Ministers. Aberdeen City Council has not had it's regulation for rent confirmed by the Scottish Ministers.
6 November 2010
the following email was sent to all Aberdeen City Councillors today.
I hope you all recall that the day before the Council budget meeting in February 2009 you all considered a report prepared by Council Officers relative to rent increases for Council Allotments. In that report was a claim, which we strenuously denied at the time, that Allotments in Aberdeen were twice the size of Allotments in Edinburgh and Glasgow.
To be able to substantiate such a claim, Council Officers needed to know two important things.
- The size of the allotments in Edinburgh and in Glasgow
- The size of allotments in Aberdeen.
At the time, we made it clear that the information provided to you about plot sizes in Edinburgh and in Glasgow was totally wrong and that plot sizes for these cities were understated in the report.
We made no major representations about plot sizes in Aberdeen except to say that Council Officers had stated that a full sized plot was 300squ metres and a half plot was 150 squ metres when in fact the measurement that should have been used was sq yards and not squ metres. Using squ metres resulted in an overstatement of size in Aberdeen of 20%. Local allotment holders think that the use of the wrong unit of measurement was a deliberate ploy by Council Officers to bolster their argument.
You may have read in the local press this last week that Council Officers are presently measuring the size of allotments in Aberdeen.
This seems to be an incontrovertible indication that Council Officers do not presently know the size of the allotments in the City and most certainly did not know in February 2009.
It certainly appears that Councillors were deliberately deceived by Council Officers and I hope that at least some of you will take steps to ensure that the responsible Officers are held to account for this and that there will be no repetition of this disgraceful behaviour which has undoubtedly brought shame upon the Council.
If malfeasance in public office is a criminal offence, these officers deserve to be prosecuted. For the local electorate to have any confidence at all in what takes place in the Council Chamber, they need to know that they can rely on the integrity of all Council Officers who are involved in production of information to Councillors. Local Allotment Holders certainly have no confidence in the Officers who prepared the defective report and that very point was made to Councillor Neil Fletcher even before the report was compiled.
Frank Taylor
Secretary
Bucksburn Allotments Association
5 November 2010
Further email sent To Mr Stewart Carruth Director of Corporate Governance at Aberdeen City Council today.
Dear Mr Carruth,
I am aware that you shall not be commenting but my understanding is that you have been charged with the responsibility for having this matter resolved hence my communication with you.
I understand you are Director of Corporate Governance and part of your area of responsibilities is to ensure that the Council is in compliance with the law.
You may care to read the following.
The following words are contained at the beginning of the Allotments(Scotland)Act 1892. -"An Act to facilitate the provision of allotments for the labouring classes in Scotland."- in other words for the benefit of the poor and uneducated class.
With that in mind, on reading the legislation,it becomes abundantly clear that the act provides an almost unbelievable level of protection for allotments and allotment holders. Section 6(1) is unambiguous. That section provides local authorities with the ability to make whatever regulations they wish for the management of their allotments and to give these regulations legal force by going through the process of publication, full public consultation and finally having them confirmed by the then Secretary of State for Scotland - now the Scottish Ministers. Aberdeen City has not done this and had its allotments regulations so confirmed.
Protection from possible excesses of Local Authorities is provided by the public consultation process and the ministerial supervision, the responsible minister being entitled to modify the regulations if he considers that course of action appropriate.
It is inconceivable that a local authority can escape the provisions for supervision and protection by including its regulations in a lease or in missives.
By any measure, a local authority that increases its allotment rents across the board by 80% and follows this with increases for some allotment holders of a further 72% increase within a twelve month period has acted to excess.
Not only has there been no public consultation about the rent increases but the Council actively sought to conceal the increases from local allotment holders even after the first trench of increases had been passed by the Council by excluding them - the principal stake holders- from the final stages of the consultation process leading up to the completion of the Council's Allotments strategy.
The Council has increased allotment rents simply because it needed to raise funds from any possible source without any regard to the necessity to ensure that the increased rents are fair for the use in terms of section 10(1)Allotments (Scotland)Act 1950 .
The 2009 increase was referred to in an Equality and Human Rights impact assessment as being designed to rectify an unfair situation whereby some allotment holders had a water supply and paid for it, and some others had a water supply and did not pay. The end result is that we all now pay for a water supply whether or not we have a water supply( our members at Bankhead do not have a water supply) and that is clearly even more unfair. It was not the minimum interference required to redress an inequality as was claimed within the body of that document.
In any event,the truth of the matter is that the increase was imposed because local allotment holders complained that the rents imposed the previous year were unfair to half plot holders because they were paying proportionately more for their plots than full plot holders. A tenant with two half plots would pay £68.10 and a full plot holder with the same area of ground would pay only £50.
If the fair rent for a full plot was determined to be £50, we argued that the rents for our half plots should have been £25. Instead, the Council simply doubled the rent for a half plot to establish a new rent for a full plot. It beggars belief.
Subsequently, Council Officers produced a report to Elected Members in which was contained what was represented to be a benchmarking exercise. In that report, it was claimed that plots in Aberdeen were twice the size of allotments in Edinburgh and Glasgow. That was total fiction as the sizes stated for the plots in these cities was wrong. In any event, to be able to know that allotments in Aberdeen were twice the size of allotments in Edinburgh and Glasgow, Council Officers needed at the very least to know the size of the City's own allotments. It has now become evident that Council Officers did not have that knowledge. (Council Officers are presently measuring the City Allotments).
Also in that report, Council Officers stated that a full sized plot in Aberdeen was 300 squ metres and a half sized plot 150 squ metres despite referring to 300 squ yards and 150 squ yards in another document prepared only weeks before by the same Council Officers. Local allotment holders are convinced that this was done simply to bolster the Council's argument.
No reference was made to plot sizes and costs in Dundee where plots are charged by the pole(approx 10.25 squ yards) and the cost of a full plot of 300 squ yards at the time(and may well be the same) in Dundee was £30.
I cannot believe that for local government officers to produce a report of this nature, containing the flaws I have described, and to put this before elected members who are then expected to make important decisions using defective information is not a criminal offence.
Had this Council simply sought an increase in half plot rents to £25, the likelihood is that we would have accepted it. Yes we would have grumbled but we would have accepted it without making any investigations. However, because of the scale of the increases and the attempt to conceal the information from us, we discovered that our rents were disproportionately high and on investigation also discovered that the Council had not followed the necessary procedures. We also discovered that our increased rents had become the highest in Scotland by some way yet we have some off the poorest allotments services and facilities. Along the way, we have discovered that the Council is and remains in breach of the allotments legislation in various aspects.
I have been fobbed off at every turn but I shall not be deflected from ensuring that the City does now make the necessary regulations and in the process ensure that the City's allotment holders get the protection intended by the law. It is also my intention to ensure that the City fulfills all its mandatory obligations under the law. There is at least one instance where there has been in the very recent past a point blank refusal to do so in a situation where matters affecting an adjoining allotment have an adverse effect on my ability to cultivate my own allotment. Also, some allotment holders are being denied the opportunity to put their names on waiting lists because they already have small plots yet by law, we are all entitled to have up to 4 full sized plots. These things all need to be sorted out
You may also care to note that it is clear from reading the legislation that every allotment holder within a local authority area is expected to be subject to the same allotments regulations. As things stand in Aberdeen, even allotment holders in adjoining plots may have different leasing conditions, indeed I personally have different missives for two adjoining plots. That is patently ridiculous. The public at large is entitled to know what the allotment regulations are and allotment holders most certainly need to know.
Much of the problems in Aberdeen have arisen because the Council Officers responsible for their management and development are ignorant (not intended as an insult) of the law and are guddling about making changes without regard or knowledge of the possible consequences.
I am not an enemy of the City in this matter. I simply want to see matters put on a proper footing as quickly as possible and that will involve having all the regulations presently used by the Council confirmed by the Scottish Ministers and may in fact involve the creation of others. Yes, it will cost money at the outset but if structured properly, any regulations made and confirmed by the Scottish Ministers should not need any future adjustments. With regulations in place, our allotment holders will have all the protection they need and the Council will also have all the legal authority it needs which clearly is not the case as matters stand.
As I see it, the Council has several options.
1. To allow me to occupy my allotments rent free and to hope that I go away. That will not provide a remedy as other allotment holders will subsequently withhold rent as soon as I make them aware of the situation. I have not pursued this matter solely for my own benefit.
2.To press on with court action. In the event that I am able to successfully defend any court action brought against me either for recovery of rent or for possession, and I am in do doubt that my case is sound, all local allotment holders will subsequently withhold rent as soon as I make them aware of the situation.
3. To accept that it has made regulations that are presently unenforceable because they have not been confirmed by the Scottish Ministers and to take the appropriate action to have its allotment regulations confirmed.
I look forward to response either from you or from one of your colleagues in early course
4 November
Further email sent To Mr Stewart Carruth Director of Corporate Governance at Aberdeen City Council today.
Dear Mr Carruth,
I apologise for not copying you in to my replies to Ms Kilvington's belated response to my email of 17th March.
There is a second short email which I shall shortly also forward.
The sum and substance is that Ms Kilvington continues to assert that the word regulations referred to in the allotments legislation should mean something other than the literal ordinary and normal meaning of the word even although that word is not defined in any of the Allotments legislation. If it was intended that regulations contained in allotments leases/missives were to be excluded, that provision would surely be contained within the legislation and it clearly is not so contained.
My position is firm.
For the avoidance of doubt and since I omitted to comment earlier, I totally accept that it is not mandatory for local authorities to make regulations for the management of its allotments.
It is however necessary for them to do so if they decide to regulate the management of any aspect of the letting of its allotments and in this respect as I have already stated several times, Aberdeen City Council has chosen to make allotments regulations and has done so in a number of ways but has not had them confirmed by the Scottish Ministers as is required. That simply cannot be refuted.
Frank Taylor
4 November 2010
Aberdeen Council proposes to withdraw our allotment leases and to impose new ones. No allotment holder should accept the new leases. The Council is not entitled to do this.
4 November 2010
At long last a reply today from the City Council to my email of 17th March. See the email received below my reply also sent today(a small amendment made later and intimated to the Council has been made to the first sentence).
Dear Ms Kilvington,
I have read the terms of your email below very briefly and there is nothing contained therein that has changed my view that at it's simplest, in the absence of a definition in the legislation, the ordinary and normal meaning of a regulation is a rule or similar device that regulates or has the effect of regulating. That simple concept surely cannot be in dispute?
The rules and conditions included in the allotment missives are used to regulate the management of the allotments. That simple concept surely cannot be in dispute?
The rents for the Council Allotments are regulated by decisions made in the Council Chamber. That simple concept surely cannot be in dispute.
The Council has other rules that it uses to regulate other matters in connection with its allotments e.g. waiting lists. That simple concept surely cannot be in dispute?
If those simple concepts cannot be accepted by the Council, then I'm afraid that we remain at odds over this and I shall continue to refuse to pay rent for my allotments. I am totally confident in my interpretation of the law and will happily defend any court action brought against me for recovery.
Mrs Bruce copied in to this email as a courtesy.
Frank Taylor
the following was sent in a separate email
What I should perhaps have added is that you are once again trying to get away from the normal usage of the word regulations by referring to regulations contained within a lease. Whether or not they are within a lease, they are nevertheless still regulations.
Frank Taylor
Dear Mr. Taylor,
I apologise for the inordinate delay in responding to your e-mail of 17th March which was in response to my earlier e-mail to yourself. This is in part due to a misunderstanding on my part as to who was to be following the matter up and I accept responsibility for that misunderstanding. That said, I now respond.
You indicate in your response, quite correctly, that my e-mail dealt primarily with whether or not it is mandatory for a local authority to make regulations under s.6(1) of the 1892 Act but did not address your argument that, in your view, whether or not regulations are mandatory ( and you do not dispute that they are not ), this Council has made regulations governing the management of its allotments and that since these regulations have not been confirmed by Scottish ministers as provided for in the above mentioned section, they are of no legal effect.
You refer to the literal interpretation of words by the courts ( albeit that you are quoting English rather than Scottish authority ) and have provided the Oxford dictionary definition of the word "regulation".ie "a rule or directive made by an authority ". I have sourced other similar definitions and am happy with what the meaning of the word is and that there is no reason to suppose it means anything different where it appears in the Allotments legislation. The one thing these definitions have in common - and to my mind this is the critical factor - is that a regulation is something which is made by one party and imposed unilaterally by them on another party or parties.
If , therefore , one regards the meaning of "regulations "in the Allotments legislation as referring to regulations in the usual, everyday , dictionary definition sense of the word this would tend to indicate that what is being referred to is a stand alone regulation or set of regulations drawn up by a local authority relating to how their allotments are to operate and imposed unilaterally by them. In order to safeguard against unreasonable regulations or regulations which might contravene the legislation in other respects safeguards are inbuilt to protect plot holders so that such regulations , or any changes thereto, require to be confirmed by the Scottish ministers .Thereafter they are binding "on all persons whatsoever"and the local authority is under a duty in terms of s.6(2) to make the regulations known however they think fit. None of this sounds unreasonable. As you are aware, however, local authorities are not bound to make regulations.
A lease or missive of let is a contract between two parties and, this being so, such conditions as are contained therein are not regulations as above referred to, whether they relate to rent or use of the plot or whatever else . The conditions are not unilaterally imposed but are agreed to by both parties to the contract and there is a safeguard in that the conditions cannot be altered except by agreement. Some local authorities may choose to have a very simple lease in place and separate confirmed regulations and others, such as this Council, to have fairly detailed leases or missives of let with no need for an overarching set of regulations.
A lease , by its very nature contains conditions and a further pointer towards the fact that these conditions are not synonymous with regulations are the terms of s.1(d) of the 1922 Act ( referred to in our previous exchange of e-mails ) which talks about "any irritancy of the lease by the tenant or any breach by the tenant of the regulations made by a local authority under the Allotments Acts " This would appear to indicate clearly that conditions of lease are not regarded as regulations.
With reference to the Ministerial Answers to the various Questions raised in relation to allotments, it has been made clear that if regulations are made ( and it is recognised that none have to be ) then they must be confirmed but there is no definition given off what constitutes a regulation. Matters of interpretation of the legislation are left to the users of same.
In summary,it is not considered that this Council is managing its allotments on the basis of unconfirmed regulations in terms of s.6(1) of the 1892 Act.
Regards,
Liz
Liz Kilvington
Legal Manager ( Conveyancing Team )
Legal and Democratic Services
Corporate Governance
Town House
Broad Street
Aberdeen
AB10 1AQ
27 September 2010
Important
Aberdeen Allotment holders should remember that John Swinney, Scottish Finance Minister confirmed in an answer to a parliamentary question lodged by Doctor Nanette Milne MSP that Local Authorities were not entitled to collect rent using regulations that have not been confirmed by Scottish Ministers. Aberdeen Voice, a local online newspaper printed an article for us on Friday 24th September 2010. The text of that article can be seen here.Aberdeen Voice Article
Still no response from The City Council or from Roseanna Cunningham, Minister for the Environment.
20th September 2010
Despite regular reminders to the City Council via the office of the Chief Executive, it has proved impossible to get any response to my email of 17th March. Even more seriously, I have withheld payment of rent for my allotment following John Swinney's reply to a parliamentary question in which he made it clear that a Local Authority is not entitled to collect rent for allotments using regulations that have not been confirmed by the Scottish Ministers. This resulted in the receipt of a threat from local Sheriff Officers to institute court proceedings for recovery.
The following email sent to the Chief Executive of the City Council today contains the text of my reply to the Sheriff Officers.
Dear Mrs Bruce,
you will find below the text of my letter to Scott and Co, Sheriff Officers.
Frank Taylor
17 September 2010
Messrs Scott and Co
16 Queens Road
Aberdeen
AB15 4ZT
Aberdeen City Council
Ref DCA113582/CO231578
12 digit new account number 212938206006
Sirs,
I refer to your communication of 15th September in which you threaten me with court proceedings for recovery of a sum of £78.75 due to Aberdeen City Council.
I am perfectly happy for this to proceed directly to court.
The account issued to me by Aberdeen City Council is in respect of allotment rents.
As such the Council is bound by the terms of the Allotments Acts 1892 to 1950 and in particular to section 6(1) of the 1892 Act which makes it patently clear that any regulations made by local authorities for the management of their allotments (including regulations for rent) must be formally confirmed by the Scottish Ministers before having any legal force. Aberdeen City Council has publicly confirmed that it does not have and never has had regulations for its allotments that have been so confirmed. Section 6(1) of the 1892 Act concludes with the following. “Provided also, that all regulations made under this section shall not be of any force unless and until they have been confirmed by the Secretary for Scotland, after such publication and inquiry, and with such modifications (if any) as the said Secretary shall determine.” There has been no consultation about the rents charged, there has been no inquiry –full public consultation - and John Swinney for the Scottish Government on Wednesday, November 04, 2009 in response to a parliamentary question, confirmed that a search of existing records did not identify any local authority as having referred for approval amendments to regulations made under section 6(1) of the Allotments (Scotland) Act 1892.
Further on January 15, 2010, John Swinney for the Scottish government, in response to a parliamentary question made it absolutely clear that a local authority would not be entitled to collect rent for allotments under regulations that had not been formally confirmed by Scottish Ministers in terms of section 6(1) of the Allotment (Scotland) Act 1892 stating that Regulations made under this provision have no legal effect without ministerial confirmation. The Council is aware of John Swinney’s statements.
For some reason, probably economic and relating to the costs involved in a full public consultation, the Council has taken the preposterous view that the rules and regulations it has imposed on its allotment holders are not the sort of regulations referred to in section6(1) of the 1892 Act even although these regulations are not defined in any of the legislation. By setting a rent, the Council has made a regulation. (If you check the Oxford Thesaurus you will find that set is a synonym of regulate).
I have sent numerous emails to the Chief Executive of the City Council on this subject that she has referred to the Council’s legal department, the most recent being sent yesterday. Regrettably, I cannot illicit any response to these emails.
It may be that it will take a decision by the Court to persuade the Council that it is wrong which is why I am happy for this to proceed to court not just for my own benefit but for the benefit of all the other allotment holders in Aberdeen and indeed throughout Scotland.
Your faithfully
Frank Taylor
23rd March 2010.
Disappointingly, even after demonstrating irrefutable proof to the city Council that the various regulations it has made in a variety of ways for the management of allotments cannot be enforced, the view of the Council seems to remain that they do not in any circumstances require to make formal regulations and have them formally confirmed by Scottish Ministers.
See the following email sent to the Chief Executive of the Council on 17th March 2010. The crucial point is that the City Council has made regulations. Whether they may, can or need to make them is irrelevant. The fact is that regulations have been made and have not been confirmed by Scottish Ministers.
Dear Mrs Bruce,
I have read and considered the email prepared by the City's legal team, I have made various comments within the body of the email below but I have to say that Ms Kilvington's comments are centred on whether a local authority can, may or needs to make regulations for the management of it's allotments and not on the actual situation which is that the Aberdeen City Council has made regulations that have not been confirmed by Scottish Ministers.
The word regulation is defined in the Oxford English Dictionary as a rule or directive made and maintained by an authority.
That definition can be checked here. AskOxford: regulation
Has Aberdeen City Council made regulations for the management of its allotments and does it maintain them? Of course it has and does and I detailed five different ways in which the council has made regulations in my email to you dated 2nd February.
I can understand that Council Officers may have mistakenly thought that the word regulations contained in Section 6(1) Allotments(Scotland) refers only to that type of regulation used for secondary or delegated legislation but as John Swinney has indicated, the word is not defined. It is a well established legal principle that in circumstances where a word in legislation is undefined, that the Courts will apply what is known as 'the literal rule' and apply the literal ordinary and natural meaning of a word in interpreting the law. You may care to look at the following websites where there is a clear consensus of opinion.
Statutory Interpretation
The next question is therefor whether the literal, ordinary and natural meaning of the word regulation fits with the definition of a regulation - a rule or directive used and maintained by an authority - and again the answer clearly is yes.
It is therefore a question of fact. Aberdeen City Council has made regulations for the management of its allotments that have not been confirmed by Scottish Ministers. Without such confirmation such regulations are unenforceable. The wording from the act can be checked here.Allotments (Scotland) Act 1892 (c.54)
You will note that I have copied this email to Councillor Kevin Stewart who communicated with me on this topic the other day and to all elected members. If this matter cannot be resolved it is my intention to try to have the matter escalated through the Council and Councillors need to be aware of the issues and of the strength of our argument.
Elected members particularily those on the ruling body of the Council have a responsibility to ensure that all matters under their charge are dealt with in accordance with the law and that is what Aberdeen Allotment holders are seeking to achieve for their allotments.
Frank Taylor
Dear Mr Taylor
Please find below a response on behalf of the Chief Executive to your e-mails of 2 and 3 February prepared by a colleague in the Council's legal team.
Dear Mr Taylor,
As I believe you are aware, your e-mails of 2nd and 3rd. February , addressed to the Chief Executive, were passed to the City Solicitor ( now Head of Legal and Democratic Services ) for a response and I have been asked to reply on her behalf in my capacity as Legal Manager of the Council's Conveyancing Team.
Firstly, I apologise , on behalf of the Council, for the delay in responding due to a genuine oversight. With no disrespect to yourself intended, the sheer volume of e-mails from yourself to the Council over the last few months - most of them containing similar content - has led to these two being inadvertently overlooked. However, I now respond as follows:
With reference to these two e-mails, I do not propose to go through them point by point but , rather, to deal with the main thrust of same which appear to be that the Council is acting inappropriately in the way that it manages allotments through lease terms, committee decisions etc because there do not exist any regulations made and confirmed by the Scottish ministers in respect of the council's dealings with allotments as provided for in section 6 (1) of the Allotments ( Scotland) act 1892, which you consider to be mandatory. At no point have I expressed the view that there is a mandatory requirement to make regulations. What I have said and continue to say is that Aberdeen City Council has made regulations(by the literal ordinary and natural meaning of the word) and because of that requires to go through the process described in section 6(1) of the 1892 Act to give these regulations legal force. I described five separate ways in which the Council has made regulations in my email of 2nd FebruaryIn this regard, I would re-iterate what colleagues have already said to you , namely, that the wording of this section does not say that the making of regulations is compulsory but that the council "may " make such regulations and , if they do, must have same confirmed by the Scottish Ministers.
Although section 6(1) does say local authorities may make regulations, it most certainly does not provide for any other procedures to give a local authority the legal authority to manage its allotments. It is abundantly clear, even to a layman, that section 6(1) is designed to allow local authorities to give themselves the legal authority to regulate the management of those aspects of their allotments that they choose to manage by making formal regulations. For whatever reason, Aberdeen City Council has chosen to try to manage its allotments using regulations that have not been formally confirmed by Scottish Ministers. Section 6(1) is explicit. Provided also, that all regulations made under this section shall not be of any force unless and until they have been confirmed by the Secretary for Scotland, after such publication and inquiry, and with such modifications (if any) as the said Secretary shall determine.I am aware that there have been a number of Parliamentary questions put to John Swinney in recent months, which he has answered, regarding Allotments and I refer to two of his answers, in particular, namely those of November 4th 2009 and December 8th 2009. In the first of these he said "A local authority may make regulations under section 6(1) of the Allotments ( Scotland ) Act 1892 as regards the letting of allotments , but the legislation does not compel them to do so " In the second of these he said " Allotment legislation refers to regulations which local authorities CAN make about the letting of allotments in their area, but does not define these. It is up to each local authority to decide whether and how it makes allotment regulations in terms of the relevant legislation" The critical words here seem to be " CAN " and " whether", neither of which indicate to me any element of compulsion.The critical element is the fact that Aberdeen City Council has made regulations for its allotments. Council Officers seem to be blinkered and cannot comprehend that the word regulations which is undefined in section 6(1) can simply mean anything that regulates or has the effect of regulating which is the literal ordinary and natural meaning of the word.
As you have clearly read the various parliamentary questions and answers I shall make no further reference to them except to say John Swinney has made it clear in various answers that a local authority cannot rely on informal regulations and in particular with regard to rent, that a local authority is not entitled to collect rent without a regulation that has been confirmed by Scottish Ministers.
In relation to some other questions which have been asked, it seems to me that the gist is that if regulations are in place these should be adhered to and, in the event of variations, these require to be formally ratified but this is not the same as saying there is a legal requirement for such regulations to be there in the first place.
In your e-mail of 3rd February, you refer to section 8(2) of the 1892 Act and that " That sub section provides for the local authority to be able to terminate a tenancy only by reference to " the regulations affecting such allotment made by or in pursuance of this Act " " The section in question does not provide for termination "only" by reference to regulations made. Non observation of regulations made under the Act, is just one of a number of possible grounds for termination given in that section. This is also the situation with respect to section 1 (4) of the 1922 Act to which you also refer. I would agree with you that any reference to "regulations " means regulations in terms of the 1892 Act but that is not the same as saying that there have to be any such regulations in place.
In your e-mail of 2nd February, you ask if the Council has taken external advice as to the interpretation of section 6 (1) or will consider doing so. The answer is that the Council has not nor, as far as I am aware, feels the need to do so.
As regards the idea of arbitration or some other form of non adversarial procedure ( eg mediation ), I have spoken to a colleague in our Court Team who advises that these sorts of procedures are more appropriate for resolving matters such as contractual issues where a middle ground is sought which satisfies both sides but this is not really the situation here, as both sides are of the view that they are correct. There isn't, as I understand it, any "friendly", as you put it , procedure under the auspices of the Sheriff Court - courts are adversarial by nature. Thank you for checking this for me. If you think that the Council is acting out with its powers you could seek a Judicial Review through the Courts but clearly this is something in respect of which you would require to seek independent legal advice. The cost implications make this unlikely.
Part of the problem is, as I'm sure you'll agree, that the legislation relating to allotments has probably become outdated and over the years between 1892 and 1950 was enacted in a piecemeal fashion to deal with changing circumstances but has not moved on since. With a definite focus currently on the benefits of allotments, it is perhaps time for the legislation to be looked at and clarified but, unfortunately, that is not something we can respectively do. Undoubtedly, some parts of the legislation are outdated, as an example clearly there is no place for pigsties in garden allotments. However, section 6(1) was I have already said designed to allow local authorities to give themselves the legal authority to manage their allotments. It is a shortcoming of a local authority that does not avail itself of the opportunity to use that subsection and not a shortcoming of the legislation. Section 6(1)was also clearly designed to protect the rights of allotment holders from possible excesses of local authorities by the involvement of the public in the consultation process and also in that regard from ministerial involvement. It is clear that allotment tenants continue to require protection.
As regards the Council's allotments, you are aware , I am sure, of the intention to review the way things are run ( though that doesn't mean making regulations under the 1892 Act ! ) I think it may well do!! and , hopefully, this will prove positive , both from the Council's point of view and that of allotment holders. I fully appreciate that you wish to air your grievances but, without wishing to sound rude, it does appear that a very considerable amount of officer time ( and associated costs ) is being taken up going over the same ground - time which might be better spent on progressing the review. I make no apology for continuing to press the case for Aberdeen's allotment holders to have their allotments administered strictly in accordance with the law. The law is clear and unambiguous and it is the Council, not me, that refuses to accept the law. I assume the Council has taken this stance because of the cost implications of doing otherwise.
I have been forwarded, in addition to your e-mails of 2nd and 3rd. February, a copy of the e-mail which you sent on 4th March to elected members. To some extent this e-mail addresses some of the points raised in that e-mail but not all and a response will be sent, in due course, once there has been the opportunity to look into the various matters raised.
I hope the above is of assistance meantime.
27 February 2010.
After being geared up for a radio phone in on local Radio last Sunday, the main item under discussion over ran, and we were only left with time to get the first part of our message over - that we were not looking to get a freebie and that our campaign did not set out to try to obtain refunds of rent. We set out to achieve fair rents for our allotments and to have our allotments administered strictly in accordance with the law. That has not changed.
The law allows local authorities to make any formal regulations they want for the administration of their allotments. It does not permit any alternatives. Any regulations made must be formally confirmed by Scottish Ministers before they become legally enforceable.
Aberdeen City Council has admitted it does not have and never has had any formal regulations for its allotments.
John Swinney MSP for the Scottish Government, in reply to a parliamentary question,parliamentary questions answered has confirmed that local authorities are not entitled to collect rent from its allotment tenants without formal regulations that have been confirmed by Scottish Ministers. Aberdeen City Council has collected rent from us illegally. We want that money back.
In the meantime, we have been invited back on to local radio on 28th February and we will do our best to get our message over to the public and to the Council.
The big message is that Aberdeen City Council does not have any legal authority to manage its allotments. The law allows the Council to give itself legal authority by making formal regulations and having them confirmed by the Scottish Government but it has chosen not to do so. That situation must be rectified.
9 February 2010. Those of you who saw the article in yesterday's Press and Journal will have noted that the City Council has publicly said that they do not have and never have had Formal regulations for allotments. They say they may but do not have to make regulations for allotments.
I'll give this a separate line so that this is clear. I totally agree. The council does not need to make formal regulations,
I'll give this a separate line so that this is equally clear, only if they choose not to regulate any aspect of the management of their allotments.
If a local authority chooses to regulate the management of any aspect of its allotments, it requires a formal regulation that has been confirmed by Scottish Ministers.
Where is the proof for this? It lies within the Allotments legislation and the powers given to local authorities to recover unpaid rent and the powers given to local authorities to recover possession of allotments if a tenant breaches any of the leasing conditions. In both cases, a local authority can only found any court action on a breach of regulations that have been made by or in pursuance of the allotments legislation. i.e. Regulations that have been made after publishing, full public consultation and obtaining confirmation from Scottish Ministers.
Definite proof that a local authority does need formal regulations.
The other unarguable point is that whereas the allotments legislation allows a local authority to make regulations that have to be confirmed by Scottish Ministers, it does not provide any for any alternative.
8 February 2010
At last a response from Holyrood, but unfortunately just a holding reply which enables them to comply with their timing rules for replying to correspondence. I took the opportunity to discuss the situation with the gentleman dealing with the problem - Jared Stewart. I was able to confirm to Mr Stewart that since writing in December we had at least established why Aberdeen City Council was so at variance with our view. The City Council thinks that the word regulations has no other possible meaning than formal regulations of the kind required for secondary or delegated legislation. We take the view that because the word regulations is not defined in any of the allotments legislation or in any other legislation that we can find, that the word has the meaning of something or anything that regulates or has the effect of regulating. Our view is reinforced here Legal Directory: Interpretation of the law - The literal rule. I also made Mr Stewart aware of the wording of section 8 of the 1892 Act and section 1(1d) of the 1922 Act which make it abundantly clear that a local authority cannot enforce any regulation unless it has been made by or in pursuance of the allotments legislation. During a further conversation with Mr Stewart he told me that the explanations I gave him today " had added a whole lot of clarity to the matter"
Mr Stewart told me he had yet to talk to Aberdeen City Council, to Cosla and that he would be taking legal advice.No local authority has asked for regulations to be confirmed so none of them appears to be managing their allotments with proper legal authority. It is not just Aberdeen City Council that is affected.
It may take a wee while yet but we will get there.
3 February 2010
still no reply from Holyrood. In the meantime an exchange of emails with a senior Council Officer has at least revealed part of the Council's reason for refusing to accept that they have made regulations. Apparently we are referring to the wrong kind of regulations. The crucial thing is that the word "Regulations" used in the allotments legislation is undefined. In such cases where words are undefined, we think that it is the literal, ordinary and natural/normal usage of a word which should apply and in this case something or anything that regulates or has the effect of regulating. Our view is re-inforced hereLegal Directory: Interpretation of the law - The literal rule.
There is way of understating the importance of this point. If a local authority makes any kind of regulation in any way, it needs to have them formally confirmed by Scottish Ministers before they have any legal effect. John Swinney MSP has responded to several questions about regulations tabled at the Scottish Parliament by Dr Nanette Milne Msp on behalf of local allotment holders recently. The text of the questions and the answers can be seen on this web siteQuestions & Answers Search .
There is a specific question about regulations for rent
S3W-30502 - Nanette Milne (North East Scotland) (Con) (Date Lodged Thursday, January 07, 2010): To ask the Scottish Executive whether local authority allotment tenants who have been charged rent as a result of the implementation of regulations that have not been confirmed by the Scottish Ministers in terms of section 6(1) of the Allotments (Scotland) Act 1892 are entitled to have these rents repaid to them.
Answered by John Swinney (Friday, January 15, 2010): 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. It would be for the local authority to resolve with its allotment holders the issue of rent collected in this manner.
Bottom line.
There is absolutely no justification for the City Council refusing to return the rents improperly/illegally demanded and collected from allotment holders. It is abundantly clear that a local authority cannot legally enforce any informal rules/regulations that it uses to manage its allotments. It can only legally enforce regulations it has made if they have been formally confirmed by Scottish Ministers after publishing and full public consultation . The City Council has admitted it does not have, and never has had any regulations for its allotments.
John Swinney in response to another parliamentary question indicated that no local authority has asked to have regulations confirmed.
In the meantime, the struggle goes on to convince the City Council. Copies of recent emails sent to Mrs Sue Bruce, chief executive of Aberdeen City Council can be seen on the latest news page latest news.
17 January 2010
My letter of 18th January, which you can see by following this link latest news was acknowledged as having been received at Holyrood on 11th January. A reply will be sent to me as soon as possible. In the meantime I've asked that the following comment be considered along with that letter. " "If it is the literal, ordinary and normal meaning of a word which should be used, the lowest level of the meaning of a regulation would be - something or anything that has the effect of regulating"
If you are a Scottish Allotment holder, please see our latest news page.latest news
8 January 2010
Some recent information given to a member by email
Aberdeen Forward was recently awarded a cash sum of £25,000 from the Climate Challenge Fund for remediation of vacant allotments throughout Aberdeen. This basically covers the salary of one employee who will be involved in this project. Any works to be carried out will be done by volunteers. It is a one year project. As soon as I heard about this, I got in touch with Aberdeen forward and have since met with the staff member involved - Corrie Cheyne. I managed to get in before anyone else and the unlettable plots at Sclattie and at Bankhead are to be first in the queue for remediation. It is intended that work will start sometime in February but obviously weather permitting. I don't know about you but if no other plot had been available, I would happily have taken one on even if underneath trees.
It is hoped that three plots at Sclattie and three at Bankhead can be cleared and help reduce the city waiting list.
We have been told by Council Officers that no monies are available for any expenditure on Allotments and that we should try to find external funding from Supermarkets, Oil companies and the likes. Totally unsatisfactory but with the City Finances in the state they are in it is something we have to live with. We will ask that your concerns be noted though.
However, having said that, I wrote to Asda at Dyce on 4th January asking if the ASDA Foundation would be prepared to help meet the cost of water installation at Bankhead. I'm led to understand that the ASDA Foundation does help with local projects and we are local to Dyce so fingers crossed.
I have asked the Council if they will do any necessary excavation works by way of in kind help if we can raise the money to pay for the connection to the mains water supply and the materials.
If anyone can suggest any other possible sources for funding or other fund raising ideas, please let me know.
Very late in December, while attending a meeting of Torry plotters, I discovered that Community Councils had funds to make small improvement grants to local organisations but that if these funds were not paid out by the end of the year, they would be clawed back by the Council. I first of all established that Bucksburn and Newhills CC did have such funds and in the knowledge that it is pointless clearing unfenced plots at Sclattie, (remember we have no perimeter fencing) I obtained prices for fencing materials and asked the Community Council if they would cover the cost if we did the work. The Community Council was happy to oblige and I am presently waiting for our treasurer to collect a cheque from me for £394.51 which covers the whole cost of the materials exc carriage. I'm led to understand that virtually cleaned the CC out and these grants will not be available in future. There is a fly in the ointment. The Council has yet to approve the fencing works and if approval is not forthcoming, the money will have to be paid back. In addition to the fencing, we intend planting hawthorn hedge plants to create a living green fence for the future.
Is it contact details of all site reps throughout the City you are looking for? Bucksburn is treated as one site because of our Association and at the moment, our Chairman, Dave Smith and I are carrying the local mantle after attending the first meeting to try to encourage other sites to form their own associations.
Let me know if you need any further explanations or if you have any further comments.
Frank Taylor
18 December 2009
Anyone who has been a regular visitor to our web site will be aware that we have been in dispute with the City Council after having swingeing increases in rent imposed without prior notice in two successive Council budgets. After it became obvious that there was to be no meeting of minds with the City Council Solicitor, the matter has rumbled on in the background with efforts continuing to achieve a resolution. The issue has moved from being something which affects Aberdeen City Council and local allotments, to being something which has extremely serious implications for all Local Authorities in Scotland which have allotments under their control. A letter has recently been sent to Mrs Roseanna Cunningham MSP, the Cabinet Secretary with responsibility for the Environment. The detail is shown on the latest news page latest news. A copy has also been sent to Mrs Sue Bruce, Chief Executive of the City Council.
17 December 2009
Our Secretary attended a debate at the Scottish Parliament on the subject of Allotments. He was treated to a coffee in one of the cafeteria courtesy of local MSP Dr Nanette Milne who has asked several questions of the Scottish Executive on our behalf recently. Was also given a short tour of the Parliament building. Have to confess to being very impressed but after the mega millions spent on construction would have been disappointed had I not been.
8 November 2009
We hope to issue the first edition of our newsletter very shortly. It is presently in draft form being proof read.
6 November 2009.
We have managed to have yet another point with which we were at variance with Aberdeen City Council clarified
Section 14. of the Allotments(Scotland) Act 1892 provides as follows Register of tenancies.
The local authority shall cause a register to be kept showing the particulars of the tenancy, acreage, and rent of every allotment let, and of the unlet allotments, and such register shall be open to the examination of ratepayers in the burgh or the [1. parish], as the case may be in such manner as may be prescribed by the regulations made under this Act by the local authority, and any ratepayer of such of such burgh or[1. parish], without paying any fee, may take copies of or extracts from such register, and within one month after the fifteenth day of May in every year the local authority shall cause an annual statement showing their receipts and expenditure under this Act in respect of the year ending on that day, to be deposited at some convenient place in the burgh or [1. parish] to which the statement relates, and any ratepayer may without fee inspect and take copies of such statement.
The following enquiry was put to the Information Commissioner - Scotland
' It is my understanding that nothing in the current Data Protection Legislation prohibits a Local Authorities from fulfilling its obligations under any other legislation. Are you in a position to confirm my understanding or otherwise clarify the matter?'
The answer received is clear and unambiguous. The text of the email received from the office of the Information Commissioner - Scotland is as follows
'28th October 2009
Case Reference Number ENQ0275897
Dear Mr Taylor
Thank you for your email of 25 October 2009.
Your understanding that nothing in the Data Protection Act 1998 prohibits a Local Authority from fulfilling its obligations under other legislation is correct.
Should you wish to contact us about this matter please quote the above case reference number. Failure to do so may delay the processing of your request.
If you require any further advice or assistance please contact us on the telephone number below.
Yours sincerely
Anne Gordon
Advice Officer
Information Commissioner’s Office - Scotland
93-95 Hanover Street, EDINBURGH, EH2 1DJ
Telephone: 0131 301 5071
www.ico.gov.uk
15 October 2009
Our visit to the new Fire Station was extremely informative and we must extend our thanks to the Fire Brigade staff for making our visit such an interesting and enjoyable experience.
1 October 2009
Our members have an invitation to visit the new Fire Brigade Building on Anderson Drive on 14th October at 6.45 pm. Members please contact the Secretary franktaylor@bucksburnallotments.co.uk to let him know if you can attend so that we can provide an estimate of numbers
14 June 2009
Really good to see plot 6 at Sclattie with a new tenant. The plot has been a disaster for the last three years and only recently vacated. Council employees have sprayed the plot with round up or similar and the vegetation is rapidly dying back but a huge amount of work will be needed to get this plot back into production. Good luck and much enjoyment to the new tenant.
13 June 2009
Apologies to interested persons for the failure to keep our site updated. Matters relating to our rent dispute withh the Council are still ongoing albeit in the background. A resolution will depend on the interpretation of the relevant parts of Allotments law. Unfortunately the responsible Scottish Minister - John Swinney declined to give any guidance and we are not in a position to be able to afford to pay for legal advice. Possible benefactors please step forward.
On the practical side, Council Officers seem keen to meet with us and with representatives from other sites in the City. Our own Association has already had a useful but largely unproductive meeting with them. The main problem being that Councillors have declined to make funds available for Capital Improvement works on City Allotment sites.
26 April 2009.
One of our elderly members who has health problems is struggling to look after his plot on the Sclattie Quarry Allotment site. He is prepared to share his plot with an enthusiastic vegetable gardener. The plot is presently in a very bad state and a lot of work will be required to get it back into cultivation. The real downside is that anyone sharing a plot with an existing tenant in this manner will not be able to take over the plot in the event of the tenant giving up the plot for any reason so there is a distinct element of risk. If interested please contact our secretary franktaylor@bucksburnallotments.co.uk and he will put you in touch with the allotment holder.
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The benefits of forming an Allotments Association are now becoming obvious to our members. A local garden Centre has agreed to allow a discount to our members on production of our membership card. A further indication was the willingness of Council Officers to meet with all of our members on 23rd April to discuss a variety of issues giving rise to concern following some serious vandalism involving one shed being broken in to and another two sheds burned to the ground. Although we weren't necessarily given the answers we wanted, we nevertheless did get answers and a big thank you to the Council Officers for taking the time to meet with us.
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Our inaugaral General Meeting was held at Bankhead Academy on 11th March 2009. The draft minutes of the meeting and the agreed Constitution document will shortly be circulated to members.
Drew Levy has around half a dozen shed alarms which can be made available to new members on a first come first served basis. To reserve a shed alarm, contact Drew by email - lairddrew.levy@talktalk.net
Check out the latest news page latest newsto learn what is happening about the Rent situation other than what is detailed below
Our deputation to the Council meeting on 11th February consisted of Mr Sandy Inkster from Cults, a plot holder at Garthdee, Drew Levy and Frank Taylor both from Sclattie Quarry. In the event, after hanging around for more than 4 hours, Sandy and Frank had to leave, the heavy snow at the time being an influencing factor as also was the fact that an adjournment had been called and if the speed of previous proceedings was a yardstick, after the adjournment, there was at least an hour of questions and debates on other matters before they would be able to get around to the Allotments situation. Drew however was able to stay and he delivered a pre prepared statement the contents of which can be seen by clicking on the following link. Council Presentation1 Drew reports that although many Councillors spoke in favour of the Allotments they voted 30 to 10 in favour of the proposed £20 rent increase.
A huge thanks to Drew. That makes it twice in the course of a week he has been left alone to fight our cause but he has done very well for us.
We remain convinced that the Council does not have a legally set rent and representations are being made in other places on this matter.
The City Council has developed a new Web Page on the Council website for Allotments. There is a link to that web page on our useful links page.Useful links. The new page is a huge improvement on what was there before but disappointingly, it does not make any reference to the right of tenants to be able to pay only 25% of Rent in advance. Also the size of the plots shown on that web page is innacurate and this has been drawn to the attention of Council Officers.
Brilliant News
Our view that the Council was illegally demanding 100% of the annual allotment rents in advance has been accepted by Aberdeen City Council. In an email dated 4th February, Mrs Sue Bruce informed us that with regard to section 10(2) of the Allotments (Scotland) Act 1950 (as amended), the City Solicitor has advised that this section prohibits the demanding of more than a quarter of the rent in advance.( as we stated) As a consequence measures will be taken to permit tenants to have the option to pay quarterly or annually.
We have asked that Allotment tenants be informed of their right to pay only 25% of the rent quarterly in advance without any delay. This will be of major help to plot holders across the City with their budgeting requirements.
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A huge warm welcome to anyone having a look at our website as a result of receiving a letter forwarded on our behalf by Aberdeen City Council. Welcome also to other visitors.
The Council says it is too expensive to communicate essential information to allotment tenants. Our view is that we now live in a digital age and there is no reason why essential information cannot be displayed on the Allotments page on the City Council website. We also think that many tenants can be contacted by email thereby eliminating stationery and postage costs.
The more members who have email facilities, the more we can pressurise the council to communicate by that method so we are happy to supply all our members with email facilities via this web site. If members do not have their own computers at home, the web site can be accessed using computer facilities at Aberdeen Libraries .
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