Important Note. The information on this page is structured so that the most recent information will always be at the top of this page and the earliest at the bottom. If you want to see how matters have developed, start at the bottom and work your way upwards.
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This next part is very very important. Please read it in detail.
Section 6(1) Allotments(Scotland)Act 1892 reads "Subject to the provisions of this Act, the local authority may from time to time make, revoke, and vary such regulations as appear to be necessary or proper for regulating the letting of allotments under this Act, and for preventing any undue preference in the letting thereof, and generally for carrying the provisions of this Act into effect; and such regulations may define the persons eligible to be tenants of such allotments, and the notices to be given for the letting thereof, and the size of the allotments, and the conditions under which they are to be cultivated, and the rent to be paid for them."
later in that sub-section the following words are added."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."
If any "informal rules and regulations" are made by a local authority and they cannot be enforced because of the provisions of section 8(2) Allotments(Scotland) Act 1892 and Section 1(4) of the 1922 act, it becomes clear no local Authority can manage its allotments without regulations that have been confirmed by Scottish ministers.
Anyone have a different opinion. If so , use the contact us pageContact Us and let us know.
3 February 2010
This further email was sent to the Chief Exec. of Aberdeen City Council today.
Dear Mrs Bruce,
Since writing to you yesterday, the provisions of section 8(2) Allotments(Scotland) Act 1892 which relate to the statutory provisions for recovery of rent and possession of allotments has been brought to my notice. 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"
Section 1(1.4) of the 1922 act which deals specifically with Allotment Gardens refers only to resumption on account of 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.
No provision is made for termination by reference to any other form of regulation.
The conclusion surely is that the City Council cannot enforce any of the rules and regulations contained in the allotments missive of let because these rules and regulations have not been confirmed by Scottish Ministers in terms of section 6(1) of the 1892 Act. Likewise the other forms of regulations I referred to in my email of 2nd February.
I would be grateful if you would also forward this email to the City solicitor
Frank Taylor
3 February 2010
The following email was sent to Mrs Sue Bruce Chief executive of Aberdeen City Council on 2nd February. The differences between us are detailed in the email ( as they are now presently understood). As you will see, various suggestions have been made to try to progress matters.
Dear Mrs Bruce,
You may be aware that as a courtesy I sent Mr ******** copy the email I sent to to you of 18th December.
Although it was never my intention to engage in correspondence about the matter with Mr ********, he did respond to me and we did subsequently exchange a few emails. It has become apparent, that the Council is relying on the word "regulations" as referred to in Section 6(1) Allotments( Scotland ) Act 1892 meaning formal regulations of the type required for secondary or delegated legislation and that there is no other possible meaning.
I have been informed that the Council has made no regulations for the management of its allotments. Am I now correct in assuming that the Council intended to convey that it had made no formal regulations of the kind Mr ********* referred to?
If that is the case, it clarifies the reason for the dispute between us to a degree. However, it does not change my view, that if a local authority makes any kind of regulation in any way for the management of its allotments, it requires to go through the process of publishing, inquiry and having them confirmed by Scottish Ministers to be able to enforce them. In other words, my view is that if the Council has made any kind of regulation in any way, it requires to convert them to the kind of formal regulations that Mr ********refers to, to enable them to have any legal effect.
It is clear that the Council does regulate various matters and to clarify why I have used the words “makes any kind of regulation in any way for the management of its allotments”. I have used the words “any kind of regulation” because there are many synonyms of regulation all of which have the same effect of regulating.
I have used the words “in any way” because the Council has made/amended regulations for allotments in a number of different ways.
1. By making rules in the Council Chamber which thereafter regulate rent for allotments (setting a rent)
2.By making rules/directives in sub- committee and thereafter maintaining them - type and use of buildings
3.By inclusion of rules and regulations on the missive of let
4. By the intervention of Council Officers who have made/amended rules(relating to control of waiting lists and the disposal of rubbish generated on allotments and possibly other matters).
5. By making and publishing changes to the size of allotments that are liable to be charged rents at the rates applicable to full, three quarter and half sized plots.
It is possible that the Council has also made other regulations using other methods
For the avoidance of doubt, when I made a freedom of information request relating to regulations, I did mean any kind of regulation made in any way used by the Council for the management of its allotments.
(I appreciate that anecdotal views have no effect but I have been told by some of the really old plotters that it was their understanding that bye laws were required for rent increases. You may also care to note from this web siteThe Poultry Guide - Hens on Allotments in Scotland the view that if a council has local rules to specify that no livestock or hens are allowed, that bye laws are required.)
If the Council has not already taken external expert legal advice as to the interpretation of Section 6(1), will it now consider doing so?
I have tried to establish whether there is some form of arbitration or other non adversarial procedure that is available to enable the matter to be resolved. There does not appear to be any available procedure specified in the allotments legislation and the office of the Local Authority Ombudsman has confirmed that they will not act as an arbiter.
Is the City Solicitor able to advise whether there is a “friendly” procedure available under the Auspices of the Sheriff Court which can be used to obtain an adjudication?
If there is no such available process, I am prepared to submit myself to be the “subject” of a Court Action at the hands of the Council, either for recovery of rent due for one of the three half sized allotments that I rent from the Council or for recovery of possession of that allotment necessary because of my failure to pay rent for it, which will have the similar effect of resulting in an adjudication.
I have today paid to the Council the sum of £17.50 being the second 25% instalment of rent due by me for plots 14 and 15 at Sclattie Quarry. I shall pay nothing further for plot 16 until the matter is resolved.
I do hope that matters can be resolved without recourse to the courts.
For the avoidance of doubt, I have not sent a copy of this email to any other council employee nor shall I do so
17 January 2010 My letter of 18th January below, 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"
16.As stated below, the question of whether Aberdeen City Council has made a Regulation for rent is the crux of our dispute with the Council. On researching the matter earlier, an attempt was made to find a legal definition and the search results on the internet were disappointing. We remained confident that regulations had been made. The rent is regulated so there must be regulations. Recently a further search was made, this time simply for a definition of a regulation and we found exactly what was needed in the English Oxford Dictionary. We have also found a similar definition in a 1888 dictionary just to be certain that the meaning of the word hasn't changed over the last century. A letter, a copy of is shown below has been sent to Mrs Roseanna Cunningham MSP Minister with responsibilty for the environment.
LETTER Referred to above
Mrs Roseanna Cunningham
Cabinet Minister for the Environment
Scottish Parliament
Holyrood
Edinburgh
18/12/2009
Dear Mrs Cunningham
Further to the debate on Jim Tolson’s motion on 17th December, I think it appropriate that I should address some comments to you.
You are of course aware that Local Authorities and Allotment holders are in doubt as to what constitutes making a regulation as referred to in section 6(1) of the 1892 Act. Indeed Aberdeen City Council has stated to me that they have no regulations relative to Allotments. My view all along has been that various matters including rent are regulated so there must be regulations. In attempting to clarify the matter, various questions have been asked of the Scottish Executive and your colleague John Swinney has provided some answers. In his answer to question S3w29651 Mr Swinney used the words ‘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.’
I agree with Mr Swinney that Regulations are not defined in the legislation and that each Local Authority must decide whether it wishes to make them. I do not propose to make any observation to the comment about how a Local Authority makes Regulations as the issue is not how but whether or not a Local Authority makes Regulations. If a Local Authority does make Regulations, the procedures described in Section 6(1) of the 1892 Act culminating in having them confirmed by the Secretary of State for Scotland - now Scottish Ministers - must be followed. If these procedures are not followed, section 6(1) makes it absolutely clear that any Regulations made are to be treated as if they had not been made. Mr Swinney has indicated that no Local Authority has asked for Regulations to be confirmed.
Turning to the meaning of a Regulation, I have already agreed that there is no definition in the legislation. Neither have I found any reference to Regulation in the Interpretation Act 1978. My research on the internet has led me to information which describes how the Courts deal with such cases when a legal interpretation is required. I understand that the first approach used by the Courts is to use what is known as the 'Literal Rule'. Under this rule, words must be interpreted according to their literal, ordinary and natural meaning - see IRC v Hinchy (1960).
With the benefit of this knowledge, I checked the Oxford English Dictionary and found the following definition - a rule or directive made and maintained by an authority. Just to be sure that the word Regulation had the same meaning at the time the 1892 Act was being considered and later passed into law, I also obtained a definition from the Encyclopaedic Dictionary Vol.V1(part1) Cassell and Company Limited 1888 - 3. A rule, order or direction from a superior or competent authority regulating the action of those under their control;
There is no doubt that Aberdeen City Council is an authority and there is no doubt in my mind that Aberdeen City Council (as with other Scottish Local Authorities) has made/amended Regulations which have not been confirmed by Scottish Ministers. If I am correct, most Local Authority Allotments in Scotland, not just those in Aberdeen are being managed without legal authority and rents collected from Allotment tenants all over Scotland will require to be repaid to them.
The obvious question is ‘where does this go from here?’ I assume you will in the first instance wish to confer with Mr Swinney and that thereafter it may be necessary for legal advice to be taken. I recall that in answer to a question put to you at the SAGS conference at Dunblane earlier this year, you explained that Ministers would not wish to intervene unless a local authority was ‘so far outside its vires’. If I am correct in my interpretation of the legislation, this stage has been reached and Ministerial intervention is surely inevitable. The situation needs to be determined quickly so that proper and legal management of Scotland’s Local Authority owned Allotments can be restored. Local Authorities will need to be informed and steps taken quickly to initiate the procedures detailed in section 6(1) so that all necessary Regulations can be put into place with the minimum of delay.
I have sent a copy of this letter to the Chief Executive of Aberdeen City Council. Although our relations with the Council and its officers were very strained for a while, we are now happy to engage with them as part of a recently formed city wide Allotment Sites Representatives Group (which we hope will develop into a Federation of Allotment Associations) and be involved in trying to improve the City Allotments even although we have yet to agree about rent. Our discussions with Council Officers have already led to proposals for creation in Aberdeen of smaller plots for beginners to allow them to find out about cultivating allotments before moving on to bigger plots. Once allocated an Allotment for the first time, many experience a severe reality check and discover that really hard work is involved in growing vegetables. Many give up after the first year leaving the plots in poor condition which leads to problems in re-letting. It is hoped that this initiative will reduce such problems. Proposals have also been mooted for the creation of small plots for elderly and less able plotters who are struggling with half or full sized plots, to enable them to downsize yet still retain an interest. This initiative may have the added benefit of providing useful reductions in the waiting list as well as help prevent the condition of plots deteriorating.
In the first instance, I would be grateful if you would acknowledge receipt of this letter and as soon as possible thereafter let me have a substantive reply.
Frank Taylor
Secretary
Bucksburn Allotments Association
44 Cruickshank Crescent
Bucksburn
Aberdeen
AB21 9BT
15. Disappointingly, John Swinney MSP has given this matter a body swerve and referred the matter instead to a civil servant who has provided a non commital response.
14. John Swinney MSP, Cabinet Secretary has been asked to advise on the matter referred to at item 13 below. It was Mr Swinney who earlier confirmed the City Council was not legally entitled to demand more than 25% of Allotment rents in advance. Mr Swinney has also been asked to advise on the matter of access to the Register of Tenancies the City Council is required to keep in terms of the Allotments legislation.
13. The City Solicitor disputes our contention that Aberdeen City Council has made any Regulation for Rent. This legal point is the crux of our dispute with the Council. Steps are being taken in the background to obtain a definitive answer.
12. We are totally convinced that the Council presently does not have a legally constituted rent.
An email detailing our reasoning was sent to Mrs Sue Bruce, Chief Executive of Aberdeen City Council on 7th February 2009 with a request that it be forwarded to the City Solicitor and also to such elected members as may be involved in budget matters.
The text of that email is as follows :-
Hi Mrs Bruce,
I have applied to be heard as part of a deputation on behalf of our Allotments Association at the full Council Meeting on Wednesday.
In the meantime, as the ten minutes allocated to deputations will not be nearly enough,I've compiled some emails detailing many of the salient points and these emails are being circulated on my behalf to all elected members prior to that meeting. You may also be on the list of recipients in your capacity as Chief Executive.
I think it would be helpful, not just to me but also to Council Officers and Elected Members if the City Solicitor was able to take a view on the regulation question before Wednesday's meeting. In that regard, I would be grateful if you would forward a copy of this email to the City Solicitor.
I have detailed my view below and although the City solicitor may not agree with me, my comments may nonetheless be of some assistance.
The Allotments Legislation affords Allotments and Allotment holders a very real but almost unbelievably high level of protection. The whole tenet of the legislation is that allotments are intended to be provided very cheaply and that allotments and allotment tenants would be protected. The directive to take account of the value of agricultural land in the area certainly supports the idea of peppercorn rents and of course the legislation was originally set up for the benefit of the labouring classes, in other words the poor. It was clearly recognised that allotment tenants might at some point need protection from local authorities and hence the level of supervision, then from the Secretary of State for Scotland - now from Scottish Ministers.
It is clear that Local Authorities can make any regulations they wish for the management of their Allotments. However it is also very clear that any regulation made shall not be of any force unless and until unless Ministerial approval is obtained after such publication and inquiry and with such modifications(if any) that Ministers shall determine.(Section 6(1) Allotments(Scotland)Act 1892.)
There is no doubt that setting a rent is making a regulation. The rents set last February were not published, there was no inquiry and Ministerial approval was not obtained. The same situation applies to the rent set and applied in 2002.
In my opinion Aberdeen City does not presently have a legal rent for Allotments because Ministerial approval has not been obtained.
I'm not sure what level that takes us to now. If my opinion is correct, my instinct tells me that Allotment holders must have any rents collected from them refunded but how far back is a different matter. (Does prescription come into play if monies are obtained by the application of something which on the face of it is not legal?.)
If I am correct, there will of course be a detrimental effect on the Council's budgeting requirements which may need to be addressed.
If you consider it appropriate, would you also forward a copy of this email to such elected members as may be involved in budget matters.
Kind regards
Frank Taylor
(Acting Secretary)
Bucksburn Allotments Association
end of email
11. Delegations to Council meetings are only allowed 10 minutes to make their point to Councillors. Our situation is complicated and because Council officers chose not to consult with us beforehand, there is a lot to address which couldn't possibly be done in the time available. To get past this obstacle and because there is a need to inform Councillors, emails containing much of the salient details are being circulated to Councillors. Some of the emails are large.
For ease of reference, the text of the first email which summarises the issues is detailed below. To show the other emails here would totally dominate this page and make it difficult to follow what is going on. Separate web pages have therefore been created and these can be accessed either by using the following links
email about Equality and Human Rights Impact Assessment
email about inaccurate and incomplete benchmarking data
email about Legal Procedures and costs This page in particular demonstrates that it could well cost more to implement the proposed rent increase than the Council would obtain in additional rents.
or by clicking on the links on the menu at the left hand side of this web page.
Text of summary email is as follows
''Unfortunately, it was not possible for me to attend the Resources Management Committee meeting as part of a delegation and to address the Committee Members because of the weather on 5th February 2009.
Before the meeting it had become apparent
a. that the information supplied in the report prepared by Council Officers was seriously flawed and incomplete.
b. That the proposal to increase allotment rents detailed in the report was not in accordance with the Council’s Allotments Management policy published on 7th October 2008.
c. That the proposal, detailed in an Equality and Human Rights Impact assessment dated12th November 2008 should without any stretch of the imagination have failed the proportionality test which is part of that assessment. Also within that assessment document, the stated objective is not met by implementation of the proposed increase.
d. That the proposal was actually put forward without considering the requirements of the Allotments Legislation and that matters required to be considered as a consequence of that Legislation had been ignored.
e. That the amount the Council would gain from implementing the proposed increase might well be less than the costs of implementing the increase.
I have asked that this email be forwarded to all elected members now, so that they are immediately aware of the problem areas highlighted. The flawed and incomplete information referred to in a) above has had the effect of giving the wrongful impression that allotments in Aberdeen are almost twice the size of allotments in Edinburgh and Glasgow and has been shamelessly used to demonstrate that Allotment rents in Aberdeen compare favourably with Glasgow and Edinburgh when nothing is further from the truth.
I am informed that the matter is to be brought up again at a Council meeting next Wednesday and it is my intention to once again apply to have a deputation heard and at that stage to give full details.
Frank Taylor
(Acting Secretary)
Bucksburn Allotments Legislation
(end of email)
10. 5th February. Unfortunately Frank Taylor our acting secretary was caught up in the bedlam on the roads caused by snowfall this morning and was unable to attend the Council's Resource Management Committee meeting where he was supposed to head a delegation of Allotment Holders. In the event, Drew Levy was our only member able to be present. Drew reports that the Council is to afford an opportunity to raise our concerns up to and including 11th February.
Nothing has been lost today apart from an opportunity to address Councillors as the crucial decision won't be made till next week.
In the meantime, Frank intends appraising all City Councillors of our concerns before next Thursday. Copies of any emails he sends to councillors will be posted on this website.
9. 4.30pm on Wednesday 4th February. A reply at last received from Mrs Sue Bruce, Chief Executive of Aberdeen City Council. The reply is by no way substantive but it has progressed matters and on behalf of all our members, thanks go to Mrs Bruce for her help to date.
Two points have been ticked off from the list of complaints. :-
a)Council Officer Norrie Steed has informed Mrs Bruce that he has categorically denied our suggestion that the Council's rent increases are designed to reduce allotment demand. She says she supports him in this denial.
b)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.
Mrs Bruce has been told that as matters are agreed between us and finalised, We would like to have confirmation on Council headed paper and trust she will be able to co-operate in this way.
The most important point we would prefer to have settled with the minimum delay is the question of whether the Council is obliged to consult, publish and obtain the authority of Scottish Ministers to formally constitute rent increases.
Mrs Bruce states "Finally with regard to Ms Gresswell's e-mail, this would only apply if the Council had put in place regulations under the appropriate legislation. After significant research it would appear that no such regulations have been put in place. Therefore any change in rent would not require Scottish Ministers' consent."
The following response was sent
"My view is that simply by determining and applying a rent, the Council will have created a regulation.
That being the case, the final sentence of s6(1) of the Allotment Scotland Act 1892 comes into play.
The issue to be determined is whether my contention is correct and a resolution of this point will flow from that.
The City solicitor will no doubt advise after researching the matter.
Frank Taylor
(Acting Secretary)
Bucksburn Allotments Association"
Please don't get your hopes up but if we are correct here, not only must the Rent increases passed last February and implemented at the end of November be treated as illegally based, but the increases applied in Novemeber 2002 must fall into the same category. Fingers crossed everyone.
8. 4.00pm on Tuesday 3rd February and still no detailed response from Mrs Sue Bruce, Chief Executive of Aberdeen City Council despite a further reminder being sent.
The Council's Resources Management Committee is to discuss the Allotments situation on Thursday morning. Our acting secretary will attend along with another allotment tenant from Garthdee and an application has been made to be able to address Councillors.
7. Some tenants unhappy at receiving reminders for unpaid rent have telephoned Aberdeen City Council and pointed out that legally, the Council is not entitled to seek payment in advance of more than 25% of the rent as set out in Section 10(2) of the Allotments(Scotland)Act 1950. It has also been pointed out that we feel that the rent increases implemented at the end of December 2008 were not legally constituted.
Mr Stan Sherwood of Aberdeen City Council sundry debt section is aware of the situation and can be contacted by telephone - 01224 814877. He has stopped the issue of reminders for some tenants.
6. As at 5.30pm on 30th January 2009, a substantive reply from Mrs Sue Bruce, Chief Executive of Aberdeen City Council was still awaited.
An email containg the following text was sent to Mrs Bruce on 30th January 2009.
Hi Mrs Bruce,
I do apologise for pressing you but I am told the question of Allotment rents is on the Agenda for discussion next Thursday.
If the Council is able to accept that it did not follow the correct procedures to secure the rent increases decided by the Council last February and implemented at the end of November 2008, (which should have culminated by obtaining the approval of Scottish Ministers) then matters will be simplified as anything decided this time around will then have to go through the necessary procedures and allotment holders need not make any representations to the Council at this stage.
Are you able to say whether the Council either accepts or rejects the allegation that it did not go through the correct procedures?
I look forward to hearing from you.
Frank Taylor
5.An email containing the following text was sent to the Chief Executive of Aberdeen City Council on 23rd January 2009.
Dear Mrs Bruce,
I am becoming concerned at the time it is taking to obtain a substantive response to the various points at issue. I do realise that some of the matters are complex and that the advice of the City Solicitor has been sought, but time is a real issue given the rapidly diminishing window of time up to the Council budget meetings in February.
As a minimum, is it possible to respond to the points which are able to be resolved and to detail why there is difficulty with the remaining points?
I don't know if you are aware that reminders for outstanding rent invoices were issued by the Council last week and that the Council continues to demand the whole rent in advance despite being informed that particular practice is in breach of allotments law.
I look forward to hearing from you
Frank Taylor
acting secretary
Bucksburn Allotments Association
Mrs Bruce subsequently responded and indicated she is due to discuss matters with the City Solicitor on Monday (26th January 2009) and will respond thereafter.