Allotments: guidance for local authorities

Introduction

The Community Empowerment (Scotland) Act 2015^[1] (“the Act”) was brought forward with the aim of empowering our communities by enhancing the rights of community bodies and placing new duties and functions on public sector authorities.  

The implementation of the Act will help empower communities across Scotland and should increase access to land for food growing purposes, be that on allotments or through any other Grow-Your-Own initiatives.

Policy Framework 

In 2009 the Scottish Government published ‘Recipe for Success’, its first national food and drink policy. This policy made a clear commitment to support, strategically,

allotments and community growing spaces. To help the Scottish Government meet this commitment, the Grow Your Own Working Group was established in 2009. One of this working group’s recommendations was to amend the legislation relating to allotments and specifically to review the duties placed on local authorities.

The SNP Manifesto in 2011 made a commitment to bring forward a Community Empowerment Bill and to update the legislation relating to allotments. This commitment acknowledged the view that the legislation was outdated and that the demand for suitable land to allow people to grow their own food continued to be high. 

The next phase of the Scottish Government’s national food and drink policy, ‘Becoming a Good Food Nation’, was launched in June 2014. This document highlighted the successes of Scotland’s first food and drink policy whilst recognising the continuing challenges within Scotland’s food and drink sector. ‘Becoming a Good Food Nation’ set out the policy objective that everyone in Scotland should be able to buy, eat and serve food that is affordable, healthy and sustainable.   

In 2015, prior to the passage of the Community Empowerment (Scotland) Bill, the Scottish Government made a commitment to stakeholders to establish a tripartite group. The aim of the tripartite group was to develop constructive dialogue around Part 9 of the Bill and monitor the early stages of Part 9 implementation. 

A tripartite group was established, consisting of representatives from Scottish Government, local authorities and the Scottish Allotments and Gardens Society. The work of the tripartite group has helped shape this guidance document. We are grateful to the tripartite group, greenspace Scotland, local authority colleagues and others who have helped to shape this guidance through their comments and feedback.

Grow-Your-Own (GYO), be it on an allotment or community garden, can increase access to affordable, healthy, sustainable food; a key aspect of the national policy set out in ‘Becoming a Good Food Nation’.

Legislative Framework

Part 9 of the Act^[2] consolidates, updates and simplifies the previous statutory regime regarding allotments by bringing it together in a single piece of legislation. It requires local authorities to take reasonable steps to provide more allotments if waiting lists exceed certain trigger points and ensures appropriate protection for local authorities and plot-holders. Part 9 replaces and repeals various statutory provisions including the Allotments (Scotland) Acts 1892, 1922 and 1950 in their entirety and some provisions of the Land Settlement (Scotland) Act 1919.

An allotment is defined in Part 9 of the Act as land that: 

• is owned or leased by a local authority (or leased or intended for lease by a person from the authority);
• is used or intended for use wholly or mainly for the cultivation of vegetables, fruit, herbs or flowers; and
• is used or is intended for use otherwise than with a view to making a profit.

An “allotment site” is defined in Part 9 of the Act as land consisting wholly or partly of allotments. The definition makes clear that an allotment site includes other land owned or leased by a local authority that may be used by tenants of allotments in connection with their use of allotments.

For the purposes of this guidance, the term “site” has the same meaning as “allotment site”.

In addition to the functions conferred by Part 9 of the Act, local authorities have powers under section 70 of the Local Government (Scotland) Act 1973 (“the 1973 Act”) to acquire land (by agreement) for the purposes of the benefit, improvement or development of their areas^[3]. Section 73 of the 1973 Act enables a local authority to appropriate, for the purpose of any functions, land already vested in them for the purpose of any other function^[4].

Purpose of this Guidance 

Section 137 of the Act requires that a local authority have regard to any guidance issued by the Scottish Ministers about the carrying out of functions conferred on the authority by Part 9 of the Act.

The Scottish Ministers consider that it is not necessary to issue guidance in relation to all provisions found in Part 9 of the Act. Ministers have, however, identified a number of sections in the Act in relation to which they consider that guidance would assist local authorities in carrying out their duties.

This guidance is issued with the purpose of assisting local authorities in the carrying out of their functions under Part 9 of the Act. This guidance is advisory only and does not impose legal obligations on local authorities. If there are conflicts between the content of this guidance and the provisions of the Act or any secondary legislation made under the Act, such binding provisions should take priority. The interpretation of legislation is ultimately a matter for the courts.