3. Compensation for disturbance
Section 3 of the Allotments (Scotland) Act 1950 provides that where a tenancy for the whole or part of an allotment garden is terminated, in certain circumstances the tenant is entitled to compensation from the lessor for the disturbance caused.
The amount of compensation recoverable is dependent on whether the tenancy for the whole or part of the allotment garden is terminated. Should the tenancy for the whole land be terminated, the level of compensation is equal to one year's rent at the rate at which the rent was payable. Where the tenancy for a proportion of the land is terminated, the compensation payable is the application of that proportion to the year's rent (at the rate at which the rent was payable).
The first set of questions in the consultation sought views on the amount and type of compensation payable for disturbance.
Question 1a) Other than rent, are there any other factors that might be included in determining the amount of compensation payable to tenants for disturbance when the lease of the whole or part of an allotment is terminated?
Question 1b) Why?
Responses to Question 1a) and 1b) have been analysed together as the responses to both are inter-linked.
Overall, 22 respondents addressed these questions, with a wide range of ideas given as to what other factors might be included in determining the amount of compensation payable to tenants for disturbance.
The vast majority considered that factors other than rent might be included in determining the amount of compensation payable to tenants for disturbance when the lease of the whole or part of an allotment is terminated.
The most common factor identified for determining compensation over and above rent was loss of enhancements made by the tenant to the plot and recompense for amenities left behind, or the cost of relocating these where this is possible. 14 respondents across all categories identified this factor, mentioning structures such as fencing; huts; compost bins; water butts; toilet; and raised beds. A shared view was that compensation should be paid for material goods bought by tenants to enhance their allotments, which they would lose due to disturbance.
Another common view was that the level of compensation should reflect the worth of crops and plants of value on the allotment such as roses, fruit trees and herbs. 12 respondents shared this view emphasising that tenants should not be out of pocket for the costs of these plants.
Some respondents (eight across all categories) argued that the length of tenure should be included in determining the amount of compensation payable. This, they felt, would recognise the investment made by individual plot-holders and in particular the increased quality of soil over time with nourishment from manure, compost and lime.
Six respondents representing all sectors other than local government, considered that compensation should take into account the potential negative impact on the wellbeing of the plot-holder should the lease be terminated. Comments included:
"To remove a site causes distress because of the work and nurture the plot-holders have spent on their plots. It is not just the monetary value but the engagement with the land that is lost".
"My allotment is the only place I can rely on going outside my garden-less flat. It keeps me busy and active in a safe environment. I am lover of the outdoors, and need a therapeutic space where I can be left alone at peace. Other spaces and programs typically stress me out as I don't cope with groups or less controlled environments".
Another view was that compensation to the wider allotment community may also be required to recompense for communal investment such as fencing, access roads, meeting sheds, notice boards and toilets. Two respondents (Allot, Ind) cautioned that care should be taken to ascertain who is the actual tenant of an allotment, as on occasions allotment associations hold the lease from the council rather than individuals. One respondent (Ind) identified groups such as schools or people with special needs as holders of tenancies and commented:
"....the ending of an allotment lease could have significant ramifications for users of those groups" (Ind).
Other factors which respondents considered should be taken into account when determining the amount of compensation payable were identified by only a few respondents each, including:
- Regard for any external funding acquired.
- Costs of appeals won by tenants.
- Reduction in accessibility to a new plot.
- Relocation of livestock if permitted.
- Whether tenant is up-to-date with rental payments.
- The status of the allotment, and in particular whether it is short-term (part of the "Stalled Space" programme, or a longer-term opportunity).
The notion of payment "in kind" rather than in monetary terms emerged as a theme amongst responses. To some extent this reflected the acknowledgement that some aspects of allotmenteering cannot be quantified financially, but are particularly valuable to tenants nonetheless. Examples were provided of special resting places within the plot; everlasting supplies of compost built up over years; plants such as grapevines and figs which have grown in greenhouses during the passage of time.
It was suggested by two respondents that compensation may need to take account of individual counselling for tenants who have lost their allotment, or supporting group initiatives where tenants can vent their views and find a way forward.
Question 1c) How should the value of compensation for these different factors be determined?
19 respondents addressed this question.
The most common recommendation (made by seven respondents across all sectors) for determining the value of compensation was the cost of replacing old for new, at least in relation to structures. Other recommendations made by only a few respondents each were:
- Full replacement cost minus wear and tear/depreciation.
- Market value of crops (which will vary by type of crop and time of year).
- Use existing legislation to determine.
- Consult farming communities and/or previous compensation and insurance claims to inform the value of compensation for duration of years of soil management..
- Based on representations from the plot-holder, allotment association and other relevant representatives.
Two respondents (Allot, LG)suggested that receipts be required for proof of original purchase by the plot holder. Another suggested photographic proof for the value of the compensation to be determined.
Question 1d) Within what timeframe should compensation for disturbance be paid?
18 respondents answered this question with a proposed timeframe for compensation to be paid.
There were mixed views on the timeframe for payment of compensation, with recommendations ranging from payment before lease ends to payment within one year of the termination of lease.
Question 1e) In your opinion, under what circumstances would a local authority not be liable to pay compensation for disturbance?
20 respondents addressed this question.
The two most commonly cited circumstances in which respondents considered that local authorities should not be liable to pay compensation for disturbance were if the tenant had neglected the plot to the extent that it is in an extreme state of disrepair (7 mentions); and where the tenancy has been breached, for example, used for a purpose not permitted, or there is evidence of mistreatment of livestock (6 mentions).
Two respondents suggested that a local authority should not be liable for compensation if an allotment association has ceased to function through no fault of the local authority. A further two respondents considered that if an alternative plot is offered within a reasonable proximity to the original plot, then perhaps no compensation should be required.
Several other circumstances in which a local authority should not be liable to pay compensation for disturbance were identified by one or two local government respondents:
- When the site is required for the development of a cemetery.
- If the site was allocated on a temporary basis in the first place.
- Following extreme weather which has caused damage such as flooding.
- Where the site has been identified as at risk of contamination or has been deemed unsafe for food production (e.g. land instability).
- Where the site has not been vacated by the tenant in accordance with the timescale given in the notice.
Two local government respondents suggested that whilst some compensation may be liable, this should not cover labour put into working the land, as allotments are not for commercial benefit. They also recommended that compensation should not cover anything other than rent if the disturbance is only temporary and the local authority intends to reinstate the site.
Three respondents considered that there are no circumstances under which a local authority would not be liable to pay compensation for disturbance. One remarked:
"Even in the case of a neglected plot there should still be compensation due to the allotment association for the wider impact of the disturbance and the negative impact on the growing community" (Ind).
Summary of key points
Most respondents considered that factors other than rent might be included in determining the amount of compensation payable to tenants for disturbance. In particular respondents felt that recompense should be made for enhancements to the plot and amenities left behind by the tenant or the cost of relocating these.
It was common to recommend that compensation should be based upon replacing old for new at least in relation to structures.
Recommendations on the timeframe for paying compensation ranged from before the lease ends to within one year of termination.
A shared view was that where a tenant has neglected a plot to an extreme state of disrepair and/or where the tenancy has been breached, then local authorities should not be liable to pay compensation for disturbance.
Email: Robin MacLean