Allotments: guidance for local authorities
Guidance on certain sections of Part 9 of the Community Empowerment (Scotland) Act 2015: Allotments.
1. Section 110 – Offer to lease allotment
1.1 Section 109 makes provision relating to requests to lease allotments. Subsection (1) provides that a resident of a local authority area may make a request to lease an allotment from that local authority (or sublease an allotment from a tenant of the authority to whom the authority has leased an allotment site). Section 109, as a whole, imposes various requirements in relation to such requests. Subsection (3) requires that the person making the request specify the area of allotment sought if it is less than 250 square metres. Section 110 of the Act sets out rules that a local authority must apply in relation to a request under Section 109(1). Different rules apply under section 110 depending on whether the request specifies an area of less than 250 square metres.
1.2 Subsections (2) and (3) of section 110 apply where a person specifies an allotment of an area less than 250 square metres in a request made under section 109(1). If a person requests a particular size smaller than 250 square metres and is offered this size then the request is treated as having been agreed for the purpose of maintaining the waiting list under section 111(3)(a)(i) (subsection (2)). The person's name will be removed from the waiting list. If a person is offered an alternative size of allotment but does not accept that offer, the request is treated as not agreed to (subsection (3)).
1.3 Subsections (5) and (6) of section 110 apply where a person does not specify an area of allotment sought of less than 250 square metres in their request made under section 109(1). The request is treated as agreed for the purpose of section 111(3)(a)(i) when an allotment of approximately 250 square metres is offered (subsection (5)). The person's name will then be removed from the waiting list. If the person is offered an allotment of other than approximately 250 square metres but does not accept that offer, the request is treated as not agreed and the person's name remains on the waiting list (subsection (6)).
1.4 The term “approximately 250 square metres” (used in section 110) is considered by the Scottish Ministers to mean 250 square metres plus or minus 5%.
1.5 It is possible that a person who requests a lease of an allotment, particularly a larger sized allotment, may not appreciate the amount of effort involved in managing such an allotment. Local authorities may therefore find it helpful, in terms of managing the allocation of allotments, to discuss with applicants their particular needs and to ensure that potential tenants are aware of the actual dimensions of the allotment requested and how much work would be required by the tenant to look after such an allotment properly.
1.6 There is no legislative requirement within section 110 for a local authority to assist tenants in moving to larger or smaller allotments (beyond the requirement to process any request under section 109(1) in the standard way). Local authorities should, however, consider ways to meet the requirements of tenants which may arise due to changing circumstances such as age, family circumstances, health and disability.
1.7 Local authorities should also consider how best to make growing spaces available for people with particular needs, such as those with limited mobility who may require particular growing spaces including small raised beds.
1.8 Subject to the requirements of section 111, it is for the local authority to manage its waiting list in the most suitable way for that authority. Authorities may wish to separately categorise requests for applications from an existing tenant for a transfer to a larger or smaller allotment.
1.9 Whether the offer of a lease of an allotment is to be regarded as accepted for the purposes of section 110 will depend on the particular dealings between the parties to the proposed lease of an allotment.
1.10 If an existing tenant makes a formal request under section 109(1) for a different size of allotment, that person must be added to the list maintained by the authority under section 111. Although not a legislative requirement, in its annual allotment report (section 121(2)), the authority should distinguish between people on its waiting list who have not yet been offered a lease for an allotment and those tenants who have been granted a lease on an authority allotment but have requested another allotment.
1.11 To meet existing tenants’ requests to transfer to a larger or smaller allotment, local authorities may wish to facilitate a system to enable tenants to swap plots.
1.12 When facilitating a tenant to move to a larger or smaller allotment, the local authority should have regard to its obligations under the Equality Act 2010.
1.13 Although not a legislative requirement, when a lease or sub-lease is offered for an allotment the potential tenant should be made aware as to whether the land is leased or owned by the local authority, as particular procedural requirements apply in relation to termination of subleases granted by local authorities under section 128 of the Act. When the offer is of a sublease of an allotment owned by a local authority but leased to a tenant (e.g. a tenant association) then the applicant for the sublease should be made aware of the identity of the tenant. This is recommended because particular procedural requirements apply in relation to such subleases (section 129 of the Act).
1.14 It would also be good practice for a local authority to make the potential tenant aware of whether management of the site has been delegated to a body other than the local authority (e.g. to a body under section 123 of the Act) .
1.15 Local authorities are not expected to disturb or move existing tenants from smaller allotments in order to join together existing allotments to create allotments of 250 square metres. However an authority may consider it prudent to join together vacant smaller sized allotments in order to create allotments of 250 square metres.
1.16 Where an offer of a lease for an allotment is made to two or more persons which is accepted, the lease should set out whether the tenants have joint or split liability in terms of rent and other relevant obligations.
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