Allotments: guidance for local authorities
Guidance on certain sections of Part 9 of the Community Empowerment (Scotland) Act 2015: Allotments.
2. Section 111 – Duty to maintain list
2.1 Section 111(1) imposes an obligation on local authorities to establish and maintain a waiting list of residents who have requested an allotment. Subsection (2) provides that there is no set format for such lists and local authorities may
manage them as they see fit. Subsection (3) provides that a person's details must be removed from the list when their request to lease an allotment is agreed to or if the person withdraws their request.
2.2 Section 112(7) provides that, where a request under section 109(1) is submitted by two or more persons, the persons making the request should be regarded as one person for the purpose of calculating the number of persons on the waiting list.
2.3 Section 123 allows a local authority to delegate certain functions, including the function of maintaining the list required by section 111(1), to a person who
represents the interests of all or the majority of the tenants of the allotments on a particular site. Usually, this “person” will be an allotment association. In order for functions to be delegated, a written application must be made by the person wishing
to take over the functions of the local authority (subsection 4). Various procedural rules and requirements regarding such applications are set out in section 123.
2.4 The first named person on a request under section 109(1) should be considered the lead person. Should the lead person withdraw from a request, the entry on the list should remain on the waiting list and the name of the lead person should be changed to the name of the second person named in the request under section 109(1). An additional name cannot be added to a request under section 109(1) after a person has withdrawn from an application. Should that former lead person who has withdrawn from a request wish to re-join the waiting list at a later date they will be required to make a new request under section 109(1).
2.5 Where the persons named in a request for an allotment become estranged, the original request under section 109(1) cannot be treated as if it were submitted separately by two or more persons. If a person wishes to withdraw from an existing request by two or more people but nonetheless wishes to request an allotment, that person should submit a new request under section 109(1).
2.6 It is quite common for a body other than an individual (natural person) to submit a request for an allotment. An example would be a body set up by community groups. An unincorporated association, however, cannot generally in its own right enter into legal agreements or be a tenant under a lease. Care should therefore be taken to make sure that bodies who make a request for an allotment are appropriately constituted.
2.7 The form of the list is to be determined by the local authorities and they can manage the list as they see fit. They may, for example, wish to split the list into applicants’ preferred geographical areas. The Scottish Government recommend that the the list should, as a minimum, include the following:
- the name of the persons making the request (including identification of the lead person, if relevant);
- the address and other contact details (e.g. telephone numbers, email address etc.) of the lead person;
- any special requirements;
- the size of allotment requested, if specified;
- information about the distance of the lead person from nearby allotment sites; and
- the date on which the person was added to the list.
2.8 Even when the function of maintaining the waiting list required by section 111(1) is delegated to another body, the duty to maintain the waiting list remains with the local authority. The local authority should therefore, if agreeing to a request to delegate that function, be completely satisfied that the individual or body to whom management of the waiting list is to be delegated is fully able to fulfil the local authority’s duties as set out in section 111 and fully understands the responsibilities, including compliance with data protection laws. Applicants should be advised to seek independent legal advice on the matter if necessary.
2.9 If tenants of an allotment site in relation to which functions have been delegated express their dissatisfaction to the local authority regarding how the delegated functions are being carried out, the local authority should investigate those concerns in accordance with their local complaints process.
2.10 A person’s name and the details of their request for an allotment must be removed from the waiting list when their request to lease an allotment is agreed or if the person withdraws their request.
2.11 Section 111 of the Act applies only to requests for an allotment made to a local authority within the meaning of section 109. The duty to maintain a list under section 111(1), and any related guidance, does not therefore apply to requests for any allotment outwith the meaning of section 107 and requests made to organisations other than the relevant local authority (such as independent allotment associations). Accordingly, this guidance only applies to requests made to a local authority which request to lease an allotment owned or leased by the local authority from that authority, or which request to sub-lease an allotment from a tenant of the authority.
2.12 Local authorities may liaise with other stakeholders such as allotment associations to gather data surrounding requests for plots outwith the definition of an allotment under section 107 (i.e. plots that are not on land owned or leased by the relevant local authority) made to such stakeholders. Such activity is, however, outwith the scope of this guidance.
2.13 When determining the total number of persons on a waiting list, local authorities should be mindful of persons who may have requested an allotment across multiple sites within their area. A mechanism is required to identify such multiple applications to ensure overall waiting list data is accurately reported under section 121 (annual allotments report).
2.14 Where practicable, local authorities should give consideration to using an online application process to receive and manage applications for allotments. Local authorities should however also make provision to make available an offline/ paper-based application process.
2.15 There are no reasons or circumstances in which local authorities should consider closing their waiting lists to new applicants.
2.16 Local authorities, as data controllers in their own right, will have regard to data protection laws when managing their waiting lists.
2.17 In order to assist with the provision of information about allotments (on topics such as training/ learning opportunities, networking events, newsletters, signposting etc.) to people on the waiting list from organisations such as the Scottish Allotments and Gardens Society and local growers’ forums, local authorities may wish to consider including a question on their application form as to whether the person requesting the allotment agrees to being contacted by such third parties for those purposes. Local authorities must make sure that any relevant data protection laws are complied with if sharing any information about persons on the waiting list with third parties.
2.18 The Act does not make provision for any request made to a local authority by a person who is not resident in the area of that authority. Any such request is not a request for an allotment as defined by section 109. There is therefore no need for a person making such a request to be added to the waiting list required by section 111(1).
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