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“To sell or not to sell” or “when is an allotment not an allotment”

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“To sell or not to sell” or “when is an allotment not an allotment”

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									       “To sell or not to sell” or “when is an allotment not an allotment”

                                     By Geoff Stokes


There is currently considerable debate on the subject of whether allotment produce may
be sold.

This debate stems from the 1922 definition of an allotment garden “an area not exceeding
40 pole used wholly or mainly for the cultivation of vegetable or fruit crops for
consumption by the occupier or his family”. This is taken by many to be a legal restriction
on what the land can be used for.

In looking at the 1922 Act it is not immediately clear why this definition was introduced
and so there is a need to look at the history of the time. The Thorpe Report (para. 42)
notes that demand for allotments, particularly from returning ex-servicemen, continued
unabated, particularly in the difficult economic conditions and in 1919 it was estimated
that no less than 7000 new applicants were coming forward each week, but the number of
plots available was not nearly enough to accommodate them. Various theories were
advanced to account for this demand. First, the welter of free advice and help which had
been available during the war had created a widespread interest in gardening among
those who had not previously considered taking on an allotment. Second there was,
immediately after the war, a steep rise in the price of vegetables, and third the closing of
the munitions factories and general ban on overtime had given many workers more leisure
time without any means of spending it profitably. Lastly, there were in 1919 large
numbers of returning ex-servicemen whose resettlement in civilian life was posing many
problems.

The provision of allotments undoubtedly assisted in this process and the Land Settlement
(Facilities) Act of 1919 was intended to help them. By 1922 pressure from owners for the
return of their land taken under wartime emergency powers was increasing and the
Government announced that the regulations permitting the requisitioning of land would
cease in 1923 and at the same time introduced the allotments Act of 1922 designed
primarily to give tenants more security. This Act introduced a new concept of an
allotment garden giving emphasis to the smaller type of plot associated with urban areas.

Prior to 1922 an allotment could be anything up to 5 acres in extent cultivated or intended
to be cultivated as a garden or farm or partly as a garden and partly as a farm (see
Allotments Act 1925) Clearly, the Act of 1922 now allowed two types of allotments. As a
Council now had a choice of providing either allotments or allotment gardens, it is difficult
to accept that the 1922 definition was meant to legally restrict the use to which the land
could be put as the Council could easily have described allotment gardens as allotments.
It is more likely that the introduction of “allotment gardens” was intended to restrict a
Council‟s obligations to provide, and this seems to be clarified by the 1950 Allotment Act
Section 9. It therefore appears that from 1950, the only land which could be demanded
from the council was the provision of allotment gardens and in the case of a population in
excess of 10,000 limited to twenty poles. There is no clear evidence that even this Act
prevented a council from providing allotments if they so wished. If this view is accepted
then there is no valid reason to prevent surplus produce from being sold.

There is a further section in the Small Holding and Allotments Act 1908 which would
support this theory. Section 27 of this Act specifically empowers a Council, where land is
not immediately required for allotment purposes, to let it on a temporary basis at the best
annual rent obtainable. In Spencer‟s Small Holdings and Allotments Acts 1908-1926 it
states that “This sub-section will enable the authority, when they are unable to find proper
allotment tenants from the population to let provisionally to market gardeners, farmers or
others willing to take the land”. As allotment gardens have also been let for other
purposes, including pony grazing, pigeon and livestock keeping, growing flowers etc, it
seems reasonable that this section applies also to allotment gardens. If the intention of
the 1922 Act was to be a legal restriction on the use of allotment gardens then all these
other purposes would be illegal, but there has never been any attempt to so restrict
usage. It seems inconceivable that the legislation would restrict the sale of produce by
one person using the land and at the same time allowing a neighbouring plotholder to sell
his produce on the basis that he was not using the plot as an allotment garden despite
both growing food.

In any event, there does not appear to be any legal reason why the council could not
agree to changing an allotment garden into an allotment thereby removing any perceived
restriction on its use.

The 1922 definition only allowed the population to demand legally up to ¼ acre for
growing mainly fruit and vegetables but the Council could if they so wished let the plots as
allotments without any restrictions.

In view of the above there seems to be no justification in preventing a tenant from selling
or otherwise disposing of „surplus‟ produce as long as he is not using the plot by way of
trade or business.

It is possible that the 1922 definition was to prevent the creation of an agricultural
tenancy with the onerous conditions relating to security of tenure which were attached to
such a tenancy, but since 1995 no new agricultural tenancies can be created. The 1995
Agricultural Tenancies Act has replaced them by business tenancies which do not give
indefinite security of tenure to the tenant.

Published in Clerks and Councils Direct

								
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