ALLOTMENT TENANCY AGREEMENT REVISION

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ALLOTMENT TENANCY AGREEMENT REVISION Powered By Docstoc
					                                                 ALEXANDRA ALLOTMENT GROUP
                                    COMMENTS ON EEBC ALLOTMENT TENANCY AGREEMENT REVISION

9th October 2009
www.alexallotment.co.uk
plotholder@alexallotment.co.uk



Key points:

      The AAG would not advise Alexandra Road plot-holders to sign this agreement. It removes existing rights from tenants and increases
       their costs and liabilities.
      The Agreement contains little or nothing about the Council’s responsibilities. The Agreement should make clear what actions the
       Council will undertake on site eg provision and maintenance of water supplies, provision and emptying of waste bays, removal of fly-
       tipped rubbish, maintenance of communal areas, site security.
      The Agreement must make it clear that clauses do not apply retrospectively to existing tenants. Only new action after 1 April 2010
       can be covered.
      Where permission for actions is required the Agreement should state whether such actions would normally be approved and how long
       such approval will take.
      The Agreement must state and refer to the Allotments Acts that apply.

The following clauses are of particular concern:

      2c and 2d. The maximum size of plot per tenant. This must be amended or removed.
      2f, 2g and 2h. Liabilities and insurance. This is unacceptable and must be removed.
      4b. Removing tenants if the allotments are to be used for some other purpose. This must be amended to include tenants’ rights
       under the Allotments Acts.
      5p. Permissions and charges for sheds and other structures. This should be amended to remove charges and unnecessary
       bureaucracy.




                                                                     1
Clause   Text                                      Comment                                   Suggested text
1.       The yearly allotment rent will be         It is not clear how the figure for the
         subject to annual review by the Council   annual rent is arrived at; it would be
                                                   helpful to have a breakdown. It is also
                                                   not clear how the annual rent review
                                                   will be managed.
                                                   It is assumed that any rent review
                                                   would lead to an increase in rent; there
                                                   should be a cap on the level of increase,
                                                   to perhaps no more than 5% above the
                                                   rate of inflation.
2.       The tenancy is subject to the following
         conditions
2a       The rent will be paid in advance by a
         single payment on 1 April each year
2b       The allotment garden will be used as an   What “other purpose” might be              The “plot” is the land to be rented to
         allotment garden and for no other         acceptable?                                the tenant marked out on the attached
         purpose without the prior consent, in     The terms “allotment garden”,              map and measured by the Council as x
         writing, of the Council                   “allotment” and “plot” are used            square metres. The plot is rented on the
                                                   interchangeably throughout the             basis that it is wholly or mainly
                                                   document. To avoid confusion only the      cultivated by the plot-holder for the
                                                   term “plot” should be used and first       production of vegetables or fruit by
                                                   defined.                                   him/herself and family.
                                                   The Government’s definition of an
                                                   allotment garden is “a piece of land not
                                                   exceeding 40 poles (1012m2) in extent
                                                   which is wholly or mainly
                                                   cultivated by the plot-holder for the
                                                   production of vegetables or fruit by
                                                   him/herself and family.” This should be




                                                               2
                                              the basis of the definition of “plot”.
2c   No tenant will have the right to more    It is unclear how the figure of “200        All new tenants (that is those renting an
     than a total of 200 metres squared of    metres” has been derived. Since the         allotment garden for the first time from
     allotment garden                         site is (and has been for some time)        1 April 2010) will be required to rent at
                                              divided into full and half “plots” it       least one half plot.
                                              would seem more sensible to state that
                                              tenants will have the right to for
                                              example “one full plot” or “three half
                                              plots”.
                                              It must be made clear that this clause
                                              does not apply to tenants who had
                                              initially rented their plots prior to 1
                                              April 2010.
                                              The Council may also wish to take into
                                              account the possibility that the waiting
                                              list may reduce in future and this clause
                                              should be flexible enough to deal with
                                              this.
                                              Although a maximum limit is suggested
                                              there is no minimum limit proposed.
                                              Splitting plots into smaller pieces may
                                              reduce the waiting list, but is not
                                              sustainable in the long-term. Allotment
                                              plots were designed for tenants to grow
                                              enough to feed their families and this
                                              should remain the basic criteria. No
                                              tenant should be allowed to rent less
                                              than one half plot.
2d   If a tenant has acquired more than a     This is not acceptable and must be          If there is a waiting list (of at least …)
     total of 200 metres squared of           deleted. Tenants who are effectively        for allotment gardens then no new
     allotment garden, the Council may give   maintaining their plots, of whatever        tenant (that is those renting an
     the tenant 12 months notice and make     size, should not be penalised by a          allotment garden for the first time from




                                                          3
     the surfeit available to new tenants.        change in Council policy. The tenancy       1 April 2010) will have the right to more
                                                  agreement already requires tenants to       than one half plot.
                                                  maintain their plot adequately. Only
                                                  failure to do this should lead to a
                                                  removal of a tenancy for all or part of a
                                                  plot.
2e   The tenancy will end on the death of
     the tenant. The tenant’s surviving
     family may continue with the tenancy,
     with the consent of the Council and on
     signing a new allotment agreement.
2f   The tenant is responsible for the            This is unacceptable and must be
     provision of adequate and appropriate        removed. It is not clear what “adequate
     public liability insurance in respect of     and appropriate” mean here. The EEBC
     their personal liabilities associated with   website provides a link to the SWCAA
     operating the allotment garden.              which offers allotment insurance to
                                                  those who pay a membership fee of £2
                                                  pa. However the insurance cover is very
                                                  low at only £5,000. This is unlikely to
                                                  cover the costs of a serious accident on
                                                  a plot. The NSALG also offers insurance
                                                  to members, with cover of up to £5m,
                                                  but this would cost up to £70pa, more
                                                  than many tenants will be paying in
                                                  rent. It is also clear that much of the
                                                  insurance offered is aimed at allotment
                                                  societies, rather than individual plot-
                                                  holders. In addition it seems
                                                  inappropriate for tenants to be required
                                                  to join any third-party organisation in
                                                  order to meet the tenancy agreement.
                                                  Tenants should not be required to




                                                              4
                                                provide insurance.
2g   The Council shall accept no liability in   It is not clear if this statement is
     respect of any claim whatsoever arising    intended to cover similar issues to
     from personal injury to the tenant or      clause 2f, that is the tenant on their
     any third party and the tenant agrees to   own plot, or if it is also meant to cover
     indemnify the Council in respect of any    communal areas managed by the
     such claim made against it.                Council or action taken by their
                                                employees on site. It is not clear in any
                                                case how a tenant is expected to
                                                “indemnify” the Council, unless this
                                                would also be part of the insurance
                                                cover in 2f.
                                                The Council should be responsible for its
                                                own actions. Tenants cannot take on
                                                this liability.
2h   The Council shall accept no liability to   The Council should be responsible for its
     the tenant or any third party in respect   own actions. Tenants cannot take on
     of any damage to the allotment or theft    this liability.
     of any item, produce or structure
     placed on the allotment.
2i   The tenant will be issued with a key to
     access the relevant allotment site.
     Replacement keys will be subject to a
     charge.
2j   The tenancy will not include any
     communal pathway (which will be
     maintained by the Council) identified on
     the maps erected on the allotment site
     or otherwise made available to the
     tenant.
3    The tenancy can be terminated by the
     Council, giving one month’s notice, if




                                                            5
3a   The rent is in arrears for 40 days or       [Allotments Acts 1908]
     more, whether legally demanded or
     not.
3b   After the first three month’s of tenancy    [Allotments Acts 1908]                        After the first six months of tenancy
     the allotment is not clean and in a good    It is not clear what the terms “clean” or     there is no evidence that the allotment
     state of cultivation.                       “good state of cultivation” mean. Such        garden is being cultivated.
                                                 terms are in any case open to much
                                                 interpretation. Three month’s is also a
                                                 short amount of time to fully cultivate a
                                                 new plot. Viewing the plots should fit in
                                                 with the Council’s expected timetable
                                                 of September and April.
3c   The tenant has failed to comply, within
     a reasonable time, with a notice
     requiring the tenant to remedy any
     failure to observe the conditions of this
     agreement.
3d   The tenant is resident more than one        [Allotments Acts 1908]
     mile outside of the Borough.
4    The tenancy can also be terminated by
4a   The Council giving 12 months notice         [Allotments Acts 1922]
     before 6 April or after 29 September in     The Council should cite a reason for
     any year.                                   terminating a tenancy ie a failure to
                                                 comply with the tenancy agreement.
4b   The Council giving three months notice      [S8 Allotments Acts 1925 “Where a local
     in writing, at any time, if the allotment   authority has purchased [or appropriated]
     or any part of the allotment, is required   land for use as allotments the local
     for building works, other industrial        authority shall not sell, appropriate, use,
     purposes, roads, sewers, repairs or         or dispose of the land for any purpose
     improvements. These will include any
                                                 other than use for allotments without the
     appropriations associated with statutory
     obligations placed on the Council by        consent of the Minister of Agriculture




                                                              6
     other agencies.                            and Fisheries. . . and such consent [may
                                                be given unconditionally or subject to
                                                such conditions as the Minister thinks fit,
                                                but] shall not be given unless the
                                                Minister is satisfied that adequate
                                                provision will be made for allotment
                                                holders displaced by the action of the
                                                local authority or that such provision is
                                                unnecessary or not reasonably
                                                practicable”]
                                                This clause should make clear that the
                                                Council would need to seek permission
                                                from the Government for such action
                                                and tenants would need to have their
                                                plots replaced by another site and could
                                                seek compensation.
4c   The tenant giving 12 months notice at      Why does the tenant need to give 12           The tenant giving notice at any time. No
     any time.                                  months notice? The Council should be          refund of rent paid will be made.
                                                willing to offer the allotment garden to
                                                a new tenant as soon as the old tenant
                                                is ready to leave. However to avoid
                                                administrative complexities the tenant
                                                should not be offered a refund of rent.
4d   If the tenant becomes bankrupt.
5    The tenant will
5a   Keep the allotment clean, free from        It is not clear what terms like “clean”       Make every reasonable effort to control
     weeds, diseased or harmful plants and      or “good state of cultivation” mean. It       weeds and pests on their plot and
     pests and in a good state of cultivation   is not possible to keep any plot totally      remove diseased or harmful plants.
     and fertility.                             free of weeds or pests. “Harmful”             Harmful plants include those that are
                                                should be specified.                          illegal or that are poisonous or injurious
                                                                                              to people, pets and wildlife.




                                                             7
5b   Keep the allotment in a neat and tidy       This is unnecessary and should be
     condition such that the state and           deleted. It is not clear what terms like
     condition shall (in the opinion of the      “neat and tidy” mean. This clause
     Council’s Allotment Officer) be             suggests that if most plots are untidy
     consistent with the majority of the         then that’s acceptable.
     occupied plots on the allotment site.       Is there a “Council Allotment Officer”?
5c   Ensure that the boundary to their plot is   It is not clear how a plot would be        Ensure that the boundary to their plot is
     clearly defined and marked out.             “marked out”.                              clearly defined.
5d   Only use entrance roads, communal and
     joint pathways to gain access to the
     allotment unless consent is given to the
     tenant in writing by the Council to use a
     personal entrance.
5e   Not use carpet, plastic sheets or similar   This clause should be deleted.
     materials to suppress weeds but will        Horticultural fleece is not a weed
     only use recognised horticultural           suppressant. For environmental good
     materials such as horticultural fleece      practice plot-holders should be
     for this purpose.                           encouraged to reuse and recycle a
                                                 range of material for a variety of uses,
                                                 including as weed suppressants. All such
                                                 material would need to be removed at
                                                 the end of a tenancy under clauses 5nn,
                                                 5oo and 5pp.
5f   Not cause or permit any nuisance or         This clause is confusing, are fires        Fires in brassiers are permitted after
     annoyance (including the lighting of        allowed as long as they are not a          6pm, burning only dry non-toxic green
     bonfires) to any other tenant or to         nuisance?                                  material arising from cultivation of the
     neighbouring residents.                                                                plot.
5g   Not obstruct or encroach upon any path
     set out by the Council for the use of
     other tenants.
5h   Keep joint pathways safe, tidy and in       This clause could be simpler and           Keep pathways around the tenant’s plot
     good repair. To not cover any joint         combined with clause 5i.                   clear and well defined, with a minimum




                                                             8
     pathway or communal pathway with any       The section on communal pathways is         width of 40cms (16 inches), so that they
     material of any description or floor       already covered by clause 5g.               can be effectively used to reach the
     coverings; to keep all pathways clear of                                               plot and act as a boundary between
     plants, trees and other natural matter.                                                plots.
5i   Keep all paths clean and free from         This clause could be simpler and
     weeds, with a minimum width of 40cms       combined with clause 5h.
     (16 inches).
5j   Not sub-let or assign to another person,   Allowance should be made for temporary
     any part of the allotment without the      employment of help if necessary, or for a
     written consent of the Council.            group of people working a plot together.
5k   Not without the written consent of the
     Council, cut or prune any timber or
     other trees (except permitted fruit
     trees – see below) or take or sell any
     mineral, gravel or clay from the
     allotment.
5l   Not cultivate more than one quarter of     This is not acceptable and must be
     the allotment with fruit or vegetables     deleted. There should be no constraints
     that will remain productive for more       on the range of fruit or vegetables
     than one year.                             grown. If a tenant wishes to grow only
                                                asparagus or rhubarb on their plot that
                                                should be permitted.
5m   Keep every hedge that forms part of the
     allotment properly cut and trimmed.
5n   Keep all ditches properly cleansed.
5o   Not use any barbed wire, corrugate         Why would barbed wire or asbestos be
     metal sheeting, sharp materials or         permitted at all?
     asbestos based materials for a fence or
     to adjoin any path set out by the
     Council for the use of other tenants.
5p   Not erect any building, structure or       Since a shed is a basic necessity on a      Not erect any building, structure or




                                                            9
     toolbox without the approval of the        plot, tenants should have the right to      toolbox above a maximum size of 2.5m
     Council. Applications are to be made in    erect one within the rules about size       by 1.8m (8ft by 6ft). All structures must
     writing. If consent is given the           etc set by the Council and should not       be suitably constructed and properly
     maximum size will be 2.5m by 1.8m. It      need to seek charged approval unless        maintained.
     must be suitably constructed, securely     they wish to erect something beyond
     locked and after construction be           those limits.
     properly maintained. Glass structures      Why is no limit on height included?
     are not permitted. A charge may apply.     Greenhouses are also a staple on
                                                allotments, so glass should be
                                                permitted.
5q   Any structure found to be devoid of        This can be merged with the                 If (after April 2010) the tenant wishes to
     Council consent will be removed            appropriate section of clause 5p            erect any structure of size greater than
     without notice. The costs of which may                                                 2.5m by 1.8m (8ft by 6ft) the Council’s
     be recharged to the tenant directly.                                                   consent must be sought and applications
                                                                                            are to be made in writing. If a structure
                                                                                            is erected without the Council’s consent
                                                                                            it will be removed without notice and
                                                                                            the costs of doing so will be charged to
                                                                                            the tenant.
5r   Not install or erect any fruit cages or    This clause is already covered
     poly tunnels without the approval of the   adequately by clause 5p and 5q.
     Council. Applications are to be made in
     writing.
5s   Not plant any fruit trees without the      Tenants should not need to seek             Keep any trees on the plot pruned so
     approval of the Council. If approval is    approval to plant any specific type of      that the maximum height is 3 metres
     given the maximum height of the trees      vegetable or fruit. Pruning should not      and the tree is kept within the
     shall be 3 metres, all tree branches       be limited to fruit trees.                  boundaries of the plot.
     must remain within the boundary of the
     host allotment and should not obstruct
     any pathways.
5t   Not grow on the allotment any trees,       Since what the Council may consider
     shrubs or plants that the Council          “illegal” or “injurious” is not specified




                                                            10
     considers illegal or injurious to the        it is not possible for a tenant to know if
     allotment or to the occupier of any          they comply. “Harmful” plants are
     other allotment garden, the inhabitants      already covered by clause 5a.
     of the area generally or to wildlife.
5u   Not place on the allotment or allow
     other persons to deposit on the
     allotment any refuse or decaying matter
     (except reasonable quantities of manure
     and compost – which must be kept
     within the confines of a tenant’s
     allotment and meet current hazardous
     waste legislation.
5v   Not place any matter in the hedges,
     ditches or dykes or on any adjoining
     land.
5w   Ensure any dog brought into the
     allotment is securely held on a leash
     and any fouling is removed.
5x   Not bring or keep any animal or              The Allotments Acts 1950 gives tenants
     livestock (including bees) on the            the right to keep chickens and rabbits
     allotment unless the written consent of      and the right to erect structures to
     the Council is first obtained. Consent       house them. It should therefore be
     can be withdrawn at the direction of         made clearer that this clause is not
     the Council by written notice given to       about seeking permission to keep
     the tenant. Failure to comply with this      chickens or rabbits, but about seeking
     will result in a breach of the tenancy       the Council’s approval to the way in
     agreement.                                   which they are kept.
5y   Not erect any notice or advertisement        Allotment associations will need to put
     on the allotment.                            up notices.
5z   Not leave unattended on the allotment
     any vehicle or trailer of any description.
     Any unattended vehicle will be removed




                                                              11
      without notice.
5aa   Notify the Council in writing of any
      change of address or personal details.
5bb   Observe and perform any other special       It is not clear what this means nor how
      conditions, which the Council considers     a tenant would comply.
      necessary to preserve the allotment
      from deterioration.
5cc   Ensure that no pesticides or chemicals      It is not reasonable to expect tenants to   Ensure that only reasonable amounts of
      of any description are kept or stored on    keep no supply of horticultural             pesticides or horticultural chemicals,
      any part of the allotment site.             chemicals on their plot eg slug pellets,    for use only on the tenant’s plot are
                                                  garden lime.                                kept on the plot and stored safely.
5dd   When using sprays or fertilisers take all   This clause could be simplified and         So far as is possible use environmentally
      reasonable care not to adversely affect     merged with 5ee.                            friendly substances for all purposes on
      matters of the public, wildlife (other                                                  the plot. Limit the use of all pesticides,
      than vermin or pests), neighbouring                                                     sprays and chemicals and avoid
      plots and boundaries and ensure that                                                    effecting neighbouring plots and
      adjoining hedges, tress and crops are                                                   boundaries. The tenant will be
      not adversely affected and must make                                                    responsible for any damage caused by
      good or replant as necessary should                                                     the use of any substance on the plot.
      damage occur.
5ee   So far as is possible select and use        This clause could be simplified and
      environmentally friendly substances         merged with 5dd. Does the Council have
      whether for spraying, seed dressing or      a list of “acceptable products”? If so it
      for any other purpose whatsoever that       should state where to find the list.
      will cause the least harm to the
      environment and the occupiers of other
      allotments on the allotment site and
      any spray or fertiliser either approved
      by the Council’s allotment officer or
      appearing on a list of acceptable
      products issued by the Council will be
      acceptable.




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5ff   Not store any combustible fuels.           It is not reasonable to require tenants     Ensure that only reasonable amounts of
                                                 to keep no supply of combustible fuels      combustible fuels, for use only on the
                                                 on their plot for use in eg petrol driven   tenant’s plot are kept on the plot and
                                                 tools.                                      stored safely.
5gg   Not commit any illegal act within the
      allotment site nor do anything which
      might bring the Council into disrepute.
5hh   Comply with any hosepipe ban and will
      use shared water taps (if available)
      considerately with other occupiers of
      the allotment site.
5ii   Ensure all water receptacles are stable,
      not sunken and have secure covers.
5jj   Ensure that all sheds are maintained in    This clause should be linked with
      a reasonable and safe condition. Where     clauses 5p and 5q.
      the Authorised Officer considers a shed    Who is the “Authorised Officer”?
      or structure to be unsafe, a notice will
      be issued and removal scheduled within
      7 days or within 24 hours if the
      structure is deemed to be hazardous to
      the health and safety of other tenants.
5kk   Comply with any covenants affecting        Since it is not stated whether a            Where a covenant affects the Council’s
      the Councils ownership of the              covenant applies or what it might say, it   ownership of the allotment, the tenant
      allotment.                                 is not clear how a tenant could comply.     will be informed of the details of the
                                                                                             covenant and will be required to comply
                                                                                             with any relevant terms.
5ll   At all times during the tenancy observe    Unless the Council informs the tenant of    At all times during the tenancy observe
      and comply fully with all Acts of          such matters it is not clear how a          and comply fully with all Acts of
      Parliament, Byelaws, Orders,               tenant could comply.                        Parliament, Byelaws, Orders,
      Regulations or similar matters affecting                                               Regulations or similar matters affecting
      the allotment.                                                                         the allotment, which are notified to the
                                                                                             tenant by the Council.




                                                             13
5mm   Agree that any case of dispute between
      the tenant and any other occupier of an
      allotment garden in the allotment site
      shall be referred to Council whose
      decision shall be final.
5nn   Following notice and on the termination     It is possible that structures or produce   Following notice and on the termination
      date of this agreement, the tenant will     left on a site may be useful to an          date of this agreement, the tenant will
      remove all personal property from the       incoming tenant. The Council should not     give up possession and use of the
      allotment. Any personal property,           remove items left by a previous tenant      allotment in a state which will allow it
      structure, produce or other item            unless asked to do so by the new            to be assigned immediately to a new
      remaining on the plot or site will be       tenant.                                     tenant. Any work required by the
      removed and the cost of removal             This clause can be merged with clause       Council to return the plot to such a
      recharged to the tenant.                    5oo.                                        state will be charged to the tenant. Any
                                                                                              personal property, structure, produce or
                                                                                              other item remaining on the plot or site
                                                                                              [seven days after the termination of the
                                                                                              tenancy] will be assigned to any new
                                                                                              tenant or removed and the cost of
                                                                                              removal recharged to the tenant.
5oo   Give up possession and use of the           This clause can be merged with clauses
      allotment at the end of the tenancy in a    5nn and 5qq.
      state which will apply with the above
      conditions.
5pp   At the end of the tenancy return the
      keys to the Town Hall within 48 hours.
      Failure to do so will entitle the Council
      to charge for replacements.
5qq   At the end of the tenancy the tenant        This clause can be merged with clauses
      must leave the plot in a condition          5nn and 5oo.
      suitable for immediate re-letting.
      Should any works be required to return
      the allotment to a suitable condition in




                                                             14
     accordance with the above conditions
     then the Council will be entitled to
     recharge the tenant for full costs.
6    Any officer or member of the Council
     will be entitled, at any time, to enter
     and inspect the allotment.
7    The Clerk or Assistant Clerk may sign
     any notice or agreement required to be
     given to the tenant.
8    This agreement replaces all previous
     allotment agreements, if any exist,
     between the Council and the tenant.
9    Any notice required to be given by the
     Council to the tenant may be signed on
     behalf of the Council by any duly
     authorised officer and may be served on
     the tenant either personally or by
     leaving it at the tenant’s last known
     address or by sending it recorded
     delivery to such address or by fixing it
     in some conspicuous manner on the
     allotment.
10   The tenant shall notify the Council in       It is not clear what the outcome of such
     writing of any reason or special             a notification would be. Will the Council
     circumstance that prevents them from         aim to find an acceptable solution – if so
     adhering to the terms and conditions of      this should be stated. If the Council
     the tenancy agreement.                       cannot agree to a solution will the
                                                  tenancy be terminated – if so this should
                                                  be stated.
11   Any notice required to be given by the
     tenant to the Council shall be
     sufficiently given if signed by the tenant




                                                              15
     and sent, by recorded delivery, in a pre-
     paid post letter to the Council’s Head of
     Operational Services, Epsom and Ewell
     Borough Council, Town Hall, The
     Parade, Epsom, Surrey KT18 5BY.
12   In the event of any dispute between the
     tenant and the Authorised officer
     regarding the interpretation of this
     tenancy agreement the matter shall be
     referred to an Arbitrator agreed
     between the Authorised Officer and the
     tenant. In the event that agreement
     cannot be reached an independent
     Arbitrator shall be appointed by the
     Authorised Officer.
*    An allotment garden means an                It is not clear what this asterisked
     allotment not exceeding a quarter acre      statement at the end of the document
     which is wholly or mainly occupied and      is linked to, but this is not the
     cultivated by the tenant for the            Government’s definition of an allotment
     production of vegetables or fruit crops,    garden. Nor does it comply with
     other than apples, pears and plums, for     proposed clauses in the tenancy
     the consumption by the tenant or the        agreement, which allow fruit trees with
     tenant’s family, and flowers provided       permission.
     these are not grown for commercial
     purposes




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