Printable Version of Topic

Posted by: Simon Kirby Nov 17 2010, 11:32 AM

At http://www.newbury.gov.uk/Agendas10/agendacs101122.pdf Newbury Town Council are to consider my complaint that this year's allotment rent increase is unenforceable. If you have a spare hour I would be very pleased if you could came along to see first-hand what passes for local democracy in action.

My argument has always been that the rent review term in the tenancy agreement is unfair under the Unfair Terms in Consumer Contracts Regulations 1999 and if that's right it means the Council can't enforce any rent increase. I expect that deciding now that the term is indeed unfair is just going to be too embarrasing for the Council, but the alternative is that they have to take me to court to enforce my eviction, and then it's the judge who decides.

The idea of the http://www.statutelaw.gov.uk/legResults.aspx?LegType=All+Legislation&title=unfair+terms+in+consumer+contracts+regulations&Year=1999&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&TYPE=QS&NavFrom=0&activeTextDocId=2730925&PageNumber=1&SortAlpha=0 is that they protect the consumer from being exploited by the strength of the supplier's position. Each term of a contract has to pass the Regulations' test of fairness, and if it fails it's as if the term wasn't there.

The problem with the rent review term is that it allows the Council to decide how much to increase the rent by each year and the tenant isn't given any notice of the increase so the tenant can't quit before the increase comes in because she is contracturally obliged to give 12 months notice to quit, and because she has crops in the ground and has already bought in seeds for the spring. It's about as unfair as terms come.

This is what the OFT say

Please come if you can. The Council have slipped this into the agenda quietly - I didn't even know until yesterday - so I don't expect any allotmenteers to have found out about it - and the Council have banned the Society from letting me post notices on the Society notice board. I'll be leaving after the item for a drink somewhere so I'd be pleased if you'd join me - no names, no pack drill.

Posted by: Iommi Nov 17 2010, 11:40 AM

Whether I go or not, all the best with your effort.

Posted by: Simon Kirby Nov 17 2010, 12:02 PM

Cheers mate.

Posted by: dannyboy Nov 17 2010, 12:58 PM

I thought that the rest of the allotment holders couldn't care less?

Posted by: user23 Nov 17 2010, 05:20 PM

How many allotment holders are you representing Simon?

Posted by: Simon Kirby Nov 17 2010, 05:34 PM

Just me.

Posted by: Simon Kirby Nov 17 2010, 05:38 PM

Not really. Look at what was asked http://www.newbury.gov.uk/minutes10/minutescs100524.pdf.

The rent rise was unpopular because the rents are now some of the highest you'll find and yet the service is one of the poorest. Criticism of the rent rise isn't the Council's major concern though because that's easy enough to justify in terms of the tax-payer subsidy that the service enjoys. What's got the Council rattled is that the allotmenteers are beggining to understand how increadibly inefficiently the service is run and that self-management is a viable alternative that delivers cheaper rents and a better service. This is a very dangerous idea for the Council because it threatens what is for them a £125k turn-over business. The Council have had to work hard to contain the situation. For example this from the West Mills meeting:


Newbury's rent is now £6.94 per pole so if what Cllr Johnson said was true Newbury's rents would be average and there'd be no justification for any complaint. My own survey of 20 of Newbury's neighbouring boroughs suggest that the average all-in rate for a ten pole plot is most likely in the range £3 to £4 per pole. I asked a friend to put in a Freedon of Information request to find the basis of Cllr Johnson's assertion, and the Council claim to have sampled Thurrock (£8.25 per pole) and Enfield (£7.20 per pole), which is an odd choice, not least because their average rate is not even in the £6 to £7 range, but then there are precious few sites charging more than Newbury so choice was always going to be limited.

Granville Taylor's claim to have found self-managed council sites charging £100 per pole is also interesting because if true it would suggest that self-management is a very expensive way to go, and that is not what my research suggests. Again, my friend asked the Council to justify the Council's assertion and it turns out that the Services Manager was talking about the commercially-managed grow-your-own plots at Wyevale Garden Centres which are not council sites, and certainly aren't self-managed, and they're not even allotments in the generally accepted sense.

The Council have also gone for me personlly since I started the allotment society three years ago. If you're interested you might like to make a Freedom of Information request to see all the complaints that have been made against me. My personal favourites are Cllr Fenn's complaints that I brushed my dogs on my plot, and that the singing at our summer social was too loud, and my warning from the Chief Executive that flying my English Flag higher than 8' tall was a breach of the rules was probably the most bizarre when the plot of the year flies the same flag at the same height pretty much next to mine. http://www.newbury.gov.uk/minutes09/minutesfc090309.pdf of the most hurtful from my ward councillor, allotment steward, and neighbour of 15 years Cllr Marion Fenn:


Cllr Fenn didn't tell me she was making this accusation, and I was given no opportunity to answer the accusations. Here's an idea though: if Cllr Fenn can produce a collection of those crude and offensive e-mails and post them here I'll gladly make a generous donation to a charity of her choice, and if she can't I'll expect her to reciprocate.

When I http://www.newbury.gov.uk/minutes10/minutespr100512.pdf to the question of the fairness of the rent increase the Council were happy to take up Cllr Fenn's suggestion and brand me a vexatious complainant which was a pretty effective way of discrediting and silencing me.

It doesn't pay to complain, so it's no wonder that most allotmenteers keep their heads down and do as they're told. I just don't agree that's right. If I was mugged for £20 in the underpass I wouldn't be happy to let it go, and I'm no more inclined to give the Council £20 that they can't legitimately demand. Obviously, it would help if more people felt the same, but my conscience is my own and I have to do what I think is right.

Posted by: Iommi Nov 17 2010, 06:27 PM

If what you say is true, I hope you take these people to the effin' cleaners. It would be good if the NWN would take up your 'story' as it makes for fascinating reading and one that ceases to amaze me.

Posted by: Simon Kirby Nov 17 2010, 06:43 PM

I hope I haven't said anything that I can't justify. Where I could I've provided links. If I've made a specific acusation or claim whithout proof I'd be pleased to back it up, and of course if I'm in error then I'm more than willing to apologise and put the record straight, so please let me know specifically if something I've said is questionable.

Posted by: user23 Nov 17 2010, 07:01 PM

Don't you think you might be a tad obsessed with allotment charges?

Posted by: Simon Kirby Nov 17 2010, 07:27 PM

Is it possible you've missed the point? Newbury Town Council are going to take court action to evict me from my allotment.

Posted by: Iommi Nov 17 2010, 07:48 PM

I have put 'if what you say is true' in, to cover my back-side. It would be unfair to hurl insults at people I don't know, based on allegations and when I have only heard your side of the story. I have no-reason to disbelieve you. I hope you understand.

Like I said: if your view is an accurate account of things, then I think the attitude of our elected members is quite disgusting, regardless of whether they are entitled to charge the rent they have, but I have only heard your side of the story.

Posted by: On the edge Nov 17 2010, 09:39 PM

Trouble is Simon you are dealing with vegetables....

Posted by: user23 Nov 17 2010, 09:51 PM

I don't know whether the details of what you've said are true or what you've left out but when it comes down to it isn't this what generally happens to those who won't pay their rent?

It's hardly "democracy in action" if it's you and you alone protesting about these new charges. Perhaps if you had more allotment holders supporting your cause you might stand more of a chance.

Posted by: Iommi Nov 17 2010, 10:00 PM

Surely if he can prove that the rent is unfair, then he has a right to argue it?

Posted by: Iommi Nov 17 2010, 10:01 PM

Surely if he can prove that the rent is unfair, then he has a right to argue it? Notwithstanding that he feels he has been victimised.

Posted by: user23 Nov 17 2010, 10:12 PM

"Unfair" is a subjective term in this case and therefore it seems pointless arguing as he no doubt thinks it is and they think not. If he could prove the rent rise is illegal that would be a different story, but it doesn't seem it is.

He's also a bit guilty of Garvism in that first he says "What's got the Council rattled is that the allotmenteers are beggining to understand how increadibly inefficiently the service is run" suggesting he has a mandate to question the charges from many allotment holders but when goes on to say that he represents "Just me".

Posted by: dannyboy Nov 17 2010, 10:20 PM

Reading both sides I'd say the problem is that both of you think you are right & neither is willing to back down.

You musy have know rent reviews were going to happen. Claiming that they are unfair because they take place without giving an allotment holder the right to terminate their rental seems could be viewed as kicking up a fuss over a technicality that has been accepted for years.

Add the fact that allotment spaces are rather sought after....

Posted by: Iommi Nov 17 2010, 10:31 PM

'Proof' and 'fair' are yet to be decided.


I don't think so because you are mixing two different things. The first one is his opinion about what the council think, the other is about who is pursuing a complaint.

Posted by: Iommi Nov 17 2010, 10:33 PM

Or it could be about betting things done properly? I don't see anything wrong with that, and SK is prepared to put his allotment on the line for this cause. I hope he doesn't end up a martyr.

Posted by: On the edge Nov 17 2010, 10:35 PM

He has every right to complain and campaign if he feels he's been unfairly treated. Of course, quite rightly, he is only representing his own case but that does not mean he doesn't know excatly how his peers feel. This may all be regarded as kicking up a fuss over a technicality that has been accepted for years. Boy am I glad there are still people willing to do that; we would have lost many rights over the years had not a few people taken a stand.

Posted by: Iommi Nov 17 2010, 10:40 PM

Top post! I 'fear' dannyboy and user23 are not bipartisan on this affair.

Posted by: user23 Nov 17 2010, 10:40 PM

He and a fellow allotment holder could write their account of events.

It could be called "From Tomatoes to Martyrs"

Posted by: dannyboy Nov 17 2010, 10:46 PM

True - but why wait until now to take it all the way? Sour apples on both sides methinks

Posted by: Simon Kirby Nov 17 2010, 10:54 PM

No, S.5(1) of the http://www.statutelaw.gov.uk/legResults.aspx?LegType=All+Legislation&title=unfair+terms+in+consumer+contracts+regulations&Year=1999&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&TYPE=QS&NavFrom=0&activeTextDocId=2730925&PageNumber=1&SortAlpha=0 defines the test of fairness as A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer. 'Good faith' here means that traders must deal fairly and openly with you. S.6(1) says ... the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.

Ultimately it's the court that decides whether a term is unfair by applying the S.5 test, but to give a bit of insight there's a grey-list that goes with the Regulations - examples of terms which are most likely unfair - and unfair rent review terms are covered by Schedule 2 S.1(l) [Terms which have the object or effect of] ... allowing a seller of goods or supplier of services to increase their price without in both cases giving the consumer the corresponding right to cancel the contract ...;


I claim no mandate, and I have no problem with you comparing me to Richard.

Posted by: Simon Kirby Nov 17 2010, 11:12 PM

Actually what I did first was meet the Chief Executive last summer and mention the Regulations to him so that the Council would have time to do the right thing. I also wrote to the Chief Executive in December mentioning again my understanding that the Regulations made a rent increase without notice unfair. I also wrote to Cllrs Ifor Sheldon, Julian Swift-Hook, and Arthur Johnson cautioning them that it was my understanding that a rent increase without notice would be unfair under the Regulations. I received no response from any of them. After the rent increase was approved the Society asked the Council to suspend the increase pending investigation of the issue, but they refused, and so I reported the matter to Trading Standards who upheld my complaint and the Council had to redraft the tenancy agreement. I refused to pay the increase because I believed it to be unfair, and the Council issued one months notice of eviction as required by the tenancy agreement and allotments act to expire 17 May. I gave the Council an ultimatum on 16 May either to issue court proceedings seeking possession within 14 days, or else to relinquish their claim and resign - I figured I'd had my allotment longer than there'd been a town council so if they could evict me with so little engagement and consideration I was happy to see them resign for trying to bluff me. The council instead wrote me a letter saying that they'd evict me December 13.

I have since written to encourage the councillors to discuss the issue with me and have had no response, until at last the Chief Executive responded to my request to escalate my complaint to Committee. That's where we are now.

Posted by: Newbury Expat Nov 18 2010, 01:13 AM

But isn't it one of the hallmarks of a democracy the opportunity for an individual to stand up for his rights? Maybe that's idealistic and maybe naive, but I think it's a positive sign when one stands up for their principles.

Furthermore, just because others may not be as vocal, does not mean their rights are not being affected. If we took the stance that we couldn't be bothered, wouldn't this laissez-faire approach be almost exactly what most people on these boards are against.

I had taken you to be one of the 'action oriented' people here and did not like it when people complain about things if they are not prepared to do anything about it. My apologies if I read you wrong, but I'm pretty certain that you have consistently asked someone having a moan "what they are going to do about it". On this topic you seem to be only interested in belittling Simon's efforts in something he clearly feels very passionate about and to which he is putting that passion into action.

It does seem instead that you prefer rather to be contrarian without a consistent point of view and an intent of posting to provoke. A waste really.

Posted by: user23 Nov 18 2010, 07:48 AM

I'm belittling no one. I'm just saying that he doesn't seem to have the support of anyone else, probably can't prove that these charges are unfair and doesn't seem to have thought about the consequences of not increasing the rent.

Just because one feels very passionate and is outspoken about something doesn't make them correct and doesn't make them immune from criticism.

Posted by: Simon Kirby Nov 18 2010, 09:03 AM

Your're pretty much right when you say I have no support.

Whether the court agrees that the rent review term fails the Regulations' fairness test is a decision only the court can make and I'm no lawer so there is a big risk for me here. I've laid out my argument and I'd be interested to know what you think. Being taken to court is not my choice and if I can avoid it I will. I would rather the Council discussed this rationally and calmly, but I won't be intimidated if they won't.

Consequences? First off the Council need to be able to increase the rent lawfully, and if it can't then that's that. The problem is that the tenancy agreement is unfair, and the Council had plenty of warning that it was unfair but they chose to do nothing about it. Drafting a fair agreement is simple enough. Having the rent track RPI is automatically fair, and it's likely that the current term would be fair if the agreement included the requirement to give at least 12 months notice of the increase. The Council could have chosen to comply with the Regulations, but instead I had to make a complaint to Trading Standards before the Council would comply.

I'll mention too that the Council might well have brought this to a satisfactory conclusion had they just offered me the new agreement, but I was offered it pre-evicted - I would still have to leave 13 December. I declined.

I've also considered the consequence of the Council raising £5k less in revenue. I've posted http://forum.newburytoday.co.uk/index.php?showtopic=949&st=0&p=25856&#entry25856 how inefficiently the Council administer the service. The answer is not to charge higher rents, the answer is to be more efficient, and self-management is the solution. I've researched this at some considerable length and given the opportunity I would introduce it in Newbury with a saving to the tax-payer of around £100k. I've asked the Council to discuss this with me and they won't.

And of course there is a consequence to the Council of being caught in a lie. If the Council decide at this late hour that the rent review term is enenforceable then they need to explain why it took them eighteen months to work it out. And if the Council decide on Monday that they were right all along then the consequences for them will be worse still if they lose in court.

Posted by: dannyboy Nov 18 2010, 09:15 AM

But you have been wanting to take the allotments into self management for 3 years. The council has said no to that, so it could be interpreted that you picking up on the technicality of the rent increase is in response to that - as if you have been out looking for something to moan about.

Posted by: Iommi Nov 18 2010, 09:42 AM

Is there a problem wishing to change things for the better, especially if it saves tax payers money? Even if not, he is unhappy about how the allotments are run, just because others suffer from deference, shouldn't mean he should remain reticent, I feel.

Posted by: Simon Kirby Nov 18 2010, 09:56 AM

Dannyboy makes a fair point. I am seen as a trouble maker. It's not my intention to make trouble for trouble's sake, but the perception is a problem for me because it alienates allotmenteers and the few decent councillors who might otherwise engage. It's unfortunate, but I am rather abrasive. I wish it were otherwise because it doesn't help what I'm trying to achieve. It's also made it easy for the Council to undermine my initiatives.

Posted by: dannyboy Nov 18 2010, 10:03 AM

You need to become a secret organ grinder & find yourself a monkey.

Posted by: dannyboy Nov 18 2010, 10:04 AM

Change things for the better is one POV. Trying to gain control of a council asset is another.

Posted by: Iommi Nov 18 2010, 10:15 AM

The idea is allegedly to save tax payers money and run the allotments more efficiently? It could be seen as councillors trying to protect their self importance? The allotments would always remain a council asset.

Personalities should never come into this.

Posted by: Simon Kirby Nov 18 2010, 10:38 AM

And that's really rather the point: allotmenteers don't want controlling, and only a control-monger would think of self-management like this. Self-management makes the allotmenteers responsible for cutting their own paths, and hedges, collecting their own rents, and doing their own site inspections. Visit some self-managed sites and see for yourself. It's not rocket surgery, and it doesn't cost £200 per plot that NTC charge the tax-payer. Even without the saving self-management is a good thing because of the community it engenders, but when it saves £100k of tax-payers money it's a no-brainer.

Posted by: dannyboy Nov 18 2010, 10:50 AM

Saves £100k of what money?

Posted by: JeffG Nov 18 2010, 11:23 AM

I didn't find the relevant post, but I assume you have paid the previous amount and just withheld the increase that is in dispute?

Posted by: Simon Kirby Nov 18 2010, 02:52 PM

Yes Jeff, that's right. I paid at last year's rate.

Posted by: Simon Kirby Nov 18 2010, 07:52 PM

Allotment self-management would save £100k of tax-payer money. The NTC precept would be £100k less if the Council implemented allotment self-management.

Under fully-devolved self-management the allotment service would be self-funding and receive no financial support from the Council and the Council would have no involvement in the service and expend no resources to support it so you save the whole of the cost of the service.

So you save £21,680 running costs, £35,450 staff costs, £3,598 of service overheads (mostly budget margin), debit £17,500 for the revenue, £19,631 saving on the back-office, and because the Council now delivers 16% less services than before you also shed £34,226 of overheads (things like town hall, civic duties, committee expenditure, young people's council, and grants), so that's a total saving on the precept of £97,085.

All of those savings follow naturally except the overheads, and saving on these overheads is largely a question of reining-in the budgets to account for the Council being 16% smaller, and that's straight-forward for all but the town hall.

I've given a breakdown of how those savings, and others, could be made in http://forum.newburytoday.co.uk/index.php?showtopic=949&st=0&p=25856&#entry25856.

None of that makes any savings from efficiencies, but there's something to be said here too. It costs the Council around £185 to administer each plot (compare that with the average plot rent of £35). That's not cutting the site hedges or mending the fences, it's the administrative things like collecting the rents and issuing new tenancies. Site administration can be commercially out-sourced http://www.allotmentssouthwest.org.uk/index.php?page=allotment-admin-services, and the company makes a profit on that. It would be interesting to know if that kind of efficiency is replicated in the other council services.

Posted by: Richard Garvie Nov 19 2010, 09:16 AM

There are a number of people having a pop at Simon for fighting for something he believes in. Even if you think he is wrong, he is still entitled to have his say. Likewise, the council believe they are right and have suggested that if anyone should want to propose self management, they will listen to any idea if it saves the council a bit of money.

My own view would be that if this is to avoid going to court, all parties need to be locked into a room until they agree either way or somewhere in the middle. If this goes to court, it's going to cost the taxpayer, and at a time when people are having a pop about Christmas Lights and such like, I think that with a bit of humility and an open mind heading into a group discussion, maybe court action could be avoided.

My final point would be that this argument has become very personal. I wasn't aware that Cll Fenn had asked what she did at the council meeting, and as it could be suggested that their is a little history between Cllr Fenn and Simon, that line of questioning is unacceptable. If she has used her position as a councillor to influence other elected members regarding Simon as a person because of personal differences, that is morally wrong (never mind legally?).

I really hope there is a suitable conclusion on Monday night, I may even come along. Do you have to register to speak Simon?

Posted by: dannyboy Nov 19 2010, 10:56 AM

There must be more to it than simply opting for self management = saving the council £100k.

If that were the case, the allotment management would have been farmed out years ago.

Posted by: Richard Garvie Nov 19 2010, 11:00 AM

I think it needs to be researched and if viable, a full proposal worked out and presented to the council. If there are significant savings to be had, there is no reason not to go to self managed sites, providing everyone is in agreement that they want to self manage.

Posted by: dannyboy Nov 19 2010, 11:04 AM

The council does not need it 'presented to them'. They know where saving could be made. If the allotments were one of them, they would have done it.

Posted by: Simon Kirby Nov 19 2010, 11:39 AM

Well you tell me? Even if there was a sniff of a chance of saving £100k, wouldn't you have expected a couple of councillors to have come and talked to me about it?

It's certainly strange that http://www.newbury.gov.uk/Agendas10/agendacs100301.pdf not to recognise the Wash Common site association whilst self-management was an implicit aim. And that only just scratches the surface.

For me it's not so difficult to understand when you realise self-management is not saving the council £100k, it's saving the tax-payer £100k. For the Council there's no up-side. Allotments are a £125k turnover business, so why would the Council want to lose that business. Almost no one knows who the Town Council are and even less know that NTC levy whatever precept they want, so there's pretty much zero pressure to save money. The Councillors want to be important and allotments is a big chunk of what NTC does, and if you're an allotment site steward too and get your plot free there's even less incentive to lose your personal control. For the officers, those that don't lose their jobs end up working in a smaller council with less prestige and staff and they'll end up taking a pay cut, and if the rot isn't stopped who knows what other services people will start doing for themselves, and before long NTC will be just a parish council with a part time-clerk, very much like other parish councils.

Posted by: dannyboy Nov 19 2010, 11:43 AM

There is your answer then. For NTC the allotments make money. Money that would have to be found elsewhere should the allotment revenue be lost. For me, as a none allotment holding tax payer it makes no odds.

Posted by: Richard Garvie Nov 19 2010, 11:55 AM

Danny, I actually think if you look at the figures, allotments cost us money. I believe part of the reason for the increase in rent is to make sure that those who don't have allotments are not subsidising those who do.

There is examples where self managed sites have saved money for the council, but then there are other sites where self managing has gone seriously wrong!!!

Posted by: dannyboy Nov 19 2010, 12:03 PM

Everything the council does we foot the bill for!


My guess is that the allotments create a surplus for NTC, a surplus why do not wish to lose.

Posted by: Simon Kirby Nov 19 2010, 12:35 PM

http://www.newbury.gov.uk/preceptleaflet2010-11.pdf. It's the breakdown of NTC's precept that WBC collect for the Town Council with your council tax.

See the 'Allotments' service? £3.43 is the nett cost to the average council tax payer for the allotment service. That's the nett cost, it's already had the revenue taken off it.

But that's not all.

See the 'Administration' service? Well, administration isn't a service, it's another cost of providing the actual services, so you have to apportion that to the services to see what they really cost. That's another £1.56 for the allotments.

See the 'Town Hall Running Costs', 'Civic Duties', 'Committee Expenditure', 'Newbury Young People's Council', and 'Grants'. None of these things are services either, they're things the Council does to support the services it provides or just because it's a big Town Council and it can. If you want to see the true commercial cost of providing the allotment service then you also need to apportion these overheads and their associated administration to the true services. That's another £2.72.

So the nett cost of the allotment service to the average tax payer is £7.71. That's a total bill to the Newbury tax payer of £97,167. That's nett, the service turnover is £114,667, and the cost is offset by revenue of £17,500. If the Council self-managed their allotments the tax payer would save £97,167.

Posted by: dannyboy Nov 19 2010, 01:44 PM

If the allotmtns were self run do you really think my Council Tax bill would drop by £7.71

Posted by: Simon Kirby Nov 19 2010, 01:49 PM

Yes, if you're on band D. Of course, it'll be a cold day in Hull before the Council let that happen.

Posted by: Simon Kirby Nov 22 2010, 08:37 PM

I got a fair hearing and Cllr Johnson was very accomodating and let me make my argument and even come back in on the discussion, but the Council didn't uphold my complaint.

Posted by: Richard Garvie Nov 22 2010, 08:48 PM

As long as you got a fair crack of the whip, that's the main thing. What happens now?

Posted by: Simon Kirby Nov 22 2010, 09:54 PM

I guess we all trapes off over to the county court in Reading now.

Posted by: Richard Garvie Nov 23 2010, 09:25 AM

Will they not do it in Newbury?

Posted by: blackdog Nov 23 2010, 09:45 AM

Haven't had a County Court in Newbury for years.

Posted by: Missus Nov 23 2010, 11:27 AM

Is SK's money saving suggestion that Newbury should dispense with the up-keep of the Town Hall, the Mayor, the Committees, the provision of a voice for the the youth of Newbury and Grants to local organisations in order to keep allotment costs down? If NTC are doing these things "just because they can", doesn't providing allotments fall into this category too?

Posted by: Simon Kirby Nov 23 2010, 01:23 PM

I want allotment self-management because of the social benefit to the allotmenteers of us managing the service for ourselves, because we get to choose for ourselves how to develop our service, because it generates money for capital investment, and because it keeps our rents managable.

Personally I wouldn't mind too much if self-management cost the tax-payer more because I think the extra social benefit, both on site and in the wider community, would be worth the extra money. As it happens self-management actually saves the tax-payer money and that's handy for me because generally it's difficult to articulate the social-benefit argument, but everyone understands the bottom line. Self-management saves £100k.

That £100k saving is just a consequence of devolving the allotment service. The allotment service is about 16% of what the Council does, so if it's to provide 16% less services then it's not unreasonable to expect to see all of the non-service stuff it spends our money on contract similarly. Rather than wave my hands vaguely I've given some specific examples of where those savings would come from.

Dispense with the up-keep of the Town Hall: the town hall isn't a service, essentially it's office accomodation, and with 16% less to do I expect to see a 16% saving in that accomodation. I wouldn't be unhappy to see the building sold off and the town council relocated to an office on New Greenham Park.

The Mayor: Shave 16% off the £60-odd grand we spend on the civic budget and we'd still have a perfectly servicable mayor, though I'd be very happy to save all of that and become a parish council.

The Committees: You have to delve into the accounts to see exactly what comes under this head, but yes, without the allotments to worry about it's not unreasonable to amalgamate the arts and leisure committee into the community services committee and save 16% of the head.

The provision of a voice for the the youth of Newbury: Oh p-lease. The Youth Council has nothing to do with empowering our youth, it gives a few individuals the aspirations to control their peers just like their senior cousins, and that's altogether unhealthy. Scrap it, and give us all - youths and otherwise - responsibility for ourselves.

Grants to local organisations: I'm not entirely sure how it is the Town Council think they know better than me where I want to make charitable donations of my own money so I'd seriously think about scrapping this altogether, but as it is I've suggested a few of the most inappropriate items to trim the budget.



Funily enough allotments are the only thing parish councils are under a positive duty to provide (Small Holdings and Allotments Act 1908), absolutely everything else is optional.

Posted by: Richard Garvie Nov 23 2010, 01:51 PM

They do have a county court:

http://www.hmcourts-service.gov.uk/HMCSCourtFinder/Search.do?court_id=420

Posted by: Missus Nov 24 2010, 01:38 PM

Perhaps NTC should cut all other services and just concentrate on allotments as SK wants. No cemeteries would be needed as burials could take place on allotments, children could play between the rows of cabbages instead of in playgrounds and the Mayor could share SK's shed. The Town Hall could be sold off and turned into bedsits for more "affordable housing". Just out of interest, may I ask how much it is you pay for your allotment, to justify such contempt for the council ?

Posted by: Iommi Nov 24 2010, 02:02 PM

While you might see it like that, if what Simon Kirby says is true, the council have been as, if not more contemptuous. This is more than just cost; it is one of principle. People should stand-up for what they believe to be right. One day it could be you that might suffer from an overbearing council.

Posted by: Simon Kirby Nov 24 2010, 04:53 PM

I gave you a very full answer and nowhere do I suggest any service cuts whatsoever. I suggest that self-management will improve the allotment service whilst saving £100k. No other services are affected by this. My primary interest is the quality of the allotment service and I propose self-management because it improves the service. That it saves £100k of tax-payer's money is an added bonus and helps me make the case for self-management where people are not so familiar with the allotment movement.

http://forum.newburytoday.co.uk/index.php?showtopic=949&st=0&p=25856&#entry25856 I make specific money-saving suggestions because public money is tight. It's insightful to see how NTC could save 33% on the precept, but doubly so because again none of the Council services are cut, they're just delivered in partnership with the community.


But now you're confusing services with overheads. All of the Council services could be operated from an office on New Greenham Park without any need for a mayor. Actually there's a case to be made that the cultural authority engendered by the mayor and town hall are part of the Council's problem and that were they to see themselves more as services providers rather than feudal overlords they might serve the town better. But whatever, if money's tight and it's a choice between all that pomp and say a day care centre I know what I'd want my money spent on.


You miss the point. My contempt for the Council doesn't stem from the cost of my allotment, but from their arrogance. This thread specifically is about the unenforceability of the rent increase. In short because of some consumer protection legislation the Council have to give 12 months notice of any rent increase. The Council's position is that people should just shut up and do as they're told. I think that attitude stinks and I feel strongly enough about it to risk my allotment calling the Council's bluff.

I am also contemptuous of how the Council have suppressed discussion of self-management to protect their self-interest. The Council have accused me of spreading misinformation about allotment rents, but in this thread I've shown how Cllr Arthur Johnson and the Services Manager have apparently mislead the West Mills tenants' meeting and Newbury allotmenteers generally. Cllr Johnson said in effect that Newbury's allotment rent is only average whereas it is in fact about twice the going rate, and the Services Manager wrongly implied that self-management produced rents of well over ten times the current rate and that's utter nonsense.

I'm also contemptuous of how the Council has victimised me for starting a site association and attempting to empower allotmenteers. In this thread I have given as an example how Cllr Marion Fenn made what I believe to be false and malicious accusations against me at a meeting of the full council. The Council later took up Cllr Fenn's proposal to label me as a vexatious complainant to stop me raising the question of self-management and the rent increase at council meetings, and they have also suspended my right to free expression by preventing me raising awareness of these issues on the society notice board. Incidentally, I mailed Cllr Fenn to give her the opportunity to post here those "crude and offensive" emails she supposes me to have sent, but she appears to have been unable to do that. Just to be fair, I have a copy of every e-mail I've sent over the last three years so if anyone want to trawl through them and expose any that are "crude and offensive" then I'd welcome it.

Anywho, you think this is about the money? My rent is £47.10, and the Council put it up to £69.40, and I withheld £22.30. I wouldn't want to deprive the allotment service or over-burden the tax-payer just because of the Council's arrogance, so here's an idea: If the Council make a genuine commitment to self-management within the next 12 months I'll make a £250 donation to improve site facilities - and if Cllr Fenn can't substantiate her personal accusation against me then I'll accept a similar contribution towards site facilities from her by way of apology.

Posted by: Cognosco Nov 24 2010, 05:14 PM

All seems straight forward and fair to me. Come on Cllr Fenn lets see the evidence as you have publicly accused Simon lets see the evidence as suggested?

Posted by: user23 Nov 24 2010, 06:48 PM

Hang on, that's £70 to rent a bit of land in Newbury for a whole year? £70?

That's dirt cheap, if you pardon the pun.

Posted by: Strafin Nov 24 2010, 07:00 PM

But that isn't the point. If you're landlord increased your rent by 50% with no notice or reasoning you wouldn't stand for it would for you?

Posted by: Iommi Nov 24 2010, 07:01 PM

It is, but that ain't his issue.

Posted by: user23 Nov 24 2010, 07:04 PM

But that's the real issue here. It's £70 to rent a bit of land in Newbury for a whole year.

Posted by: Iommi Nov 24 2010, 07:19 PM

You know that is not SK's the substantive problem with the council. He has gone to great lengths to explain his situation. He has explained it well in my view.

Posted by: user23 Nov 24 2010, 07:54 PM

But what it all boils down to is he's moaning about paying £70 a year to rent a plot of land in Newbury.

Posted by: Iommi Nov 24 2010, 08:00 PM

It is clear from the numerous posts that this is not true, but is merely your spin to try and discredit Simon Kirby.

Posted by: user23 Nov 24 2010, 08:03 PM

No, this is my opinion, that £70 is cheap to rent a plot of land in Newbury.

Disagree if you like but don't say I'm trying to discredit someone by expressing it.

Posted by: Iommi Nov 24 2010, 08:17 PM

That bit is OK, to a degree (it is cheap as a piece of land goes, but it seems it is not cheap as allotments go), but I am challenging your use of the 'it boils down to' bit; it doesn't (in my view). His complaint boils down to the behaviour of the council.

Posted by: On the edge Nov 24 2010, 09:35 PM

Sorry folks but £70 per annum for a 'bit of land' and that's just what it is does seem a bit expensive to me. Particularly as most of this land is in places where no one would (should) be permitted to develop. OK, I'd pay that willingly to be able to park my car; so long as it was near my office. Would our planning people like that?

Posted by: dannyboy Nov 25 2010, 09:48 AM

£70.00 a year is cheap. try renting a comparable town centre plot.

There is no saving of taxpayers money. NTC have to put something in the accounts under the heading 'Allotments' because if they didn't they'd lose that funding.

For all we know the other allotmenteers could have asked NTC to get rid of SK!

Posted by: Simon Kirby Nov 25 2010, 10:50 AM

This protest is specifically about the Council's willingness to ignore consumer protection legislation and use their weight to intimidate the town's allotmenteers into paying up regardless. I think that's morally wrong, but I'm not sure I'd have opposed the Council were it not for a catalogue of previous abuse, and when the Local Government Ombudsman gets through with their investigation of the WBC Standards Board I'll be seeking redress for every little bit of it. Motivation is complex and I don't propose to over-analyse mine, so if you want to understand my motivation to be my indignation at the cost of my allotment then fine, unless of course you think that excuses what I'm complaining about?

So anywho, £70 cheap? Compared to what?

It's not cheap for an allotment. Here's some analysis from the start of the year of the cost of local sites, and there's Newbury at the top. It's a random sample so you'll find more expensive sites if you look hard, but you'll find cheaper sites too. It's statistically fair to say Newbury is around twice the likely average (and if you're into such things I used the central limit theorem to estimate the likely population mean to be in th £3 - £4 range with a confidence of 90%).


It's not cheap for agricultural land either which rents for around £100 per acre - that's effectively £8.33 for my 10 pole plot. Not exactly comparable, but not an unreasonable comparison either because essentially an allotment is somewhere to grow fruit and veg - it's a fundamental rule and condition of the allotments act.

If you want to compare the cost to other leisure activities then of course, £70 is cheap for a golf club membership, and it's cheap for a Gym membership, but it's £70 more expensive than running or cycling or walking the dog in the country, so it's a bit meaningless making those comparisons.

Another way of looking at it is how much does it need to cost? I've shown already that commercial out-sourced allotment site management is available from £7 per plot, and when you compare that to Newbury Town Council's costs of administration of £185 then you start to see where the problem lies. I know of self-managed sites that are self-financing at around £20 for a twn pole plot, but the budget I've prepared for self-management in Newbury works out around £50 for a ten pole plot. At this rate the sites generate some revenue for capital investment so I'd argue that this is a fair rent.

So no, £70 is not cheap for an allotment, it's about twice the going rate, and it's £20 more than it needs to be.

Posted by: dannyboy Nov 25 2010, 10:52 AM

But NTC use the allotments to generate income.

Posted by: Simon Kirby Nov 25 2010, 10:58 AM

Agreed. An allotment is cheaper to rent than a retail unit in Parkway.


Erm, OK. Are you accusing NTC of illegal accounting? That's a serious allegation, I hope you can substantiate it.


From what I understand there has been something of a campaign against me. I can't answer for the motivation of the organiser.

Posted by: Simon Kirby Nov 25 2010, 10:59 AM

Didn't I answer this already?

Posted by: dannyboy Nov 25 2010, 11:07 AM

Illegal accounting? Not at all. I'm merely suggesting that there are no savings.

Comparring a retail unit to an allotment is supurious. You'd be unable to rent a comparable plot of land in Newbury twon centre for £70.00pa.

Posted by: dannyboy Nov 25 2010, 11:09 AM

You did, but then you claim that you could save me & the other taxpapyers of Newbury £100k.
Either the allotments are making a profit, or they are a drain on council cash.

Posted by: Iommi Nov 25 2010, 11:22 AM

Are the council entitled to make a 'profit' under these circumstances?

Posted by: dannyboy Nov 25 2010, 11:26 AM

I think it is called a surplus.

the surplus will be used to fund services where there is a deficit.

I'd say the allotments make a sizeable contribution towards these loss making services, or services where there is no income from the users at all. Hence NTC's reluctance to consider self management.

Posted by: Simon Kirby Nov 25 2010, 12:00 PM

Well yes, that's exactly what you are suggesting. I pointed you at the council's accounts and I showed you how much the allotment service costs the tax payer according to those accounts, and then you said that actually allotments cost the tax payer nothing and the council only put something in the accounts under the heading 'Allotments' because if they didn't they'd lose that funding.

I've given you a detailed breakdown that shows how much the allotments cost, if you want to refute that then show me the money.


Help me out here: It was your comparison.

Posted by: Simon Kirby Nov 25 2010, 12:03 PM

Some Councils do operate their service at a profit, and at one time there was legislation to ensure that the maximum loss was only (I think) 8p in the £, but that's been repealed.

As it is NTC operate the allotment service at a loss of around £100k, and the figures are in this thread.

Posted by: Simon Kirby Nov 25 2010, 12:06 PM

Have I said something inconsistent? NTC operate the allotment service at a nett cost to the tax-payer of £100k. The allotment service does not make a profit, it makes a loss of £100k. If the Council fully devolved the service onto the allotmenteers it wouldn't cost the Council any money to provide the service and it would save the tax-payer £100k.

Posted by: dannyboy Nov 25 2010, 12:09 PM

I'd like to know where you can rent a plot of land, in the centre of town, other than an at a council allotment for £70 a year. It is cheap.

I didn't say that the allotments cost ther taxpayer nothing. They cost the tax payer exactly what is in NTC's accounts. What I am saying is that the actual, cost of the running the allotments is most likely less & that the allotments generate a surplus.

Posted by: dannyboy Nov 25 2010, 12:17 PM

you have already said that if the allotments were devolved my council tax bill would not go down.

and - The difficulty is that the Town Council strongly oppose self-management because they'll lose a £120k turnover business.......I'll form a not-for-profit management trust

do you really think it actually cost £185 per plot to run the allotments?

Posted by: Iommi Nov 25 2010, 12:20 PM

I'm sorry dannyboy, your arguement is getting a tad anal. This isn't just about the cost, there is more at issue than cost and SK has stated as much many times.

Posted by: Iommi Nov 25 2010, 12:22 PM

Turnover is not profit.

Posted by: dannyboy Nov 25 2010, 12:23 PM

I'm just being as anal as SK. IMHO it is about the cost, but that isn't as noble as fighting a matter of principle is it? If it isn't about the cost why bang on about saving tax payers £100k when you & I both know not a single Council Tax bill would fall if allotments were self managed. .

Posted by: Simon Kirby Nov 25 2010, 12:32 PM

Yes, and I agree with you, if you want to rent an allotment in the town centre where there isn't an allotment site then it will cost you more than £70. That it costs less to rent an allotment at an allotment site than it does in the town centre is not a compelling argument for the allotment rent being cheap, it just illustrates the ecconomics of land use. I might just as well argue that £70 is expensive for an allotment because I could rent a croft on Shetland for less.

If you're saying that £70 for an allotment is cheap because the site could be developed for retail which commands a much higher rent then that doesn't work either. Allotments have statutory protection from development, NTC is under a legal duty to provide allotments, and PPG17 protects sites from development. When you see an allotment site in the middle of a development the site doesn't have any value other than as an allotment site.


Then what you are saying is that NTC are illegally accounting for costs under the allotments head when they should properly be accounted for under another head. You need to bring this to the attention of the auditors because it is illegal. Dannyboy - do you have some inside knowledge to justify this accusation, or are you just fabricating this story?

Posted by: dannyboy Nov 25 2010, 12:38 PM

No I have no knowledge, other that having worked in large businesses where an absolute to the penny costing is impossible.

I'm saying that to be able to rent a plat of land in Newbury for £70.00pa is cheap. I' am talking about a directly comparable bit of land, for the exact same use. Do you think you would be able to rent some one's back garden to grow veg in, for £70.00pa ?

Posted by: Simon Kirby Nov 25 2010, 12:49 PM

I'm sorry if I wasn't clear. To answer your question, yes, self-management would reduce a band-D council tax payer's bill by £7.71. As the different bands pay different amounts of tax I can't say exactly what your saving will be unless I know your band, but band-D is pretty much average so it illustrates the saving.

My comment about the Council not letting it happen was made because the Council don't want to lose what for them is a £115k turnover business. The Council are not concerned about the £100k cost to the tax-payer of that business, their only concern is losing that business. They will never allow the allotment service to become self-managed.

Posted by: Iommi Nov 25 2010, 12:54 PM

You obviously have selective reading. He has listed a number of complaints, cost is but one of several factors in this.


Saving the tax payer £100k does not = a council tax reduction.

Posted by: dannyboy Nov 25 2010, 12:59 PM

He may have listed 'several complaints' that still does not alter my opinion.

Apparently the savings will be passed on - see above.

Posted by: Simon Kirby Nov 25 2010, 01:33 PM

Sorry, but you can't just refute my analysis just because it isn't convenient. At the very least you could say which heads you suppose to have been falsely inflated and which reduced. Why do you suppose any sloppyness in the Council's acounts would necessarily falsely inflate the allotment services costs as against any other service? I've made a longitudinal study of the Council's costs over the last seven years and I can't see any pattern of differential movement in costs, so if it is deliberate false accounting it has survived a complete regeime change at the Council and that seems unlikely. I'm sorry, but I've gone to some effort to make my argument rigorous, and in fairness I don't see any merit in your intuition.


Only an allotment plot is directly comparable to an allotment plot. Your argument that allotments are cheap because allotments are cheap is circular.

Posted by: dannyboy Nov 25 2010, 01:38 PM

Now you are using spin.

I have never said that the costs are 'inflated'.

Posted by: dannyboy Nov 25 2010, 01:42 PM

My comment about the Council not letting it happen was made because the Council don't want to lose what for them is a £115k turnover business. The Council are not concerned about the £100k cost to the tax-payer of that business, their only concern is losing that business. They will never allow the allotment service to become self-managed.

Are you suggesting that they are not entertaining any proposals for self management because it would eventually negate their reason to exist?

Posted by: Simon Kirby Nov 25 2010, 02:49 PM

That is precisely what I am suggesting.

Posted by: dannyboy Nov 25 2010, 02:53 PM

I'm glad that has been cleared up.

Posted by: Simon Kirby Nov 25 2010, 03:00 PM

Sorry, I've misunderstood what you meant. Weren't you saying that the true cost of the allotment service is less than NTC account for (to the tune of at least £80k) because they account for non-allotment costs on allotment heads, and that in reality the allotment service turns a worthwhile profit? You said "NTC have to put something in the accounts under the heading 'Allotments' because if they didn't they'd lose that funding."

Posted by: Simon Kirby Nov 25 2010, 03:04 PM

Very good.

Posted by: dannyboy Nov 25 2010, 03:09 PM

I took your comments about NTC not wanting to lose the allotment business to mean that there was something ( other then the justification of their own existence ) in it for them. ie there is a surplus.

I imagined that this surplus would arrise because as NTC don't have staff or resources allocated expressly to the allotments & their upkeep they can't with 100% accuracy say what they cost to run.


A bit like the cost of janitorial services being allocated to cost centred departments in a large building. Say there are 10 departments & the cost of janitorial servies is £100.00. So each department has janitorial services costed at £10.00. Now, if one of those departments decided - well actually the janitors only empty the bins once a week, so we'll only put £2.00 down - then the departments budget is cut by £8.00 & there is an overall shortfall in funds to pay for the janitor.

Posted by: Simon Kirby Nov 25 2010, 03:44 PM

Sorry, I see. No, the allotment service runs at a very considerable loss - turnover is £115k, revenue £17.5, cost to the tax-payer £100k in round numbers. These are budgets rather than retrospective costs, but it gives you a good idea. My argument is that the Council don't care that the service costs us £100k because no one really cares what NTC get up to and WBC can't stop them charging whatever they want for their precept so there's zero pressure for them to ecconomise. All they're interested in is the turnover of £115k because that pays their wages and makes their elected councillors important.

NTC don't publish their manpower breakdown, but I used a Freedom of Information request to see who did what on the allotment service and it corresponds with my analysis of the precept breakdown - £17.5k revenue, £21.7k running costs, £35.5k service staff, £3.6k central overheads (mostly budget margin), £19.6k back office administration, £34.2k council overheads (town hall, mayor, grants, etc) - that's a nett cost of £97.1k and a band-D charge of £7.71.

I've analysed the running costs in the schedule of payments and although some items are spread accross different services it's possible to reconcile that pretty well with the budget line in the income and expenditure account. The only way the service cost could be inflated is if the council deliberately lied about the manposer effort attributed to the allotment service but I have absolutely no reason to suppose there's anything underhand going on.

NTC don't apportion the back office and overheads to the services, so in your example departments don't have to pay for their janitors, but that doesn't give a true comparable cost of the service. I've apportioned these costs to the services in proportion to the amount of service team effort - I figure that all things being equal it's the fairest apportionment, but if you change how I do this the relative service costs will change. NTC are really angry that I cost the services like this because they're embarrassed by the cost, but it's dishonest of them for example to try and pass of £172k of back office admin as a "service", and only an organisation that exists to administrate would think like that.

Posted by: dannyboy Nov 25 2010, 03:51 PM

WBC can't stop them charging whatever they want for their precept

Erm, OK. Are you accusing NTC of illegal accounting? That's a serious allegation, I hope you can substantiate it.

Touche!!

and what is Budget margin if not 'profit'.

Okay, so NTC don't pay for their bins to be emptied, but it seems what you say in post #104 basically agrees with the principle of my example.

You can't call the running of a public service as 'loss'. Otherwise everything WBC & NTC does is a 'loss'

Posted by: Simon Kirby Nov 25 2010, 04:02 PM

There's nothing illegal about it, it's just the mechanism that parish councils use to raise their revenue. They levy a precept on the borough council who collect it from us with our council tax, and because of that it can look to the casual tax-paying observer that it's just some other bit of money that WBC want from us. That can be a potential embarrasment to WBC if NTC increase their precept by 8% when WBC are forced to cut theirs, but there's not much WBC can do and NTC are happy with the confusion because they get to charge us what they want. Actually, there is a mechanism that I don't think has ever been used that would allow WBC to cap the parishes, but I don't know much more than that.


It's a council-wide cost, and some years it's in credit, some years in debit. You'd have to ask NTC what it is because I don't know.

Posted by: Iommi Nov 25 2010, 04:03 PM

I can't see that there is anything wrong in proposing a way to avoid something costing the tax payer.

Posted by: dannyboy Nov 25 2010, 04:08 PM

LOL, 'put something in the accounts under the heading 'Allotments' ' is soooo different from 'charging whatever they want'

Posted by: Simon Kirby Nov 25 2010, 04:09 PM

Well, it does make some sense to talk about operating services in profit and loss, but you're quite right, NTC has a more or less balanced budget, and I think the margin is the more or less bit, but over time it's balanced.

But it takes the best part of £1M to balance it because all of their services run at a loss. A few years ago the market service broke even, but even that corpse costs £40k to keep alive now. There are councils that generate a small profit from their allotment service by charging their self-managing site associations rent on their sites, but it's only a few hundred quid.

Posted by: dannyboy Nov 25 2010, 04:09 PM

we have already agreed that unless you abolish the Town Council, and let the running of local services devolve into a free for all, that isn't going to happen.

Posted by: Iommi Nov 25 2010, 04:31 PM

Too much self preservation? I don't agree anyway: what you do is have a reduced council, rather than no council.

Posted by: user23 Nov 25 2010, 05:29 PM

Self preservation?

Posted by: blackdog Nov 25 2010, 05:52 PM

Abolishing NTC would not make much difference - services would be run by WBC as they were before NTC was created. The question is whether they would do a better job.

Personally I would like to see more power devolved to NTC and see the town run for Newbury by Newbury people. Give them proper planning powers and give them back the assets taken from Newbury Borough in 1974 (that WBC haven't sold of to developers for a few pence). Let NTC run the Vision - or scrap it.

Posted by: Simon Kirby Nov 25 2010, 05:59 PM

We've wondered a bit and i wondered if we might discuss exactly why I think I have a good case when NTC take me to court to evict me. It'll help me to iron out any obvious problems with what I'm going to argue, and I think it would be good to have it down somewhere for when NTC lose and scratch their heads wondering why.

It's a little involved so shall I give it a go?

Posted by: Iommi Nov 25 2010, 06:08 PM

Yes, although as out-comes can never guaranteed, a little humility might be prudent.

Posted by: Simon Kirby Nov 25 2010, 06:34 PM

Humility, nah. But if I'm wrong I'm an idiot.

Right, so. The Council have given me an eviction notice and I won't leave so now they have to issue proceedings and ask the court to make a possession order. The Council will claim that I am in arrears because I paid £47.10 when I was billed for £69.40, and that they are entitled to possession, but I will argue that there are no rent arrears because £47.10 was my rent last year and that the rent increase is unenforceable because of the unfairness of the allotment tenancy agreement rent review term under the http://www.statutelaw.gov.uk/legResults.aspx?LegType=All+Legislation&title=unfair+terms+in+consumer+contracts+regulations&Year=1999&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&TYPE=QS&NavFrom=0&activeTextDocId=2730925&PageNumber=1&SortAlpha=0.

Good so far?

Posted by: dannyboy Nov 25 2010, 06:51 PM

You should pay the bill in full & then take the council to court yourself if you feel the review is unfair & unlawful.

Could it be argued that you should have read the T&Cs before you took out your tenancy?

Posted by: Simon Kirby Nov 25 2010, 07:05 PM

I have no claim against the Council so there is no action I can bring.


I'll get there in a minute, but no, unfair terms are unenforceable. Suppliers shouldn't put unfair terms in their contracts.

OK, so.

S.8(1) UTCCR 1999 says:


So if I can argue that the rent review term is unfair within the meaning of the UTCCR then it's not binding and any rent increase imposed by it is unenforceable.

Good so far?

Posted by: Simon Kirby Nov 25 2010, 09:09 PM

OK, so the Regulations make unfair contract terms unenforceable. The Regulations aren't bothered about how a particular contract term has been used - so the court isn't interested in how much the rent went up by - it's the rent review term itself that the Regulations can make unenforceable.

S.5(1) is the unfairness test. If a contract term passes the unfairness test then like S.8 says, it isn't binding.

The two essential elements of unfairness then are that the term causes a significant imbalance in the parties’ rights and obligations and that the imbalance is contrary to the requirement of good faith.


And S.6 says how the fariness test is applied.



so that means to apply the fairness test to the rent review term you have to consider a snapshot of the situation on the day I signed my allotment tenancy agreement, and you have to take account of how the other terms affect the fairness, and that it's allotmenteering we're talking about.

Posted by: dannyboy Nov 25 2010, 09:13 PM

So long as you can prove that it is unfair. As you say the amount of the inctrease is irrelevant. You signed a new contract knowing there would be a rent review after you signed. What is unfair about that? You knew it was going to happen.

Posted by: Simon Kirby Nov 25 2010, 09:17 PM

Absolutely. I'm asking you to work through it with me to see if I'm making a good argument, or else spot where I'm getting it wrong.

Posted by: dannyboy Nov 25 2010, 09:19 PM

edited the post since - So long as you can prove that it is unfair. As you say the amount of the inctrease is irrelevant. You signed a new contract knowing there would be a rent review after you signed. What is unfair about that? You knew it was going to happen.

Posted by: Simon Kirby Nov 25 2010, 10:02 PM

I'll post my argument fully, but essentially the rent review term is unfair because it doesn't consider the tenant's interests. The Town Council is a virtual monopoly supplier so I have no choice if I don't like their tenancy agreement, I have to like it or lump it, and it's this kind of situation the Regulations prevent. The Regulations force suppliers to consider their consumers' interests. In this case the Council just needed to ammend the rent review term so the tenant was given enough notice of the increase to be able to quit in good order - but I need to give you the whole argument to convince you of that.

Posted by: Strafin Nov 25 2010, 10:12 PM

I think you have a great case, and that you present it well. I for one am rooting for you.

Posted by: Simon Kirby Nov 25 2010, 10:19 PM

The allotment tenancy is an annual periodic tenancy. This means that the tenancy is a single continuous agreement with exactly the same terms and conditions from year to year, and this includes the rent. However, if the agreement has a rent review term then the rent can be increased according to the provisions of the term.

The agreement has a rent review term that says:

The rent will be revisable every year.

And there is an annexed Rule that says:
[the council will] m) Fix the rent for each allotment having regard for its area and review its rent once a year.

There's also a term to allow the tenant to quit the tenancy:

12. The tenancy may also be determined by the Council or the Tenant by twelve months notice in writing in compliance with the Allotments Act 1922.

There is no provision in the agreement to requires the landlord to give notice of any rent increase.

In summary then, the Council decides how much to increase the rent by and the tenant finds out how much that is when the bill drops through the door and has no choice but to pay because of the clause 12. requirement to give 12 months notice to quit.

Posted by: Simon Kirby Nov 25 2010, 10:20 PM

Cheers mate, that's kind of you to say so. [Edit] Here, wait, you're not on the waiting list for Wash Common are you?

Posted by: Simon Kirby Nov 25 2010, 10:34 PM

You also need to know that the Town Council put a letter in with the bill telling the tenant that if they didn't want to continue with their allotment then the council would accept the surrender of their tenancy and refund any rent pro-rata.

OK, so: the fairness test. I have to show an imbalance contrary to the requirement of good faith.

The council exclusively decide the rent without any reference to external standards. Rent is the single most important contractural term and so there is a significance imbalance in the rights of landlord and tenant.

That alone doesn't make the term unfair, because I still have to show that the imbalance is contrary to the requirement of good faith...

Posted by: Simon Kirby Nov 25 2010, 10:48 PM

http://www.newburytoday.co.uk/News/Article.aspx?articleID=15187

Posted by: user23 Nov 26 2010, 07:45 AM

I might try this with my gas bill. Refuse to pay any increase in cost yet still take the service they give and then suggest that if all their customers ran the service it would be a lot better.

Posted by: Strafin Nov 26 2010, 09:26 AM

Perhaps you could put the gas to good use by sticking your head in the oven....

I doubt that you have a predetermined cost set in your gas contract. I also suspect that if your gas price went up by 50% that OFGEM would get involved and you would have a perfectly good claim. Why are you so eager for people to get ripped off all the time?

Posted by: Iommi Nov 26 2010, 10:03 AM

...and I suspect if you were unhappy at the charge, that you have other options for getting your gas as well.

Posted by: Iommi Nov 26 2010, 10:55 AM

As the council will re-fund any rent paid, doesn't that balance the 'fairness' of the 12 months notice required?

Posted by: dannyboy Nov 26 2010, 12:14 PM

I'd say it does entirely.

What the council is saying is renew, but if you decide to quit afterwards because of the rent increase, we'll refund you.
And, it seems to me that the 12 months notice to quit is not of the councils making - twelve months notice in writing in compliance with the Allotments Act 1922.. It could be argued that the council is being more than fair by offering a refund precisely because of this clause being unfair.

Posted by: Simon Kirby Nov 26 2010, 01:07 PM

I can show that the term creates a significant imbalance in the rights of the parties because without the term the rent can't be increased and with the term the council alone can increase the rent by however much they want.

If I'm to show that the rent review term fails the unfairness test I also have to show that the imbalance created by the term is contrary to the requirement of good faith. The good faith test is that the term doesn't go further than it needs to protect the legitimate interests of the landlord and that so far as it can it protects the interests of the tenant.

1. If there was a free market in allotments and I was free to get an allotment from any number of local suppliers without restriction then that free market would tend to restrict the rent any one supplier would charge. However, because of the current popularity of allotmenteering parish councils don't let their allotment to people outside their parish and so as a Newbury parishoner I can only get an allotment in Newbury and the Town Council operate as a virtual monopoly. Without the free market giving the Council unlimited discretion to set the rent increase goes further than is necessary to protect their legitimate interests and allows them to exploit their monopoly position, and this is contrary to the requirement of good faith. This is a sufficient condition to find the rent review term unfair.

2. There is no requirement under the contract to give me notice of the rent increase so I won't necessarily know how much I have to pay until the rent is actually due. But on rent day, March 1st, I will have crops in the ground (leeks, parsnips, brussels, black currants, asparagus, rhubarb, onions, spring bulbs, etc), and I will have already bought in my seeds for the coming year in December, and I'll have bought my seed potatoes in January, and I'll have my shed, bean frame, fruit cage, pond, bench, which I can't use or store anywhere else, so even if I were contracturally free to terminate the tenancy on rent day I couldn't walk away without losing all of that investment. The Town Council acknowledge this situation because they wrote to me in May when my notice of eviction ran out and told me that because of the investment of time and money that they wouldn't be evicting me until December. This situation is also recognised by the S.1 Allotments Act 1950 ammendment that extends the statutory period of notice that a landlord has to give to terminate a tenancy to 12 months. As I am not able to escape the rent increase without loss the rent review term is contrary to the requirement of good faith. This is a sufficient condition to find the rent review term unfair.

3. As above, I won't necessarily know how much the rent will be until rent day. Clause 12 requires me to give a minimum of 12 months notice to terminate the tenancy and so I am contracturally obliged to pay the rent increase. The landlord is always entitled to accept the surender of a lease but it is at the landlord's discretion, and I have no right to end the tenancy other than by notice to quit, and for this I need to give 12 months notice. Consider this extreme situation: The landlord sets my rent at £100k and I get the bill on rent day, March 1st. £100k is a lot, but it's legally enforceable because it is incompliance with the rent review term. I have no right under the contract to end the tenancy for another 12 months so even if I refuse to pay and walk away the Council can enforce the contract by sueing me for the money, and at £100k it would be well worth their effort doing so. The fairness test is not interested in how the term will be used and whether the council is likely to set a rent of £100k, it is only concerned with the fair balance of rights. As I am not free to escape the rent increase the rent review term is contrary to the requirement of good faith. This is a sufficient condition to find the rent review term unfair.

The Council's offer to refund rent pro-rata is already a contractural obligation. The Tenancy Agreement says: WHEREBY the Council agrees to let and the Tenant agrees to take on a yearly tenancy ... at a yearly rental and at a proportionate rent for any part of a year over which the tenancy may extend. What this means is that if the tenancy ends before the end of the period the Council is obliged to pay back the rent pro-rata.

The Council's argument is that they will accept the surrender of the lease, and they have written to every tenant to tell them this. This doesn't save the rent review term from failing the unfairness test in either 1. or 2. above so it doesn't much matter whether it defeats 3., but in fact it doesn't. First on a technicality, UTCCR S.6 says that the fairness test is to be applied at the time of conclusion of the contract, and this for me was back in December before the letter, so it won't come into it. But it's more fundamental than that because the tenant can never rely on the landlord accepting the surrender of a lease because surrender isn't a contractural right, it's always the landlord's discretion, and the right of the tenant to terminate the tenancy is governed by clause 12 which insistes on a minimum of 12 months.

So that's the argument.

Posted by: dannyboy Nov 26 2010, 01:17 PM

So you not be in the situation you find yourself now if the rent review had taken place & been communicated to you prior to you signing for another year?

Posted by: Simon Kirby Nov 26 2010, 01:18 PM

It could be argued, but unsuccessfully. S.1 Allotments Act 1922 (as ammended by S. Allotments Act 1950) sets the minimum notice period that the landlord of an allotment garden must give, and it restricts the dates on which it can expire. There is nothing in the Allotments Act 1922 which affects the notice that a tenant must give. By common law the tenant must give 6 months notice to expire on the last day of the period, and clause 12 extends this to 12 months entirely at the whim of the landlord.

The issue of the refund is unrelated to the issue of the period of notice. By common law there is no apportionment of rent paid in advance so a tenant quitting on the second day of the period having paid the whole of the rent on the first day has no right to any money back whatsoever. The phrase in the tenancy agreement WHEREBY the Council agrees to let and the Tenant agrees to take on a yearly tenancy ... at a yearly rental and at a proportionate rent for any part of a year over which the tenancy may extend. changes that.

Posted by: dannyboy Nov 26 2010, 01:24 PM

The council is still being fair in offering a refund should you decide to quit due to the rent increase . As yu say the tennant has no right to any money back. But the council is being fair in offering this.

Posted by: Simon Kirby Nov 26 2010, 01:24 PM

The Regulations don't exactly give a foumula for making unfair terms fair so there are a number of ways the Council could have avoided their present difficulty.

A rent review term that pegs the rent to some external index is automatically fair under the Regulations, so pegging the rent to CPI or RPI would have been the easiest way to go. If they needed to increase the rent by more than that for any particular reason then they would just do what most other allotment landlords do and serve 12 months notice and then issue a new agreement with the new rent.

Another way to go would be to include a term that required the Council to give enough notice of any rent increase to allow the tenant to escape the increase without loss. For the reasons I've argued already 12 months notice would likely be fair. However, this doesn't necessarily make the existing rent review term fair because of the free-market argument, but it's certainly more difficult to argue unfairness with 12 months notice of the increase.

Posted by: Simon Kirby Nov 26 2010, 01:27 PM

Like I said, the tenant already has a contractural right to a refund. It's not a right under the common law, but the existing clause in the tenancy agreement creates a contractural right to a refund. None of this affects the fairness of the rent review term within the meaning of the Regulations.

Posted by: dannyboy Nov 26 2010, 01:31 PM

So you agree with what I said. You'd have paid your renewal had you known about it in advance.


You can't have a free market with allotments unless someone is going to give up some land.

Posted by: Simon Kirby Nov 26 2010, 01:40 PM

Just as a point of interest: periodic tenancies don't renew, they just carry on until they come to an end. It's an important distinction because the terms from one period to another are exactly the same, unlike say an insurance policy where you take out a year's policy and then renew it with another one. The new insurance policy has nothing to do with the previous one and it's terms and conditions are negaotiated when you renew it. With the periodic tenancy the new period is just another period of exactly the same tenancy with exactly the same terms and conditions - unless the agreement has a clause to allow something to change.

But to answer you question: How can I say? I'm just insisting on my right to make that decision.


Quite. And S.5 UTCCR says that the fairness of the term is assessed by taking into account the nature of the thing.

Posted by: dannyboy Nov 26 2010, 01:44 PM

Why do I get the feeling we'll be seeing this case eventually end in in the European Court of Human Rights?

Posted by: user23 Nov 26 2010, 05:02 PM

Yes, I have my gas cost set for the next nine months in my contract. If it went up by 50% I might be annoyed, but firstly I'd have a choice not to have gas and secondly the cost of the renting the allotments haven't gone up by 50%. I also don't think playing just over a fiver a month for a plot of land in Newbury is "being ripped off".

If you're going to be so wrong, don't be so rude.

Posted by: Turin Machine Nov 26 2010, 05:27 PM

£5 per month ? darn cheap at the price if you ask me. Bet there's still a waiting list.

Posted by: Iommi Nov 26 2010, 05:32 PM

Putting to one side user23's silly ramblings, and the fact I didn't understand the finer points of the issue, the thing that seems most unfair, is that there isn't enough notice given. As Simon Kirkby notes: allotmenteers would need to make commitments for the year before the new rent is advised, thus allotmenteers have made financial commitments, and possibly invested time to commit to a new year before the rate is known.

It seems to me, that it would be better if the council give greater notice. If for example, they gave a years notice, then Simon Kirkby wouldn't have a moral argument in my view.

Posted by: dannyboy Nov 26 2010, 05:36 PM

A year or more in advance gives no contingency for the council. They'd just resort to cancelling every contract & getting every tenant to sign a new one each year.
It would be interesting to know wht the last increases have been over the last 10 years.

Posted by: Simon Kirby Nov 26 2010, 05:37 PM

I would have no argument at all with that. It's what I've asked for, and it's pretty much the situation elsewhere.

Posted by: Iommi Nov 26 2010, 05:37 PM

At least understand the technical difference between an arbitrary plot of land in Newbury and an allotment plot of land in Newbury. Although I know you already do, but are just being deliberately obtuse.

Posted by: Iommi Nov 26 2010, 05:43 PM

Outside of common allotment practice, I do think the money asked is still good value, but I do also think it is important of people to stick-up for their rights as it is always harder to change things later. The ratcheting of the rent could just be the the thin end of the wedge. If allotmenteers act too timidly, they could end up victims of their own deference.

Posted by: Simon Kirby Nov 26 2010, 05:44 PM

No contingency? What do you mean? Other councils manage, how is Newbury so different?

Posted by: dannyboy Nov 26 2010, 05:51 PM

It is ridiculously good value. I bet there is a waiting list as long as my arm.

Biting the hand that feeds.....

Posted by: Simon Kirby Nov 26 2010, 05:52 PM

Rents went up 47%.

A proposal to increase rents to £25 per pole (that's £250 for my plot) was withdrawn, but it's still on the table, and that would have been a 430% increase - and now only a 360% increase!

There is a very good strategic reason why the Council would not want to give notice of its rent rises: With a year to organise Newbury's allotmenteers might hope to overturn a rent rise like that, so the Town Council want the benefit of surprise.

Posted by: Simon Kirby Nov 26 2010, 05:58 PM

User, if I'm wrong about the legal position then I lose my allotment, and I'm guessing you're not protesting about that.

But if I'm right about the legal position, are you saying that it's morally wrong of me to insist that the Town Council abides by consumer law?

Posted by: Iommi Nov 26 2010, 06:00 PM

It could be, but that is only one part of the issue. More people should insist that they are treated equitably, as that doesn't seem to be the case at the moment.

Posted by: Iommi Nov 26 2010, 06:05 PM

I am convinced that user23 and dannyboy are not without prejudice on this issue. For me; I don't think it is currently a lot of money, but I recognise that people should stand up for their rights, although I fear you might be dumping in your own nest. It would be better for you that there were more allotmenteers who thought and acted the same way as you.

Posted by: Cognosco Nov 26 2010, 06:59 PM

The amount of money is not really the argument if I understand what Simon is saying. It is about the council not abiding with contractual law. Why should anybody not abide by the law? Surely it should not matter whether it is a company, person or council they should ensure that the law of the land is being upheld. Being a council I would have thought they would be more concerned than other entities that they operated in a legal way? It does seem most unfair to give no notice of a rent increase especially with something like an allotment as Simon explains because of sheds, crops etc which would have to be removed. I would have thought the council would have known twelve months in advance that they would be increasing the rents and by how much. It does seem completely unfair to drop a letter through the letterbox stating a large rent increase one month in advance for something like an allotment.

I thought the council were there to serve the community? Not act like some type of rip off company?



Good luck Simon.

Posted by: Iommi Nov 26 2010, 07:42 PM

To be fair, the council without obligation inserted a term that they would reimburse people that wanted out. The problem is it is at a late stage in the process; commitments have already been made.

My 'ire' is the alleged way Simon Kirkby has been treated by the council. The council seem to be behaving without due courtesy. They should not take a challenge in a way that suggests they are taking it personally.

I do hope Simon gets a result, but I am surprised it has gone this far. I would have thought the council would have taken proper legal advice themselves; it is for this reason I am not wholly confident he will win.

Posted by: Simon Kirby Nov 26 2010, 07:57 PM

Yes, that troubles me too.

Posted by: Simon Kirby Nov 26 2010, 08:15 PM

Not quite. The obligation to reimburse has always been a term of the contract. That the Council have not previously honoured it is grubby, but it was always a right under the contract to be refunded pro-rata if the tenancy ended with time to run.

What the Council are relying on is that they have offered to accept the surrender of the tenancy, but this isn't a contractural term and doesn't affect the period of notice the tenant has to give to end the tenancy as of right. It can't be a contractural term, and nor can it affect the period of notice because that would require either the insertion of a new term or the modification of an existing term and you can't just change the terms of a contract - that's what a contract is, an immutable agreement. At best the Council's offer creates an equitable remedy if the council refused to accept the surrender and sued for the rent, but that's not something the fairness test is concerned with.

Posted by: the bloke on the street Nov 29 2010, 12:24 PM

Hello folk of Newbury, what a lively forum your town has!

As the General Secretary of the Great Yarmouth & Gorleston Allotments Association, I have been keeping an eye on this issue for some time.

your town council seem to be over-inflating the cost of providing allotments in Newbury

there are close on a thousand allotment plots in our Borough, spread over 15 sites.
Cost to tax-payer??, go on guess??





yep, Nil, zilch, nothing at all

rgds, The Bloke on the Street

Posted by: user23 Nov 29 2010, 01:23 PM

I think the issue here isn't the cost to taxpayer but the cost the the renter of the allotment.

Posted by: Iommi Nov 29 2010, 01:56 PM

Er... right! http://www.mysmiley.net/free-unhappy-smileys.php

Posted by: Cognosco Nov 29 2010, 02:31 PM

The issue surely should be the cost to the taxpayer in this economic climate?

If what Simon and the Bloke on the street are saying is correct then it costs the taxpayer nothing to run the local allotments!
What could be more persuasive than that?
So long as the yearly rents are affordable for everyone, which is why allotments have all the legal protection and why they were first set up, then It can only be a win win situation to let them be self managed.

Or can you explain why this would not be correct?

Posted by: Simon Kirby Nov 29 2010, 05:34 PM

Hi Bloke!

A 10 pole plot in Newbury costs the tenant £69.40, and then the tax-payer pays another £390. If a 10 pole plot from Great Yarmouth & Gorleston Allotments Association costs the tax-payer nothing, how much does it cost the tenant?

Posted by: the bloke on the street Nov 29 2010, 06:36 PM

Hi Simon,

for a 10 rod plot in our borough,
cost = £20 + £6.00 for Water (not available on all sites at present) + £2.00 affiliation fees to NSALG, + £1 admin / site secretary fees.
Total outlay = £29 per yr.
For a plot on a site without water supply, Total cost = £23 per yr

we also charge a one-off payment of 25p for a share in the association, all tenants are shareholders with a right to vote at our AGM.

rgds, the bloke in the street.

Posted by: Simon Kirby Nov 29 2010, 06:59 PM

Out of interest Bloke, how do you go about increasing the rent? Do you give any notice?

Posted by: the bloke on the street Nov 29 2010, 11:28 PM

our association gives at least 12 months notice of rent increases, this is also after it has been advertised at the previous yrs AGM

Posted by: Simon Kirby Nov 30 2010, 07:27 PM

Thanks very much Bloke.

I don't think allotment self-management is widely understood amoungst non-allotmenteers so I hope you'll get a few questions from members here who are curious about how effective it is for allotmenteers and how it manages to save so much money for the tax-payer.

Posted by: Simon Kirby Dec 2 2010, 06:28 PM

Sorry Richard, I didn't see this at the time. Can you explain your comment please? Do you have first-hand experience of allotment selfmanagement going seriously wrong, or is it possible you've been fed this rubbish by someone with a vested interest?