NTC Allotment Tenancy Agreement Options

[Simon Kirby]

As reported here, I've been in dispute with Newbury Town Council over the allotment rent increase. They have now revised the tenancy agreement which more or less resolves the dispute, but it's a humiliating climb-down for the Council, and as they haven't apologised and retracted my eviction notice I am repeating my demand that the councillors and Chief Executive resign.

The crux of my complaint is that the Unfair Terms in Consumer Contracts Regulations 1999 say that a tenancy agreement can't allow the landlord to increase the rent unilaterally and impose the increase without notice, and as that's what the agreement did it makes any rent increase unenforceable.

The Council dismissed my complaint out of hand so I took it to Trading Standards who I understand have agreed the changes to the tenancy agreement with the Council. Under the new agreement rent is due 1st March and although the Council still decide the increase they have to tell us about it by 1st February and it doesn't take effect until 1st April, so we get 13 months notice of any increase.

I'm demanding the resignations because the Council are demanding that I leave my allotment. My allotment's very important to me, and as I've had a plot at Wash Common for longer than there's been a Town Council I figure I've as much right to demand their resignation as they have my eviction. Point is they tacitly acknowledge that the rent increase was unenforceable and so they must know they have no grounds to evict me for not paying it. My month's notice under the 1908 Act expired 17 May, but they didn't figure that I'd stand my ground and risk losing my plot, and now I don't think they know what to do.

I can't agree that the Council should behave like this, but it's a bugger knowing how to hold them to account.

[Iommi]

You are not the first person to fall fowl of the erroneous legal department (in that case it was the WBC, to be fair). I can't see they have a leg to stand on. This is basic stuff. Presumably this is firing straight into the NWN. Did you continue to pay the rent that you normally do?

[Simon Kirby]

You are not the first person to fall fowl of the erroneous legal department. I can't see they have a leg to stand on. This is basic stuff. Presumably this is firing straight into the NWN. Did you continue to pay the rent that you normally do?

Hi, thanks for your take on this. Yes, absolutely, I paid the same rent as last year.

[Iommi]

It might be worth writing to the CEO about this, if you haven't already.

[On the edge]

This is absolutely disgraceful. In effect, terminating your tenancy simply because you have a commercial dispute with them! They do permit members of the public to turn up at some of the Council meetings. Particularly if NWN are notified in advance, it might be worth using that as an opportunity – and letting us on here know. I’d be more than happy to come along in support. I must admit, when the Town Council was first set up, I thought it did a very good job. Sadly not sustained and this latest simply reinforces my view; it's outlived its usefulness; it needs to go. Politics before people, how sad; they can't even run the allotments properly!

[Simon Kirby]

Thanks Iommi. Yes, I have made my position clear to the CEO. I've written several times, this was what I wrote in December as chair of the allotment society:

Hi Graham, Granville

...
I quite understand the squeeze on the budget, and I appreciate your talking to us about a possible rent increase. Our position is that we strongly support the current management arrangements and while we'd welcome the opportunity for our members to become more fully involved in the maintenance of the site and hence make some saving there, the majority of the cost of the service is administrative. It is in all of our interests to set a fair rent, and there may well be some scope for a modest increase, but much more than £5.00/pole begins to exceed the statutory requirement that allotments be let at such rent as a tenant may reasonably be expected to pay, when you consider the value of agricultural land and the price of vegetables in the shops. A substantially higher rent is also likely to change the nature and culture of allotmenteering, potentially excluding the target demographic. In fairness, if tenants are to carry the full cost of providing the service there should first be a serious consideration of the self-management option, but I would hope that the Council would take the view that allotments are a service to the comunity as a whole and that it is not inappropriate that the council tax payer supports the service - though I expect this would be easier to accept if there was sufficient supply to satisfy demand.

We'd sooner not have to mention this, but as a consequence of the Unfair Terms in Consumer Contract Regulations 1999 it is not lawful to impose a rent increase without notice, and the increase for existing tenants can't be decided arbitrarily, at least not without the tenants' consent. For us this means that any increase is limited to CPI (currently 1.5%, so 7p/pole) and we must be given 12 months notice. The regulations are enforced by Trading Standards who have already confirmed to me their application to allotment rental agreements. As we've discussed I see a lot of scope for the Society finding funding streams that are currently unavailable to the Council and I see this as a particularly powerful way of our partnership benefitting each other, and in the short term it should avoid any need for a substantial increase in rent - at least at Wash Common.

I also wrote to the Leader and Deputy Leader before the rent increase came up at P&R:

Hello Ifor, Julian

This Monday's Policy and Resources Committee is to decide allotment rents, and I can see some trouble ahead. Your Chief Executive has been kind enough to brief the Society on the proposed rent increases and invite our comment, which we have been grateful to provide. However, we may not have been direct enough. We don't think the proposed rent increases are lawful. We would like to head-off any public confrontation with the Council and would be very pleased to discuss the issues with you before the meeting, or equally grateful to accept an invitation to put our reservations directly to the Policy and Resources Committee. In short, this is our position:

6.2% increase for existing tenants.

The Unfair Terms in Consumer Contract Regulations 1999 makes it automatically unfair for the landlord either to impose an arbitrary increase in rent, or impose it without notice. Only a November RPI increase of 0.3% would not be automatically unfair, effective from April 2011. I have confirmed the applicability of the Regulations with Trading Standards, and they would enforce the regulations. For reference, in the seven years for which you have published figures, the Council has increased rents by 40% in real terms.

£25/pole for new tenants.

The Council would be acting ultra vires if it imposed such a rate. The power to set rent is from S.10 Allotments Act 1950 which prescribes that allotments be let at such rent as a tenant may reasonably be expected to pay for an allotment, no more, no less. Howard v. Reigate & Banstead BC, November 1981 established that reasonable here means a fair rent for an agricultural plot, and not a rent to cover administration costs. For reference, the average rent nationally is around £4.00/pole.

However, we recognise that the Council has a problem with the efficiency of the administration of the service. The administration cost for self-managed sites is around £1/plot, and commercially out-sourced administration is available for around £7/plot. With reasonable costs for maintenance and water at around £9/plot and £6/plot respectively it's easy to see how the average site generates surplus revenue for capital investment from rents lower than ours. The problem is that Newbury Town Council's administration works out at over £100/plot.

What's inescapable is that the Council has a duty to provide allotments. Actually it's the only service a Town Council has a positive duty to provide, so the Council needs a way of doubling the current provision without burdening the tax payer. Your Chief Executive has worked hard to build a Council-Society partnership, and that's central to a successful, efficient allotment service. Proposing a rate of £25/pole without any discussion or evaluation of the alternatives is unhelpful, and we'd be duty-bound to challenge that decision. Why not come and talk to us about this one, because together it's not too difficult to double the provision at little cost, and if you want to save a shed-load of tax-payer money that's pretty simple too.

In summary then, the only lawful rent you can set is a November RPI increase of 0.3% for all tenants, so £4.72/pole, with effect from April 2011.

Neither letter got so much as an acknowledgement.

I've asked several questions at committees too, and mostly been fobbed off.

I wrote this to every councillor in May

Dear Councillors

I would like to suggest that now is a good time to think about a mutually acceptable solution. I have made my protest, and there is nothing more to be gained by continuing. My passion is allotmenteering and I have no particular desire to spend the summer outside the Town Hall with my placard.

I respectfully request a meeting with a couple of you as soon as reasonably possible to discuss my legitimate concerns and how we can jointly present the outcome, now that people are watching. I would be very grateful for your response.

And none replied, though I did get a dismissive response from the CEO.

Cheers OtE, I appreciate the encouragement and support.

[Iommi]

Well, if we are to assume what you have posted is accurate (and currently I have no reason to believe it is not), the Council have acted disgracefully. I hope this gets the publicity that it deserves.

Sadly, with the austerity measures yet to take hold, sympathy might start getting harder to obtain.

[Simon Kirby]

Well, if we are to assume what you have posted is accurate (and currently I have no reason to believe it is not), the Council have acted disgracefully. I hope this gets the publicity that it deserves.

In Cllr Swift-hooks words, the Council's position is that

The Unfair Terms in Consumer Contracts Regulations 1999 do not apply to contracts where the consumer can terminate the contract at any time.

The proposed price increases will mean that the average allotment in Newbury will cost the allotment holder £32.62 per year (less than 61p per week) to rent. The Town Council believes that this represents excellent value for money for allotment holders, but if any allotment holder does not wish to continue to rent their allotment for whatever reason, they are free to terminate their contract at any time.

It would be sad to lose a long-standing allotment holder, of course, but on the positive side it would give the opportunity for one of the people on the Council’s waiting list to take an allotment for the first time.

Actually the tenancy agreement obliged tenants to give 12 months notice to quit. The Council later sent a letter round waiving that clause, but again the Regulations don't allow the landlord to make unilateral changes to the agreement. The point is though that when the bill drops through the door in February allotmenteers have already bought in seeds and supplies for the year and makeing provision to move a shed and pond and fruit cage and all the other gubbins you accumulate on an allotment can't be done at the drop of a hat, not without being considerably out of pocket.

In any event, the Council clearly changed their mind because they rolled over for Trading Standards. I did ask whether Cllr Swift-Hook wanted to review his statement, but apparently that was a vexations question and it didn't get a response.

Sadly, with the austerity measures yet to take hold, sympathy might start getting harder to obtain.

I couldn't agree more. Of course the Council would still have to introduce any increase fairly and lawfully, but I agree that the allotment service subsidy is way too much of a burden for the tax payer, and that's why I've been asking the Council to talk to the allotment society about self-management.

This is my letter that the NWN published in January after the increase was set:

Dear Sir

The Wash Common Allotment Society is dismayed at the Town Council's 47% allotment rent increase. We've seen a 90% real-terms increase in rents since 2003 and having found out how the money is being spent we're utterly appalled at the Council's inefficiency.

Rental income hardly covers 20% of the service cost so with the burden of a £50k subsidy being shouldered by the tax-payer we completely sympathize with the need for change, but £41k of the service cost is administration. It's an outrageous amount, equivalent to £73 per plot, for work that an allotment society could do for a couple of quid. Comparable councils like Wantage Town Council manage to run their allotment service without a subsidy, and their plots cost half that of Newbury, so our Council is getting something seriously wrong.

The maintenance bill alone is almost half as much again as the rental income. The Society has several times asked the Council to involve the tenants in the site maintenance, and yet they refuse. Our membership survey reveals that 90% of our members want to help out, but the Council even changed the Rules to prevent this. We find this perverse in the extreme.

Working with the tenants is key. We enjoy the challenge and responsibility, the tax bill is kept under control, and the Council can then afford to open up new sites to accommodate the hundred-odd residents who are currently sitting on the waiting list.

We urge the Council to suspend the rent increase and embrace the Society, for the benefit of the allotmenteers and the Newbury tax payer.

The Town Council passed a resolution at the March 1st Community Services Committee "That the Council does not give recognition to the Wash Common Allotment Society in its current form and with its current aims."

Cllr Sheldon's main objections were that I had "slagged off" the Council in the NWN, and that the Society has aspirations to self-manage.

I could have been more critical still but the Council aren't completely up-front with their costs. You have to reconstruct the costs from the Council's published Income and Expenditure account and the precept breakdown, but my best estimate now is that fully-devolved self-management could save £97k, most of that by saving £55k on administration and £38k from a proportionate reining of the overheads like the town hall, civic responsibility, and grants.

[Iommi]

Cllr Sheldon's main objections were that I had "slagged off" the Council in the NWN, and that the Society has aspirations to self-manage.

In the words of Lance-Corporal Jones: they don't like it up 'em.

It sounds like a case or sour grapes and appears utterly pathetic of them. At the end of the day, it looks like it was their own ineptitude and arrogance that has brought this reaction from you and the other allotmenteers on anyway.

Perhaps there is mileage in getting rid of the lot of them. What's Wash Common really got to do with Newbury Town anyway.

[On the edge]

In other words they are letting personal power trips get in the way of right and proper administration. This is supposed to the a Council run for the good of the people. No matter how good the case is for increasing the rents, they've lost any support I'd give for that down to this appauling process. All communications from the electorate deserve a response. Regrettably, its the usual bully tactics, so loved by minor and un important bureaucrats - if we ignore you long enough you'll go away. Answer is keep fighting.

[Iommi]

Exactly. Perhaps allotments are too cheap, but that shouldn't mean rights are stamped over by ignorant councillors.

[DrPepper]

It's the same old story of a bunch on wanabee councillors, who are wholly unqualified in what they do making mistakes. Their defence will be the old trotted out "we do this unpaid and in our own time" as if this is a defence for their shortcomings.

If if you do something for free, you should still do it in a correct and proper fashion. You do have to ask why most councillors do the job, very many will have their own agenda - although claim it's purely for the good of the town.