Council changing rules without notifying plot holders

[55david]

Hello

Sorry if this is a bit long but I thought it best to give as much info as possible to get the right advice on whether my local council has unfair terms in their allotment rules & regulations

The council are the landowners of the allotment plot I & my partner rent from them

We applied for permission to erect a shed 12ft by 16ft to the town clerk on 16/09/11.  The rules presently state that:

'The tenant shall not without the written consent of the council erect any building on the allotment garden provided such consent shall not be unreasonably refused by the council'

I was unaware of this until pointed out by the treasurer of my allotment society and no-one on the allotments has ever asked for permission for any structures on their plots and the council has never bothered enforcing this rule before

Now it seems there is a restriction on the size of sheds to 10ft by 8ft.  Consequently at a council meeting on 10/10/11 my request was turned down, their reason being:

'Sheds over 10ft by 8ft are inappropriate for an allotment plot', although there are sheds already on some plots over this size

I responded on 21/10/11 to their letter by asking when this policy had been formulated as myself and all the other allotment holders had no knowledge of this policy, stating that the change in policy was unfair and that the council were in breach of their own rules by 'unreasonably' refusing consent for my proposed shed

The council replied on 25/11/11 by stating:

'Eastwood Town Council has now set up a policy to limit the size of buildings on their allotments.  This was agreed by a sub-commitee on 29/3/11 and ratified at Town Council Meeting on 17/10/11  This means this is now council policy and this is being enforced'

Also:

'All allotment holders will be sent out new Allotment Rules & Regulations in the new year'

The letter then goes on to say that 'There is no real reason for a shed bigger than 10ft by 8ft'

Neither myself or indeed any of the other allotment holders have been informed of this change in policy which, according to the council, has been in force since March 2011 and they do not intend to inform us of this until next year, 2012, almost a year after setting up the policy

Surely they cannot do this, there must be some law preventing them from changing their policies without first consulting or giving sufficient notice to the allotment holders of this proposed change, not almost a year later.  

How can we abide by rules we have no knowledge of?

This policy was set up by people with no knowledge of what an allotment even looks like, never mind working on one nor what size shed people need for their tools,  somewhere to shelter, potting area, toilet area etc.

Any advice will be greatly appreciated

Thank you

David & Donna

[55david]

[Unwashed]

Hello 55david, welcome to Allotments4All.

What I understand is:

The shed rule says:  'The tenant shall not without the written consent of the council erect any building on the allotment garden provided such consent shall not be unreasonably refused by the council'

And at the time you signed your tenancy agreement there was no evidence that the Council had a shed policy, and the evidence on the ground was that sheds of 12' x 16' were allowed.

I suggest that the precedent of sheds already on site demonstrates that a shed no larger than the largest on site is automatically reasonable, and that you are not in breach of the shed rule if you build such a shed having been unreasonably denied written consent.

If your tenancy agreement started after 1st October 1999 then the Unfair Terms in Consumer Contracts Regulations 1999 apply.  I suggest that the shed rule is not obviously unfair if it's either explicitly stated or clear from the context which sheds would be reasonable and which unreasonable because although the shed rule creates an imbalance in the rights of the parties to the detriment of the tenant the imbalance is no contrary to the requirement of good faith.  The fairness of the term is assessed at the time you started the tenancy, and at that time there was no explicit shed policy that the tenant was aware of and sheds in excess of 12' x 16' existed on site.

I suggest that the rule isn't unfair within the meaning of the Regulations because from the context you can say unequivocally that sheds at least as big as the biggest on site are allowed.

I would argue that the Council's shed policy is an implied contractural term and as such can't be changed without serving notice to terminate the existing agreements and granting new agreements on new terms.  It takes a minimum of 12 months notice.  Alternatively, if the Council are free to change their shed policy at will, then the shed rule is unfair within the meaning of the Regulations and thus unenforceable.

The rules certainly can't be changed at will as they are contractural terms.  If there's a term in the tenancy agreement that allows the Council to change the rules at will then it's almost certainly UTCCR unfair, and in general the Council will need to serve notice to terminate existing agreements and offer new agreements with revised rules.

Now the difficult part:  If your Town Council is reasonable they'll yield to the strength of your argument, but if they're power-crazed despots they'll victimise you for the audacity of challenging them.  If they don't agree with you then your choice is to assert what you believe to be your contractural right and build the shed anyways and then fight the inevitable eviction in court, and without help that's just not an option.  Don't expect any help and support from councillors or fellow allotmenteers, they'll drop you like plutonium.  You might just possibly get some help from Trading Standards if you can convince them that the shed rule is UTCCR unfair, and if you get victimised trading Standards might also take action against the Council under The Consumer Protection from Unfair Trading Regulations 2008, but most likely they'll be totally useless.

[marcitos]

Must say that I find 'Unwashed's' posts very good reading & very sensible.  From my experience, I'd concur that it's difficult to get anywhere with the LA no matter how well you can pick holes in their regs. etc.. if they feel their authority is threatened. Ego takes over from sense.

[55david]

Many thanks for your advice Unwashed

We have already written to the council regarding the unfair terms they are trying to enforce upon us, also 'custom & practice' whereby there has never been a limit on any building sizes, we've even quoted the Landlord & Tenant Act 1988 stating that a new contract must be drawn up setting out the amended terms & must be signed by all the allotments holders

And STILL they refuse permission saying sheds over 10' by 8' are inappropriate for an allotment plot and there is no real reason for a shed bigger than that and gradually all buildings on the allotment will meet the criteria of the new policy

We and I'm pretty certain that thousands of other allotment holders will strongly disagree with that statement.  Firstly, why would a shed over 10' by 8' be inappropriate for an allotment plot and secondly, there is only one real reason for a shed over that size and that is 'SPACE'

Space to keep tools, fertilisers, plant pots, feed & equipment in, space for shelter & somewhere to sit & have a cuppa and space for a gas bottle & cooker to boil a kettle on.  Space for toilet requirements, especially for women who can't just go anywhere and space for potting/pricking out, etc. etc.

These are just examples, everyone has different needs for their sheds but it all boils down to having sufficient space to enable you to be comfortable with whatever you happen to be doing in your shed

We are by no means finished with this council but want to know for certain where we stand lawfully with regards to this matter

The agreement I signed when I took possession of the allotment stated:

'This tenancy is subject to the Allotment Rules made from time to time by the Council and the Small Holdings & Allotment Acts 1908 to 1950.'


Does this term mean they can change the rules as & when they please?  Or is it unenforceable because as a tenant I have no idea what new rules the council might make?  (Read that bit in one of your earlier postings, very interesting)

We are also seeking advice from the Consumer Rights organisation and the NSALG before we reply to the council

Many thanks once again

[55david]

Please can someone answer this question

Is a councillor allowed to sit, and indeed be 'Chair' on an allotment sub-committee when he/she or a member of their family has an allotment on said site or is this classed as a 'conflict of interest'?

And is this same councillor allowed to vote on policy making decisions regarding the allotments, or any matters relating to them at a town council committee meeting?  Or again, is this a conflict of interest?

Thank you