Summary: Mr B says the Council harassed and unreasonably threatened to terminate his allotment tenancy when he has not breached the conditions. There is no fault in how the Council handled Mr B’s case.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council:
• harassed him and unreasonably threatened to terminate his allotment tenancy when he has not breached the conditions; and
• unreasonably refused to consider offering him an alternative vacant plot out of the sight of residential properties.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mr B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
3. If we are satisfied with a Council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided;
• considered Mr B’s comments on my draft decision; and
• gave the Council an opportunity to comment on my draft decision.

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What I found

Chronology of the main events

5. Mr B has rented an allotment from the Council since May 2016. The Council visited Mr B’s plot on 2 May 2018. Following that visit the Council wrote to Mr B to raise concerns about the state of the allotment. The Council told Mr B it did not consider he had complied with the terms of conditions of the allotment. The Council referred to conditions relating to keeping the allotment clean, in a good state of cultivation, in good condition and to the condition relating to storing debris, arisings and rubbish on the plot. Mr B contacted the Council on 11 May to say he had undertaken some work. The Council agreed to look at the plot again in one month.
6. The Council visited Mr B’s plot on 22 June. On that visit the Council identified Mr B had stored more wood on the site, had carried out planting in cardboard boxes and identified a large structure which needed to be removed. The Council wrote to Mr B about those issues on 22 June. The Council gave Mr B 14 days notice of termination of his tenancy and asked Mr B to remedy the issues.
7. On 28 June Mr B told the Council he had improved the state of the plot. Mr B explained the wood on the plot was for the chicken run and to build a fence. The Council asked Mr B to remove some of the wood on site and only bring it onto site as and when it was needed. Mr B said he would not take further action on the site until he had spoken to a manager.
8. On 23 August the Council carried out an inspection of the plot and identified no progress. The Council sent a further letter to Mr B about the state of the plot. Mr B contacted the Council on 1 September to say he had improved the plot and other plots were in a similar or worse state. Mr B asked for details about how he had breached the conditions of his tenancy. In response the Council reminded Mr B it had visited the plot and identified no significant improvement. The Council also told Mr B it had sent similar letters to other plot holders. The Council told Mr B it had received complaints from residents overlooking his plot.
9. On 2 September Mr B asked to move his plot away from the view of neighbouring properties to avoid constant harassment. In response the Council asked Mr B to improve the condition of his plot and told him it would not move him to another plot.
10. A Council officer visited Mr B’s allotment on 26 September. Following that the Council sent Mr B a final warning letter as it had not seen any improvements to the plot. The Council told Mr B he had 14 days to comply or the Council would terminate his tenancy from 11 October. The Council reissued that warning letter on 17 October as Mr B had not received the original letter while he was out of the country.
11. On 7 November the Council sent Mr B a notice of termination due to no improvements on the site.
12. Mr B complained to the Council about harassment on 7 November. The Council responded on 28 November to advise Mr B it had photographic evidence showing breaches of his allotment tenancy relating to keeping the allotment clean and in a good state and in prohibiting use of the allotment for storing waste and materials. The Council told Mr B it had given him sufficient time to rectify the issues. The Council said it was satisfied it had applied its processes consistently, noting Mr B’s reference to another plot holder being evicted.
13. The Council sent Mr B a legal notice to quit on 31 December.

Analysis

14. Mr B says the Council is harassing him and has unreasonably terminated his allotment tenancy when he has not breached the conditions. The evidence I have seen satisfies me the Council communicated with Mr B about the state of his allotment on several occasions in 2018 before terminating Mr B’s tenancy. I am satisfied before each of those letters the Council visited Mr B’s allotment and identified issues with the state of the allotment which satisfied the Council he had breached the conditions relating to the state of the allotment and storage of materials. As I am satisfied the Council properly considered the matter and gave Mr B an opportunity to rectify the situation I have no grounds on which to criticise it. Clearly Mr B takes a different view about the state of the allotment than the Council. However, as I said in paragraph 2, it is not the role of the Ombudsman to comment on the merits of a decision that has been reached without fault. I have found no evidence of fault in how the Council dealt with conditions on Mr B’s plot.
15. In reaching that view I am aware Mr B says the Council asked him to remove the chicken coop when the Council had given permission for it in 2016. Mr B also says he is cultivating more than two thirds of the plot which means he has not breached the condition. Finally, Mr B says the eco-friendly method of preventing weeds has not been recognised by the Council. I have considered each of those points. I am satisfied the Council took action against Mr B which led to the termination of his tenancy due to breaches of the following conditions in his tenancy agreement:
• To keep the allotment garden clean, in a good state of cultivation (at least 2/3 to be cultivated at any given time) in good condition and free of vermin.
• Shall not tip debris, arisings or rubbish on any allotment garden.
• Shall not use the allotment garden for the furtherance of any trade, business or profession or use it for the storing of any materials or waste.
16. In relation to the first condition Mr B says he has not breached the condition because he is cultivating more than two thirds of the plot. However, the condition also requires the plot to be kept clean and in good condition. There is no evidence in any of the Council’s communications with Mr B it took enforcement action on the basis he had not cultivated two thirds of the plot. Rather, the evidence I have seen satisfies me the Council had concerns about breaches of the other parts of that condition relating to the condition of the plot. So, whether Mr B was cultivating more than two thirds of the plot is not relevant here.
17. It is clear the Council agreed Mr B’s plan to build a 3 metre high enclosure for his chickens given this was confirmed by email on 13 June 2016. However, I do not consider that point relevant in relation to the Council’s decision to terminate Mr B’s tenancy. That is because there is nothing in any of the Council’s communications with Mr B to suggest the height of the chicken coop was a determining factor in terminating Mr B’s tenancy. Rather, I am satisfied it was the state of the site the Council was concerned about.
18. I am also aware Mr B uses an eco-friendly method of preventing weeds which involves laying cardboard on the site. I appreciate this is likely to have added to the concerns about the visual state of the site given it is overlooked by properties. However, it is also clear to me the Council had other concerns about material stored on the site and not just the eco-friendly method of weed control Mr B refers to. Clearly the Council takes a different view about the state of the site than Mr B does. However, it is not my role to comment on the merits of that decision given the Council has reached it after visiting the site on several occasions.
19. Mr B says he asked the Council to move him to another part of the site which is not overlooked by residential properties and the Council unreasonably refused. I do not consider that refusal constitutes fault though given irrespective of where the plot is on the site Mr B still has to comply with the same conditions. As the Council had concerns about how Mr B was managing the plot he had I cannot criticise it for refusing to move him to another plot while those concerns were ongoing.

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Final decision

20. I have completed my investigation and do not uphold the complaint.

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Investigator's decision on behalf of the Ombudsman