Durham County Council (19 015 376)

Category : Other Categories > Leisure and culture

Decision : Upheld

Decision date : 06 Aug 2020

The Ombudsman's final decision:

Summary: Mrs X complained about how the Council ended the allotment tenancy she held on behalf of a charity. The Council was not at fault for how it ended the tenancy. It was at fault for failing to send Mrs X an updated tenancy but that did not cause an injustice.

The complaint

  1. Mrs X is a trustee of a children’s charity (the Charity). Mrs X complained about how the Council ended the allotment tenancy of the Charity. She said it did not receive the Council’s warning letters or the notice to quit. She said the Council did not let the Charity remove its property from the allotment, including a greenhouse it had put there, after the tenancy ended.
  2. Mrs X said the Council’s actions had caused the Charity financial loss. She said it lost seedlings and some garden tools. She said the greenhouse cost the Charity £2,000 which it had bought with a grant. The loss of the allotment also meant the children who went to the Charity’s nursery were no longer able to grow fruit and vegetables.
  3. Mrs X would like the Council to reinstate the allotment or provide compensation for the Charity’s loss of plants and greenhouse.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended). The Council’s allotments in this complaint are managed on behalf of the Council by the Allotment Association (the Association).
  4. 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

  1. I read the complaint provided by Mrs X. I asked the Council questions about the complaint and considered its response. That included photographic evidence of the allotment and video evidence of the notice to quit.
  2. The Charity and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The tenancy agreement

  1. The Charity have been allotment tenants since 2004. The Charity signed a new tenancy agreement with the Council in June 2016. In that agreement, the Charity agreed to “keep the said land in good condition and reasonably free from weeds and well maintained in a good state of cultivation, fertility and tidiness”. It stated the Council could end the tenancy if the Charity breached the tenancy agreement. The agreement said the tenant was responsible for removing all ‘buildings and structures’ from the plot before the tenancy ended.
  2. The Council updated its allotment tenancy agreements in 2018. These now include the additional statement that “personal possessions left on the plot after the termination date will become the property of the Landlord”. The Council did not send the Charity an updated version of its tenancy agreement.

The enforcement procedure

  1. The Council’s allotment policy describes a three-stage enforcement procedure for where there is a breach of the tenancy agreement.
    • Informal Warning – Tenants who fail to comply with their tenancy agreement will be contacted and requested to address issues of non-compliance.
    • Formal Warning – Tenants who fail to respond to an informal warning within 30 days will be issued with a formal written warning.
    • Notice to Quit – Tenants who fail to respond to a formal warning within 30 days will be given notice to quit.
  2. The Charity’s tenancy agreement states the Council can serve any notice -such as enforcement letters- on the tenant by delivering it to their address or by ‘fixing the same in some conspicuous manner on the allotment garden.’

What happened

  1. In August 2018, the Association inspected the Charity’s allotment and found it was not being cultivated according to the tenancy agreement. The Council sent an informal warning to the Charity giving it 28 days to remedy the situation.
  2. The Association inspected the allotment again in September 2018 and found the allotment remained uncultivated. The Council sent a formal warning to the Charity. That said it would complete another inspection in 28 days and if the condition of the allotment had not improved, it would send a notice to quit.
  3. The Association completed a further inspection in December 2018. It found no improvement in the cultivation of the allotment. On 18 December 2018, the Council issued a notice to quit to the Charity. It sent this by recorded delivery to the Charity’s address and displayed the notice at the entry point to the allotment. The Council ended the Charity’s allotment tenancy at the end of January 2019.
  4. Mrs X said a volunteer started work on the allotment in February 2019, visiting it two-three times a week. They visited the site on 4 April 2019 to pay the yearly rent and found the lock on the allotment had been removed and a new lock installed. The Charity contacted the Council that day and were told their tenancy had ended. The Charity explained they had not received the enforcement letters and that they had equipment on the allotment. The Council told the Charity they took possession of any property left on the allotment after the notice to quit had expired.
  5. Mrs X said they visited the allotment on 5 April 2019 to remove seedlings, but these were damaged. They said that tools on the allotment and wood to build raised beds were missing.

Mrs X’s complaint and the Council’s response

  1. The Charity initially tried to resolve the loss of allotment informally. However, that was not successful. In May 2019 Mrs X made a formal complaint to the Council. She said the Charity had not received the enforcement letters. She stated there was nobody at the Charity’s premises when Royal Mail had attempted to deliver the notice to quit on 19 December 2018. She said the Council had put the notice up at the allotment over the Christmas period when no one from the Charity had visited the allotment so it had not had sight of the notice. Therefore, the Council had not served notice properly. She asked the Council to either reinstate the allotment or compensate the Charity for the tools left at the allotment and the greenhouse.
  2. The Council did not uphold Mrs X’s complaint. It said it had sent two warning letters, and that it had followed a “fair reasonable and legally compliant process to end your use of the plot”. The Council said that possessions left on the plot had been passed onto the new tenant and it would not reimburse for the greenhouse as it had no “liability or responsibility to do so”.
  3. Mr X was unhappy with the Council’s response and the Charity escalated their complaint further. The Council completed a stage two investigation. Following checks with Royal Mail, it accepted the Charity had not received the notice to quit sent recorded delivery. However, as the Council had also displayed the notice to quit at the allotment, it said it was appropriately served. It stated that the Council took ownership of possessions left on the allotment after the notice to quit expired. It did not uphold Mrs X’s complaint.

The Council’s response to enquiries

  1. The Council provided evidence it signed an agreement with the new allotment tenant on 3 April 2019 that included use of the greenhouse. Therefore, it said it would not be possible for the Charity to remove it.
  2. It acknowledged the Charity’s tenancy agreement did not include the statement about the landlord taking ownership of any property left on the allotment. But it believed it was clear the Charity had a responsibility to remove the greenhouse in its existing tenancy agreement and that it had provided sufficient time for it to do so.

My findings

  1. The photographic evidence provided demonstrates the Charity was not cultivating the allotment in accordance with the tenancy agreement. Therefore, I find no fault in the Council’s decision to start enforcement proceedings.
  2. The Council followed its enforcement procedure set out in its policy. It sent enforcement letters to the postal address provided to it by the Charity. It was not the fault of the Council that the Charity did not receive the initial enforcement letters. The Council was not at fault.
  3. The Charity did not receive the notice to quit sent by recorded delivery. Royal Mail has confirmed it was not delivered. However, the Council also displayed the notice in a visible place at the allotment. The signed tenancy agreement states that the Council can serve notice in this way. The Council was not at fault.
  4. I appreciate the Council displayed the notice to quit over the Christmas period and nobody from the Charity visited the allotment at that time. However it was not the fault of the Council that the Charity did not go to the allotment when the notice was displayed. The Council was not at fault.
  5. The Council failed to send the Charity the updated tenancy agreement in 2018 explaining the potential transfer in ownership of any property left on site at the end of a tenancy. That was fault. However, that fault has not caused the Charity an injustice. That is because the Charity would not have acted any differently if it had received an updated tenancy agreement, as it did not know the Council was ending its allotment tenancy.
  6. The 2016 tenancy agreement was clear about the Charity’s responsibility for removing any buildings and structures from the allotment. The Charity did not do that. Therefore, the Council was entitled to take ownership of the greenhouse after the notice to quit expired and dispose of it as it saw fit. The Council was not at fault.

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Final decision

  1. The Council was not at fault for how it ended the Charity’s allotment tenancy. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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