Summary: Mr F complains about the Council’s decision to evict him from an allotment. There was no fault in the way the Council made its decision.

The complaint

1. Mr F complains about the Council’s decision to evict him from an allotment. In particular that it:
1. Was unduly influenced by the allotment committee and did not have proper oversight of the committee, allowing it to build up a climate of friction and anxiety.
2. Incorrectly and unfairly applied the rules to his plot.
3. Had officers without horticulture experience making decisions about his plot.
4. Has rules for cultivation which are out-dated and environmentally damaging.
5. Refused to meet him about the matter.
2. As a result, Mr F says he has lost his enjoyment and investment in his plot and the situation contributed to a debilitating depression.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’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

5. I spoke to Mr F about his complaint and considered the information he sent and the Council’s response to my enquiries.
6. Mr F 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

Allotments

7. Under the Smallholdings and Allotments Act 1908, a council must ensure there are allotments in its area if six or more people in the area ask for them. A council can manage allotments in its area or can instead jointly manage allotments with an allotment association.
8. In this case, the day to day running of the allotments is carried out by an allotment committee but the Council manages the allotments and tenancies. The Council has appointed an allotment manager who is its “authorised officer”.
9. The Council has allotment gardens rules and conditions issued to tenants. These include Condition 2, cultivation and weed control:
• The allotment is let on the condition that it is maintained in a state of proper cultivation and must be maintained in such a manner that 60% of the area is in a state of active cultivation unless by agreement with the Authorised Officer (the Council’s Service Manager (Public & Green Space) or an officer of the Council delegated by them to perform the function). It is the tenant’s responsibility to keep the allotment free of weeds & seeds that may cause a nuisance to adjoining tenants.
10. In relation to cultivation, the rules say:
• Keeping the allotment in good productive order or maintained in a manner acceptable to the Authorised Officer. The maintenance and improvement of soil, the control and prevention of flowering weeds and self-set plants which may be a nuisance to other tenants, the production of ornamental plants, vegetable crops, fruit, flowers and herbs.
11. In response to my enquiries, the Council said the enforcement procedure for breaches of the rules was:
1. The allotment committee inspect the plot and send photographs to the Council.
2. The allotment manager decides if there has been a breach. If so, the Council issues an improvement notice (“final warning”), which gives the tenant 28 days to rectify the problem.
3. The allotment manager inspects the plot and may consult with the Council’s Public and Green Space Service Manager (who is qualified in land and ecological restoration).
4. If no or insufficient action has been taken, the allotment manager (in consultation with the Service Manager as appropriate) decides whether to issue a notice to quit the plot. The notice to quit will require the tenant to deliver vacant possession of the allotment within one calendar month of the date of service of the notice.
12. The rules say that the authorised officer reserves the right to enter onto the allotment without prior notice to inspect it. Interpretation of the rules will be made by the authorised officer and the Council’s decision in any dispute is final.
13. There is no separate appeal process for evictions; tenants need to follow the Council’s corporate complaint procedure if they are unhappy with the Council’s decision.

What happened

14. Mr F had an allotment. The Council had issued Mr F with two final warnings over two years that his plot did not comply with the rule that 60% of it should be cultivated. In 2021 it issued a notice to quit but this was withdrawn following a meeting at the allotment between Mr F and the Council’s allotment manager in November 2021.
15. In April 2022 the allotment committee inspected Mr F’s plot and sent the results to the Council. It said Mr F had not pruned his fruit trees, picked the fruit or got the plot ready for the coming season. The Council issued a final warning about non-cultivation on 14 April 2022. It said it would inspect the plot in 28 days.
16. The allotment manager and the Service Manager inspected the plot on 8 June. In response to my enquiries, the Council said it found that Mr F had “failed to actively cultivate the site for the production of ornamental plants, vegetable crops, fruit, flowers and herbs. In addition, in excess of 50% of the plot had been left unmaintained or was covered in waste items such as a rotting trailer, wood and other items. Fruit trees had not been properly managed and were overgrown, grass had become meadow length, and the plot also had a decomposing fox under the shed that had not been removed. As a result, Mr F had failed to cultivate his plot actively to the standards required and lack of maintenance was subsequently causing nuisance to adjoining tenants.”
17. The Council issued a notice to quit on 9 June 2022, which said Mr F had breached condition 2 of the allotment rules.

Mr F’s complaint

18. Mr F complained to the Council about this decision on 14 June 2022. He said:
• The Council had failed to have a proper oversight of the allotment committee, enabling the committee to act without regard to his efforts to cultivate the plot in an environmentally responsible way and allowing it to create a climate of friction and anxiety.
• The Council had issued a final warning about non-cultivation at a time when no other tenants were cultivating their plots in an apparent “pre-emptive” move, despite having withdrawn its previous notice to quit.
• The authorised officer was not suitably expert in horticulture issues and the Council had allowed the allotment committee’s “old school” philosophies to dominate.
• There was a divergence between new developments in environmental understanding, the Council’s aims for carbon net zero status and the out-dated and environmentally damaging practices championed in the allotment rules.
• The Council had failed to enter to into a dialogue with him.
• There was inconsistent interaction between the Council and allotment tenants.
• The Council had not complied fully with his Freedom of Information Act request.

The Council’s responses

19. The Council’s stage one complaint response of 14 July 2022 said:
• The council’s processes allowed for full oversight of allotment committee inspections. On receipt of an eviction appeal by the tenant, the Council consulted with tenants and the committee but the Council made the final decision.
• Inspections were annual or started when rules were breached.
• All decisions in relation to non-cultivation were reviewed by the Service Manager, who by job specification was an experienced horticulturalist.
• The allotment rules did not prevent sustainable practices from being utilised by allotment holders and were not at odds with the council goals of Net Zero and biodiversity.
• There had been ongoing dialogue, via email, with the allotment manager and there had been a site visit with Mr F in 2021.
• The council’s protocol and procedures were universal across sites and tenants. There had been evictions at other sites, arbitration, and rescinded decisions.
• Mr F could appeal to the Information Commissioner about the response to his freedom of information request.
20. The Council did not uphold Mr F’s complaint and said the notice to quit would stand.
21. Mr F asked for his complaint to be escalated to the final stage. The Council’s final response sent on 24 August 2022 reiterated its first response and concluded the notice to quit stood. The Council said it would take possession of the allotment on 17 September 2022
22. Mr F came to the Ombudsman in June 2023. He said there was an old school allotment committee who had decided his type of cultivation was not acceptable because he had perennials not annuals, did not cut his grass and gently pruned his fruit trees. The committee had had a longstanding dispute with his family and there had been a “war of attrition” against him.
23. In relation to its approach to cultivation, in response to my enquiries the Council said that allotments were biodiversity hotspots for native species within urban green infrastructure and could be managed for food and ornamental cultivation, and biodiversity enhancement, in line with existing allotment regulations. Existing cultivation standards could provide ecosystem services within an urban area and permaculture was not a reason for non-cultivation of an allotment plot. Permaculture practices could therefore be successfully established within a plot that would meet the duties stipulated in the allotment rules.

My findings

24. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. It is not my role to interpret the allotment rules, judge Mr F’s cultivation practices or determine if there has been a breach of the rules. These are decisions for the Council.
25. My role is to look at the process the Council followed to make its decision. If we consider it followed that process correctly, we cannot question whether the decision was right or wrong, regardless of whether the person disagrees with the decision.
26. Following the allotment committee’s inspection in April 2022, the Council considered the photographs of Mr F’s plot. It then decided to issue a final warning. After 28 days the Council inspected Mr F’s’ plot. It considered that no improvements had been made and that Mr F’s plot did not comply with the 60% cultivation rule. It therefore decided to issue a notice to quit. After Mr F complained, the Council considered his points but upheld the decision to evict him.
27. These are decisions the Council is entitled to make and there is no evidence of fault in the way it made them. It has complied with its rules and standard procedures.
28. I appreciate that Mr F feels the Council was unduly influenced by the allotment committee but I have seen no evidence of that. The Council followed its usual process by reviewing the committee’s photographs and comments. Although the Council had previously withdrawn its notice to quit and had given Mr F a number of chances to improve the plot since 2018, there is no evidence that the Council was pressured to make a particular decision or change its view on whether there had been a breach.
29. Nor have I seen evidence of an inconsistent approach to the rules. But even if the Council made a different decision about a different allotment this would not be evidence of maladministration in Mr F’s case.
30. Mr F complained the Council and allotment committee had refused to meet him. But the process does not require there to be meetings or discussions with the tenant, so there is no fault.
31. The Council is entitled to employ whoever it sees fit as its authorised officers so there is no fault in the officer’s qualifications.
32. Mr F and the Council have a difference of opinion about the approach to land management, but this is not evidence of maladministration. The Council is entitled to set its own policies and allotment rules and interpret them. The Ombudsman cannot determine which policy the Council should follow nor replace the professional judgments of officers. On the evidence seen, I do not find fault.

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Final decision

33. There was no fault by the Council. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman