The Capital Growth initiative is helping to create community growing spaces across London and has encouraged some major landowners like Transport for London (TFL) and London Borough Councils to provide space for food growing. http://www.capitalgrowth.org/
However, some landowners raised the issue of these spaces being protected from re-entry or any notice to quit less than a year, by allotment legislation. This meant that in some circumstances the landowners were not willing to permit the use of their land due to uncertainty around regaining possession.
Initially it was hoped that the allotment legislation would not apply to community growing spaces because allotment legislation envisages only a single tenant of an allotment garden not a group. However, legal advice made clear that the legislation could be interpreted to extend to collective tenants and that it’s protection might still apply- even overriding any contrary terms in the agreement. Alternatively, if the community use could be termed a ‘licence’ agreement the allotment protection would also fall away. However, as explained here it is not possible to guarantee that an agreement doesn’t give rise to a tenancy even if it calls itself a ‘licence agreement’. This makes it difficult to draw up a template agreement for community food growing that excludes the potential of protection as an ‘allotment garden’.
In order to re-assure landowners that they will be able to re-gain possession without having to wait for a year and serve notice in a six month window (as per the Allotment Act 1922), it was important first to set out the parameters of where this legislation would and would not apply:
- Only land less than ¼ acre
- Only land mainly used to grow fruit and veg not flowers etc
- Only land where this fruit and veg is not grown for sale
- Then only the 12 month statutory notice if tenant wants to rely on it
And a potential solution was found in the neighbouring provisions of the 1922 Act- allowing exceptions to the twelve month notice requirement if the land is “required for building, mining or any other industrial purpose” (Allotment Act 1922, S. 1 (1)(b)). If the landlord reserves this power in the agreement that will allow them to re-gain possession after just three months written notice if the land is to be developed.
Although this can’t guarantee in all existing cases the agreement won’t be subject to protection as an ‘allotment garden’, it can give confidence to most potential landlords that they will be able to re-gain possession within three- not twelve- months to continue development if they make sure this is part of the agreement.
For more information see the legal summary here.