Summary: Mr X complained about how the Council took action against him over a structure on his allotment. There was fault in how the Council communicated with Mr X about breaches of its allotment terms and conditions. This caused Mr X avoidable confusion for which the Council agreed to apologise. It also agreed to review how it manages breaches of terms and conditions in future.

The complaint

1. Mr X complains about the action the Council took against him over a structure on his allotment in 2022. He says the Council:
• misinformed him about what structures were acceptable;
• wrongly issued him with notices and tried to end his allotment tenancy; and
• treated him unfairly compared with other allotment holders.
2. As a result, he says he spent over £5000 on a structure the Council wants him to remove, has experienced significant distress and upset, and cannot enjoy his allotment as he hoped.
3. He wants the Council to allow him to keep the structure and leave him to enjoy his allotment.

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The Ombudsman’s role and powers

4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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

8. I considered:
• the information Mr X provided and discussed the complaint with him;
• the Council’s comments on the complaint and the supporting information it provided; and
• the Council’s allotment terms and conditions.
9. Mr X and the Council had an opportunity to comment on my draft decision. I consider any comments I received before making a final decision.

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What I found

Council’s allotment terms and conditions

10. The Council’s terms and conditions for allotments set out what structures are allowed on council allotments:
• Tenants are not allowed to erect any structures without the Council’s permission.
• The Council does not allow “dwelling houses, chalets, summer houses, verandas and canopies, or kitchen facilities”.
• The Council does allow tool sheds and greenhouses/polytunnels no larger than specified dimensions.
• The Council can require tenants to remove unauthorised structures by giving them notice. If a tenant does not remove the structure, the Council can remove it and charge the tenant for the costs of doing so, or end their tenancy agreement.
11. The terms and conditions also require tenants to keep the plot free from weeds and always cultivate at least 75% of the plot. If a tenant is unable to do so, they should contact the Council in writing. Failure to maintain the plot can result in the Council ending the tenancy.

What happened

12. Mr X has rented an allotment plot from the Council since early 2022. At the time Mr X applied for the plot, a representative from the allotment site sent him an application form and a copy of the terms and conditions, on behalf of the Council.
13. Shortly after Mr X started work on his plot the existing shed was removed by, Mr X believes, the former tenant. Mr X wanted somewhere to store his tools and materials, so he purchased a second-hand structure from a private seller. He also said he paid:
• three carpenters for a day’s work dismantling the structure;
• the costs of transporting the dismantled structure to the allotment site; and
• materials to prepare the ground ready to place the structure on his plot.
14. While preparing the ground in June 2022, Mr X said the site representative told him he could not put the structure he intended on his plot.
15. The Council emailed Mr X to tell him that, from pictures provided by the site representative, the size of the structure Mr X intended to build was much larger than that allowed under the Council’s rules and that, in any case, he would need permission for a shed if he wanted one. The Council asked Mr X to remove the groundwork he had prepared or it would terminate his tenancy.
16. Mr X sent the Council the measurements of the structure he intended to build and argued that only part of the structure was a shed with the remaining portion being an ‘awning’. He asked the Council for permission to place his structure on his plot.
17. Over the next few days, the Council and Mr X exchanged emails about the structure. Mr X tried to persuade the Council to allow him to build the structure he had purchased and that the shed and ‘awning’ should be considered separately. The Council maintained its position that Mr X was only allowed to build a shed which was within the given dimensions in its terms and conditions.
18. In its final email at that time the Council said “As long as the shed isn’t larger than what is allowed and the material are the correct ones shown in the terms and conditions this is all fine.” Mr X took this to mean that the Council had given him permission to build the structure as he intended, which he proceeded to do. Mr X said he incurred further costs erecting the shed.
19. Following an inspection visit to the site, the Council sent two warning letters to Mr X in September 2022. The first letter said Mr X was in breach of his tenancy agreement because he had built a structure larger than that allowed under the terms and conditions. The second letter warned Mr X the Council believed he had not been cultivating the site as required. The Council gave Mr X 28 days to remedy both breaches or it would consider ending his tenancy.
20. Mr X replied to the Council disputing both breaches. He said he believed he had been given permission by the Council to build the structure and had reasons for not cultivating the plot. He asked the Council to confirm it would take no further action against him.
21. The Council responded the following day and told Mr X it “had taken [him] off notice and [he] would not receive any further warning letters”.
22. Despite this, the Council sent Mr X further warning letters in mid-October 2022. These letters were practically identical to the September warning letters, covered the same points and gave Mr X the same notice.
23. Again, Mr X replied to the Council disputing the breaches. He also said he believed the Council was treating him differently to other tenants and he had seen structures of a similar size on other plots. In its response, the Council confirmed that the shed part of Mr X’s structure was acceptable but it was the ‘awning’ that was not allowed and that he needed to remove.
24. Mr X complained to the Council about the warning letters in November 2022. He told the Council he believed he had been harassed and treated unfairly. He wanted the Council to withdraw the warnings, allow him to keep his shed and ‘awning’ and apologise.
25. The Council did not change its position in response to Mr X’s complaint. However, it met with Mr X at his allotment plot in February 2023 to try to resolve matters. At that meeting the Council:
• agreed to give Mr X more time to cultivate his plot;
• told Mr X it still required him to remove the ‘awning’ from his shed; and
• gave Mr X a copy of the tenancy agreement, which he had not been given previously.
26. Mr X wrote to the Council in March 2023, further disputing the need to remove the ‘awning’ and repeating his concerns that he was being treated differently to other tenants. The Council responded to Mr X’s various points but clarifying that it had not changed its view about Mr X’s structure. It also sent Mr X a letter from its legal team which repeated the Council’s views about the structure and that Mr X needed to remove the ‘awning’ by late April 2023 or the Council would end his tenancy. The letter also said that Mr X had “2 days” to reduce the size of the structure.
27. Mr X asked the Council to escalate his complaint to stage 2 of its complaints procedure. The Council sent its final response in mid-June 2023 in which it said the communication between the Council and Mr X had sometimes lacked detail but that it still required Mr X to reduce the size of his shed.

My findings

28. It is not our role to decide if the structure Mr X has built on his plot is allowed; that is the Council’s responsibility. Our role is to assess whether the Council made its decision properly. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence.
29. The evidence shows that Mr X was given a copy of the terms and conditions for holding and using an allotment before he started his tenancy in April 2022. Those terms and conditions set out what structures were allowed or not allowed on allotment sites and that tenants must seek permission.
30. Therefore, I am satisfied Mr X knew, or should have known, about these limitations and requirements at the time he purchased his structure and paid for the associated materials and labour.
31. Mr X did not ask the Council for permission to place a shed on his allotment before he purchased the structure or the associated materials, or before starting the ground works. Therefore, I do not consider the Council is responsible for Mr X incurring any of the costs before June 2022.
32. When the Council first became aware of the size of the structure, it notified Mr X promptly that he needed permission, could only build a shed or polytunnel and that the size of the proposed structure was larger than the rules allowed.
33. Mr X took the final email at the time as permission to build the whole structure. However, in the context of the other emails the Council sent at that time, my view is that email did say Mr X had the blanket permission he believed it did. The Council had clearly referred Mr X to the rules and made it clear in that email that, provided Mr X’s structure was within the rules, it would be acceptable.
34. I do not consider the Council misinformed Mr X about what structures were acceptable. The terms and conditions the Council referred Mr X to clearly state that structures other than sheds (including verandas, summer houses or canopies) are not allowed. Although Mr X refers to part of the structure as an ‘awning’, I am satisfied the Council’s decision that this part of the structure is not allowed is consistent with the terms and conditions.
35. Therefore, my view is the Council is not responsible for any of the costs Mr X incurred in purchasing or building the structure and requiring him to reduce the structure to a shed within the allowed sizes is also within the terms and conditions.
36. The first notices the Council issued was also in line with the terms and conditions, therefore I am satisfied there was no fault with issuing those notices. The Council is entitled to enforce its terms and conditions, including by issuing warning letters or notices.
37. The Council then withdrew the notices and told Mr X it would not issue further notices. It did not, however, deal with Mr X’s substantive response to the notices or clarify with him that it had not changed its views. This was a missed opportunity to resolve the issues with the structure. Instead, the Council send Mr X further identical notices around six weeks later. I am satisfied the Council’s communications about the notices at this point were confusing and contradictory. That was fault which caused Mr X avoidable confusion and frustration.
38. There was further confusion when the Council sent Mr X the letter from its legal department in March 2023. This letter contained a typing error giving Mr X “2 days” to remove the structure. However, it gave a date for compliance some four weeks later. In the context of the other communication between Mr X and the Council, I am satisfied this caused Mr X further confusion and frustration.
39. In its final response to his complaint, the Council accepted that some of its communications were not clear as they could have been. However, the Council did not apologise to Mr X for the impact this lack of clarity had on him.
40. However, the Council was still entitled to require Mr X to comply with its terms and conditions. I am satisfied there was no fault in how the Council has applied its terms and conditions to Mr X’s structure, or in its decision that Mr X must remove the ‘awning’.
41. I am satisfied with the Council’s explanations that:
• it has issued warnings and ended tenancies for other, similarly sized structures on nearby allotment plots; and
• in some cases, the Council has decided not to take further action because of the length of time some structures have been present.
42. The Council is entitled to consider each case on its individual merits. I have seen no evidence the Council has applied its terms and conditions differently to Mr X compared to other similar allotment tenants, particularly those who are building new structures. Therefore, I do not consider the Council has treated Mr X unfairly compared with other allotment holders or ‘singled him out’.

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Agreed action

43. Within one month of my final decision, the Council will apologise to Mr X for the confusing communication it sent him, particularly around the warning letters in late 2022.
44. Within three months of my final decision, the Council will review its process for managing breaches of allotment terms and conditions. It should ensure it:
• has a clear process for issuing and following up on warnings; and
• makes decisions consistently and at the right times.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed my investigation. There was fault in how the Council communicated with Mr X about breaches of its allotment terms and conditions. This caused Mr X avoidable confusion for which the Council agreed to apologise. It also agreed to review how it manages breaches of terms and conditions in future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman