Allotment holder wins landmark victory over council

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AN ALLOTMENT holder who fought an epic David versus Goliath fight to stop the council evicting him from his plot for only growing fruit trees is celebrating a landmark victory.

Michael Rock fought tooth and nail for almost two years to stop the council evicting him from his cherished plot at Bembrook Gardens off Croft Road. The case cost taxpayers £3,000.

Michael Rock celebrates keeping his allotment with son David at Bembrooke Allotments

Michael Rock celebrates keeping his allotment with son David at Bembrooke Allotments

The 62-year-old who lives in Alpine Road wept tears of joy after a circuit judge agreed with his cause and ruled the council could not evict him.

“This is a victory for the little man,” said Mr Rock outside court. “I just wasn’t prepared to be pushed around by the council. It was definitely a David versus Goliath scenario. What the council did was wrong and they need to realise that.”

Mr Rock was granted an appeal against a ruling made by District Judge Geoffrey Smith in April that he must leave his plot. But his argument throughout was there was nothing in his contract that stated he could not grow fruit trees.

On Monday he went to Hasting County Court armed with a 20 pages of case notes that took him months to prepare. He represented himself in court and told Circuit Judge Robin Bedford why he believed the council had no right to evict him.

Mr Rocks’ long and drawn out ordeal began in February 2011 when he was served a repossession notice by the council.

The council ripped up the rulebook in early 2012 and asked its 600 plot holders to sign a new contract. This stated that written consent had to be obtained from the council to plant any fruit trees regarded as permanent planting unless dwarf root stock which grows to a maximum of seven feet high. All soil beneath the fruit tree must also be planted with productive crops or plants.

In August 2012 Mr Rock lost a bid to secure an injunction to stop council officers coming on to his plot. In April, District Judge Smith ruled Mr Rock was not making sufficient use of his 250 square metre plot. He was given two months to comply with Hastings Borough Council’s demands that he cultivate 75 per cent of his allotment or face losing it.

In July at Hastings County Court, Circuit Judge Robin Bedford granted Mr Rock leave to appeal the decision by District Judge Smith. On Monday Mr Rock started by arguing that the case should never have come to court in the first place.

“The crux of my appeal is that Judge Smith misdirected and mismanaged the case and his last judgement is unsound.

“The argument in this case is what constitutes cultivation. There is no definition in the agreement which was signed on 16 October 2007. In this case you can’t take a contract that allows growing purely fruit trees and interpret it into a contract which insists you must grow veg under those trees. This judgement is seriously flawed because it is made from contradicting material made from outside this contract since this dispute began.”

Mr Hugh Flanagan, barrister acting for HBC, said: “Two council experts both gave evidence that much more could be grown around the tree. Any common sense assessment shows that the plot is not cultivated to 75 per cent.”

After deliberating for just over an hour, Judge Bedford said: “It’s clear in my judgement that the council has put into circulation a contract which is basic and vague. In particular the paragraph which the council rules in terms of the percentage of cultivation. The council’s case is that by 24 months there should be cultivation by 75 per cent. But the paragraph itself does not say that. It states a further 75 per cent - a word which the council chooses to ignore. It was open to the authority to specify if fruit trees are being grown that between the trees there should be grown other plants. I am satisfied that Judge Smith fell into error in seeking to define cultivation beyond the planting of species allowed by the local authority, allowed as a single species and planted in accordance with professional advice. That cannot constitute a breach of contract. Judge Smith went too far in setting a definition of cultivation. In my judgement the allotment was not in breach of contract. Judge Smith fell into error. The appeal is allowed.”

Hastings Borough Council will not appeal against the decision of Judge Robin Bedford. The authority confirmed it had spent £3,000 on legal fees on the case. Head of marketing and communications Kevin Boorman told The Observer: “We are disappointed that we have lost this case. It was not a David versus Goliath type battle. We were just trying to make sure that the allotment was put to the best proper use. There’s a waiting list for allotments. Hastings is a deprived town and many local families want to grow vegetables and we want to ensure plots are put to the best use by local people. We do not think that a few trees on a double plot is the best use.”

Allan Rees, chairman of the National Allotment Society, said: “There have been cases throughout the last 30 years of my involvement in relation to local authorities taking action to remove plotholders, nothing of this scale though.

“Yes it is a landmark, as to define cultivation is not easy, a lawn could be defined as cultivation perhaps. It is very rare to have a plot fully for fruit as under the allotment legislation a plot is for growing fruit and vegatables. It does not say you have to grow all fruit or all vegatables as long as the produce is not sold commercially and is mainly for consumption by the familly. Having said that if this was pointed out initially it may not have progressed for that length of time.

“There are allotment sites that have orchards and communal areas for the use of all plotholders. Fruit growing is becoming more popular in recent years. I grow all vegatables and no fruit. There is no differential in my humble opinion.”