compensation under sect. 5 of the Allotments and Cottage Gardens Compensation Act, 1887, which is repealed by this Act. It will be noticed that the right to compensation cannot be excluded by agreement. For any matter falling within (a) the tenant will be entitled to compensation without the consent of the landlord, but for the improvements mentioned in (b) he must show a previous written consent of the landlord. It is to be noticed that the right to compensation arises on the termination of the tenancy whatever may be the cause of such termination.

(3) Sect. 6 of this Act provides for the assessment and recovery of compensation in the case of allotment gardens. Under sect. 30, sub-sect. 3, of the Act of 1908, upon the recovery of an allotment from any tenant the court directing recovery may stay delivery of possession until payment of compensation due to the tenant has been made or secured. See ante, p. 35.

(4) The Agricultural Holdings Acts, 1908 to 1921, are repealed by the Agricultural Holdings Act, 1923, which is a consolidating Act, re-enacting the provisions of the previous Acts. Reference in this Act to provisions of the repealed Act will therefore be construed as references to such provisions as re-enacted. See Interpretation Act, 1889, s. 38 (1). The Act of 1923 applies by sect. 57 (1) to any parcel of land held by a tenant, which is either wholly agricultural or wholly pastoral, or in part agricultural, and as to the residue pastoral, or in whole or in part cultivated as a market garden." When an allotment comes under this definition compensation may be claimed either under this section or under the Act, but the procedure for determination and recovery of compensation will be that provided by this Act.

(5) For ascertaining what compensation could be claimed if this Act had not been passed reference must be made to the Allotments and Cottage Gardens Compensation Act, 1887.

(6) This definition of an allotment is the same as that in the Allotments and Cottage Gardens Compensation Act, 1887, except that the words "whether attached to a cottage or not are added. In Cooper v. Pearse (65 L. J. M. C. 95; [1896] 1 Q. B. 562), it was held that a piece of land less than two acres in extent occupied by a seedsman for the purpose of his business and having on it vegetables, fruit trees, and flowering plants which he sold was not "cultivated as a garden," and was therefore not an allotment within the Act of 1887. To come within the Act as a garden the holding must be "a place where fruit and vegetables are grown for food, or a place laid out for pleasure" (Collins, J.). Under sect. 27, sub-sect. 3, of the Act of 1908, a council may let

66

an allotment not exceeding five acres, and with the permission of the county council, land which exceeds five acres may be let as an allotment, and sect. 47, sub-sect. 3, of that Act, appears in such a case to entitle the tenant to claim compensation under this section. In the Act of 1925, s. 1, allotment is given an extended meaning to include any parcel of land not more than five acres in extent, cultivated or intended to be cultivated as a garden or farm, or partly as a garden and partly as a farm. See post, p. 179.

§§ 3, 4.

provision

allotment

4.-(1.) A tenant of land held under a contract of Further tenancy to which any of the foregoing provisions of this as to Act apply may, before the termination of the tenancy, gardens and remove any fruit trees or bushes provided and planted by allotments. the tenant and any erection, fencing or other improvement erected or made by and at the expense of the tenant, making good any injury caused by such removal.1

(2.) A tenant of land held under a contract of tenancy to which any of the foregoing provisions of this Act apply and which is made with a mortgagor but is not binding on the mortgagee, shall, on being deprived of possession. by the mortgagee, be entitled to recover compensation from him as if he were the landlord and had then terminated the tenancy, but subject to the deduction from such compensation of any rent or other sum due from the tenant in respect of the land.2

(1) It is to be observed that this right of removal is given to a tenant of an allotment garden or allotment without the necessity of giving any notice to the landlord and without any option of purchase by him as provided in respect of the removal of fixtures under sect. 22 of the Agricultural Holdings Act, 1923.

(2) This sub-section gives the right to claim compensation against a mortgagee who takes possession and deprives the tenant. of possession which was previously given by the Tenants' Compensation Act, 1890, now repealed by this Act. The tenant is entitled to recover the compensation from the mortgagee and not merely to a charge in respect of it on the holding as under sect. 15 of the Agricultural Holdings Act, 1923, in the case of an ordinary agricultural tenancy.

§§ 5-7. Rights of tenant who has paid compensation to out

going tenant.

Assessment

and recovery of compensation.

Application

to Crown lands.

5. Where a tenant of an allotment has paid compensation to an outgoing tenant for any fruit trees or bushes. or other improvement, he shall have the same rights as to compensation or removal as he would have had under this Act if the fruit trees or bushes had been provided and planted or the improvement had been made by him and at his expense.

6.-(1.) The compensation under the foregoing provisions of this Act, and such further compensation (if any) as is recoverable under the contract of tenancy shall, in default of agreement, be determined by a valuation 1 made by a person appointed in default of agreement by the judge of the county court having jurisdiction in the place where the land is situated, on an application in writing. being made for the purpose by the landlord or tenant, and, if not paid within fourteen days after the amount is agreed or determined, shall be recoverable upon order made by the county court as money ordered to be paid by a county court under its ordinary jurisdiction, is recoverable.

(2.) The proper charges of the valuer for the valuation shall be borne by the landlord and tenant in such proportion as the valuer shall direct, but be recoverable by the valuer from either of the parties and any amount paid by either of the parties in excess of the amount (if any) directed by the valuer to be borne by him shall be recoverable from the other party and may be deducted from any compensation payable to such party.

(1) As the compensation is to be determined by valuation and not by arbitration, the valuer will not be under any obligation to take evidence, but may rely on his own judgment. As to the difference between arbitration and valuation, see note to sect. 58 of the Act of 1908, ante, p. 85.

7. The foregoing provisions of this Act shall not apply to any land of which possession was taken by or on behalf

of any Government department under the enactments relating to the Defence of the Realm or the regulations made thereunder and possession of which has been continued by virtue of any enactment, or to any land forming part of a royal park; but, save as aforesaid, the foregoing provisions of this Act shall apply to land vested in His Majesty in right of the Crown or the Duchy of Lancaster, and to land forming part of the possessions of the Duchy of Cornwall, and, except as otherwise herein before expressly provided, to land vested in any Government department for public purposes.

§§ 7, 8.

of statutory

for allot

ments.

8 Edw. 7,

c. 36.

8.-(1.) The period during which an order for the Amendment compulsory acquisition of land for allotments is, under provisions as section one of the Land Settlement (Facilities) Act, 1919, to compulsory acquisiexempted from the requirement of submission to and con- tion of land firmation by the Minister is hereby extended to the thirtyfirst day if December, nineteen hundred and twenty-two.1 9 & 10 Geo. 5, (2.) The restrictions imposed by section forty-one of c. 59. the Small Holdings and Allotments Act, 1908, on the compulsory acquisition of land which has been acquired by any corporation or company for the purposes of a railway, dock, canal, water, or other public undertaking shall not apply to the hiring of land by a council of a borough or urban district or by the council of a county to whom the powers and duties of a borough or urban district council have been transferred under the provisions of subsection (2) of section twenty-four of the Small Holdings and Allotments Act, 1908, for the purpose of providing allotment gardens:

Provided that every such hiring shall be subject to a condition enabling

(a) the corporation or company to resume possession of the land when required by the corporation or company for the purpose (not being the use of land for agriculture) for which it was acquired by the corporation or company; and

(b) nothing in this sub-section shall prejudice the protection given by the said section forty-one to

land which is the property of a local authority.2 (3.) Notwithstanding anything contained in any other enactment, counsel shall not be heard in any arbitration under this Act or as to compensation payable for land acquired for allotments under the Allotments Acts unless the Minister otherwise directs.3

(4.) No land shall be authorised by an order under the Allotments Acts to be hired compulsorily for the purposes of allotments which at the date of the order is pasture land if it is proved to the satisfaction of the Minister that arable land which is equally suitable for the purpose of allotments to the pasture land proposed to be compulsorily hired is reasonably available for hiring by the council.4 (5.) Paragraph 2 (b) of Part II. of Schedule I. to the Small Holdings and Allotments Act, 1908 (which restricts the breaking up of pasture compulsorily hired) shall not apply to land compulsorily hired for the provision. of allotment gardens.5

(1) This sub-section is now spent, as the time mentioned has passed.

(2) As to the restrictions which are hereby relaxed in favour of hiring for allotment gardens by borough and urban district councils, see sect. 41 of the Act of 1908, ante, p. 57.

(3) The employment of counsel on the compulsory acquisition of land is forbidden by rule 5 of Schedule I. to the Act of 1908, but it is conceived that this provision was overridden by the provisions of the Act of 1919. There is now this express provision as regards land acquired for allotments, leaving the position as regards small holdings the same as before.

(4) This sub-section is apparently inserted in consequence of the decision in Knowles v. Salford Corporation (91 L. J. Ch. 106; [1922] 1 Ch. 328), ante, p. 97. Pasture land must not be compulsorily hired for allotments if it is proved to the satisfaction of the Minister that equally suitable arable land is reasonably available.

(5) This sub-section abrogates the provision of para. 2 (b) of Part II. of Schedule I. of the Act of 1908 in respect of break