Michael Rock, 60, argued that by growing 11 pear, plum, apple, cherry and apricot trees he was putting his plot to good use, but council rules brought in this year say that three quarters of the land must be used for “productive crops” such as vegetables.
Mr Rock, an author who lives in a tower block flat in Hastings, East Sussex, said he had originally planted potatoes, leeks and onions, but produced so much it was going to waste.
He decided to turn the land over to fruit trees instead, intending to make jam for his pensioner neighbours.
When presented with the new rules Mr Rock refused to agree to them, and took Hastings borough council to court when it threatened to evict him. He lost his case, but has said he will continue his fight and will go to the European Court of Human Rights if necessary.
At a hearing in Hastings County Court, Mr Rock told a district judge that the contract he signed in October 2007 “contained no detail on the definition of cultivation and what could not be grown on the allotment”.
In April the council changed the regulations to state that “the soil underneath trees must be planted with productive crops or other plants”, saying it was necessary to stop “a minority” of its 600 plot holders “neglecting” their land.
In a hearing on Aug 3, District Judge Geoffrey Smith was told the council felt Mr Rock’s trees were “not occupying sufficient space”.
Jack Anderson, for the council, told the court: “I suggest there is ample space at that plot for the cultivation of flowers and vegetables.”
Mr Rock said: “I have not breached the contract: this council ruling is to remove people who abandon their plots. I love the trees and I feel I am being penalised.”
Judge Smith refused to grant Mr Rock an injunction preventing his eviction, telling him it would be “inappropriate” to do so. Mr Rock was ordered to pay £650 court costs.
Emily Westley, the councillor for leisure and amenities, said: “The judge recognised the council did everything in its power to encourage and support Mr Rock to cultivate his plot.
“Instead of cultivating his plot, he took us to court and lost. We have rules for all allotments and endeavour to uphold those for the enjoyment of all allotment holders.”
A spokesman for the National Allotment Society said: “In our mind the spirit of allotment gardening is that it’s a communal activity which everybody can enjoy; it’s a hobby, at the end of the day.
“We do understand the reasons for tenancy agreements, but would always advise councils not to impose them retrospectively. Allotment gardening is something people do in their spare time and it’s important that rules are imposed in the spirit of fairness.”
