Food security: ‘right to grow’ movement gains momentum but faces legal hurdles

Sophie CameronFriday 9 February 2024

The climate emergency and the cost-of-living crisis – coupled with the lack of resiliency in food supply chains highlighted during the Covid-19 pandemic – has led to a movement involving individuals wishing to grow their own food.

Oluseyi Adisa, Secretary of the IBA Agriculture and Food Section and co-founder of Tunde & Adisa Legal Practitioners in Lagos, highlights how, despite being a significant contributor to greenhouse gas emissions, ‘agriculture faces the consequences of climate change, including drought, erratic precipitation, extreme heat, and heightened pest pressures. These adversities contribute to diminished farm yields, disrupted weather patterns, loss of biodiversity, and exacerbated urbanisation, collectively disrupting the food system,’ he says.

In the UK, community groups are campaigning for a ‘right to grow’, motivated by the desire to eat more sustainably and protect the environment. In October, Hull City Council adopted a motion that formalises this right on unused public land, one of the first cities to provide the community with a way to secure leases for such purposes. The Council’s motion follows a national campaign by a network of over 150 community groups called Incredible Edible, which aims to change the way that public land is used.

Incredible Edible is one organisation calling for a national ‘right to grow’ law, which would place a legal duty on local councils to publish a register of suitable land held by public authorities, including government departments. This would be combined with the opportunity for community groups to apply for leases to cultivate such land in the interest of food self-sufficiency or environmental enhancement.

‘The global food system is broken. It produces food that harms people, the planet and animals, and change is well overdue’, says Pru Elliott, a campaigns consultant at Incredible Edible. ‘Increasing self-sufficiency and community sufficiency around food is a powerful way we can take back control from the industrialised system that does so much harm, and enjoy the health benefits of growing, cooking and eating our own produce.'

Ultimately, a national right to grow food should stem from a national right to food […] It should not have reached the stage that food banks have become a permanent part of the landscape

Professor Geraldine Van Bueren KC
Visiting Fellow, Kellogg College, Oxford

In the US, most legislation relating to the right of citizens to grow their own food exists at the local level. Most disputes in the country have involved citizens’ rights to use their own land – rather than that which belongs to a wider community – for this purpose, with several cases in the past decade challenging local restrictions affecting front yard vegetable gardens.

Ari Bargil, a senior attorney at the Institute for Justice, a non-profit, public interest law firm based in Virginia, has acted on behalf of private property owners including in respect of their right to grow their own food. He highlights a case he litigated, Ricketts v Miami Shores, in which a couple threatened with fines for growing food in their front yard alleged that the city’s ordinance – restricting vegetable gardens to rear yards only – was unconstitutional. The courts found that the ban was rationally related to a legitimate government interest. While Florida’s Supreme Court declined to hear the case, the ordinance was rendered ‘void and unenforceable’ when the state enacted a law on vegetable gardens a year after the case concluded.

Most US courts have decided that local governments have wide latitude in regulating the aesthetics of their locales, which means that as long as gardening regulations supposedly relate to these aesthetics, they’re typically considered acceptable. ‘In court, we argue that Americans have a constitutional right to grow their own food on their own property and that government, if it wants to infringe on that right, should have a good reason, beyond vaguely described aesthetics concerns,’ he explains.

Outside the US, individuals face a wide range of barriers to pursuing a more self-sufficient lifestyle, with one being that they may lack an outside space. Incredible Edible’s push for local authorities to act on enabling food to be grown on unused public land is focused on bringing people together as a community to overcome these obstacles. The organisation has set out a ‘Community Right to Grow Bill’, aiming to make it straightforward for community groups to secure leases to cultivate unused land and to bid for land should their local authority decide to sell it.

Hannah Quarterman, a partner and planning specialist at Hogan Lovells International in London, says there’s potentially a multitude of issues to navigate relating to such a law, which will vary depending on the nature of the pre-existing land use. ‘It’s clear that, legally speaking, there is a real risk of a conflict with the purposes for which land is held, in statutory terms, if that land is then identified to be cultivated by a defined group of people’, she says.

Incredible Edible believe that local authorities are key to the community food growing model and that they can act now to adopt the principles of ‘right to grow’ as a means to overcome the legal and practical obstacles in the way. They encourage authorities to produce a map of all council-owned land suitable for community cultivation, to make this land available through a simple licence to local organisations at no cost and to consider allowing food growing on sites awaiting development for other uses on a fixed-term basis.

‘Many Incredible Edible groups start their gardens as propaganda gardens, without the permission of local authorities, with mixed results,’ says Elliott. ‘Others who do seek permissions are often hampered or stopped completely by red tape, complex leases and expensive insurance. Citizens shouldn’t have to break the law to grow food on land that’s already publicly owned and mostly a wasted, unused asset.’

A Department for Environment, Food and Rural Affairs spokesperson said that the UK’s forthcoming Land Use Framework ‘will set out how we can use land more effectively to meet our environmental targets and the wider Net Zero and food security objectives. The framework will help to inform how we manage any trade-offs and maximise the co-benefits of land, thereby supporting the delivery of resilient, multi-functional landscapes. We are seeking to deliver as much as we can on our limited supply of land, to meet our ambitious targets and commitments to improve the environment, deliver Net Zero and support food security.’ The Land Use Framework is set to be published in 2024.

Professor Geraldine Van Bueren KC, a visiting fellow at Kellogg College, Oxford, and a former Commissioner on Britain’s Equality and Human Rights Commission, is supportive of a national ‘right to grow’ law related to unused public land. ‘Ultimately, a national right to grow food should stem from a national right to food,’ she says. ‘There is no right to food as such in the UK. It should not have reached the stage that food banks have become a permanent part of the landscape.’

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