Appendix C

agricultural land tribunals

Part i
legislative background

                  C.1           Agricultural Land Tribunals principally determine matters arising from the application of the Agricultural Holdings Act 1986 (the “1986 Act”). The majority of cases that come before the Tribunals relate to questions of security of tenure and succession to agricultural holdings. The 1986 Act defines ‘agricultural holdings’ in section1(1) as ‘the aggregate of the land (whether agricultural or not) comprised in a contract of tenancy which is a contract for an agricultural tenancy, not being a contract under which the land is let to the tenant during his continuance in any office, appointment or employment held under the landlord.’ Section 2 further defines a contract for an agricultural tenancy. 

                  C.2           Agricultural Land Tribunals were established under section 73 of the Agriculture Act 1947. Under this act, the jurisdiction of the Tribunals was essentially limited to the hearing of appeals from decisions of the Minister to grant, or refuse, consent to notices to quit. The Agricultural Holdings Act 1958 (the “1958 Act”) greatly extended the jurisdiction of the Tribunals, transferring the Minister’s jurisdiction to the Agricultural Land Tribunals and conferring certain of the Minister’s functions regarding the Tribunals to the Lord chancellor. The 1958 Act also amended some of the legislation granting extra jurisdiction to the Tribunals.

Part ii
Substantive Jurisdiction

                  C.3           The jurisdiction exercised by the Agricultural Land Tribunals is primarily referable to the 1986 Act. The 1986 Act grants jurisdiction on an array of issue to be considered in this section. Agricultural Land Tribunals also have jurisdiction over a number of further issues, such jurisdiction being constituted by the Agricultural Holdings (Arbitration on Notices) Order 1987,[1] Hill Farming Act 1946 (the “1946 Act”) and Land Drainage Act 1991 (the “1991 Act”).

Jurisdiction Table

Act	Legislative Provision	Matter	Further Appeal
1986 Act	Section 11	Application by Tenant for the Provision of Fixed Equipment	High Court
1986 Act	Section 11(7)	Application by Landlord for Extension of Period in which to make such Provisions	High Court
1986 Act	Section 25(4) and Paragraph 9 of Part II of Schedule 3	Application by Landlord for a Certificate that the Tenant is not Fulfilling his Responsibilities Regarding Good Husbandry	High Court
1986 Act	Section 27(1)	Consent to Notice to Quit	High Court
1986 Act	Section 27(5)	Variation/Revocation of Conditions of Notice to Quit on Application by Landlord	High Court
1986 Act	Section 27(6)	Declaration Landlord has Failed to Comply with Conditions on Consent on Application on Behalf of Crown	High Court
1986 Act	Section 39	Succession After Death of Tenant	High Court
1986 Act	Section 41	Application by Not Fully Eligible Person to be Treated as Eligible for Succession	High Court
1986 Act	Section 53	Succession on Retirement of Tenant	High Court
1986 Act	Section 67(3)	Approval for Carrying Out of Long Term Improvements by Tenant	High Court
1986 Act	Section 67(6)	Declaration Landlord has Failed to Carry Out Improvements in Reasonable Time	High Court
1986 Act	Section 80(2)	Declaration that Holding is to be Treated as a Market Garden	High Court
1986 Act	Section 80(7)	Application by Landlord to Divide Holdings that are Part Market Garden	High Court
1946 Act	Section 21	Avoiding/Relaxing Covenants Against Heather and Grass Burning	High Court
1987 Order	Section 13	Application for Postponement of the Operation of a Notice to Quit	High Court
1991 Act	Section 28	Order to Carry Out Work on Ditches	High Court
1991 Act	Section 30	Order Authorising Applicant to Enter Specified Land to do Specified Drainage Work related to a Ditch	High Court

 

Application by Tenant for the Provision of Fixed Equipment

               C.4           On an application by the tenant of an agricultural holding, the Tribunal may direct the landlord to provide, alter or repair such fixed equipment as is necessary for the tenant to carry out an agricultural activity specified in the application in accordance with the rules of good husbandry and in compliance with the requirements imposed on him or her by, or under, any enactment. Section 11 provides the Tribunal with further guidance on the circumstances in which such directions may be made.

Application by Landlord for Extension of Period in which to make such Provisions

               C.5           Section 11(7) grants the Tribunal the power to extend the period, specified in a direction under section 11, in which the landlord must complete the work required by the direction. Such extensions may be made if the Tribunal is satisfied that the period granted is insufficient for the completion of both the necessary preliminary arrangements and the actual specified work.

Application by Landlord for a Certificate that the Tenant is not Fulfilling his Responsibilities Regarding Good Husbandry

               C.6           Paragraph 9(1) of Part II of Schedule 3 provides that the landlord may apply to the Tribunal for a certificate that the tenant is not fulfilling his duties to the farm in accordance with the rules of good husbandry. This provision is only applicable to the scenario outlined in Part I of Schedule 3, that is Case C. Part I of Schedule 3 describes the cases where the consent of the Tribunal to the operation of a notice to quit is not required. Case C is a case where a certificate under Paragraph 9 of Part II of Schedule 3 has been granted not more than six months before the giving of the notice to quit, and that fact is stated in the notice. To clarify, if such a certificate is issued, the landlord has six months to serve notice to quit without requiring the consent of the Tribunal. Section 25(4) grants the Tribunal the power to specify in the certificate a minimum period for termination of the tenancy (not less than two months).

Consent to Notice to Quit

               C.7           Section 26 allows a tenant to respond to a notice to quit by the landlord with a counter–notice requiring the application of section 26, which renders the notice to quit without effect unless the Tribunal consents to its operation. The power to consent is granted to the Tribunal by section 27, which provides the Tribunal with the criteria to assess each situation. Under section 27(4), the Tribunal may impose conditions on consent to ensure the land is used for the purpose for which the landlord wishes to terminate the tenancy.[2]

Variation/Revocation of Notice to Quit on Application by Landlord

               C.8           Section 27(5) allows the landlord to apply for a variation or revocation of a condition under section 27(4),[3] on the basis of change of circumstances or otherwise.

Declaration Landlord has Failed to Comply with Conditions on Consent on Application on Behalf of the Crown.

               C.9           If it is proven that the landlord has acted in contravention of a condition, or failed to fulfil it, the Tribunal may impose a penalty of not more than two years rent at the rate rent was payable before termination of the tenancy, or if the notice only applied to part of the holding, the penalty rate is worked out proportionately. In this matter, applications are made to the Tribunal on behalf of the Crown.[4]

Succession after Death of Tenant

               C.10           On the death of a tenant, any eligible person[5] may apply under section 39 to the Tribunal for a direction entitling them to a tenancy of the holding unless excluded by section 36(2), section 37 or section 38.[6] If only one application is made, the Tribunal shall satisfy themselves the applicant is and continues to be an eligible person. If so, the Tribunal must then determine whether the applicant is a suitable person to become the tenant. If more than one application is made, then the Tribunal shall apply this test to each individual as if he or she was the only applicant. However, section 39(4) gives priority in such a situation to a person designated in the will of the deceased as the preferred successor. If only one person is suitable, the Tribunal will direct said person to become tenant. If more than one person is suitable, then the Tribunal must determine which person is the most suitable.[7]

Application by Not Fully eligible Person to be Treated as Eligible for Succession

               C.11           Section 41 applies to any close relative of the deceased who engaged in agricultural work on the holding for some part of the seven years preceding the death, is not the occupier of a commercial unit of land, and satisfies the criteria in section 36(3)(a)[8] not fully, but to a material extent. Such a person may apply to the Tribunal within three months beginning with the date of the death for a determination that he or she is to be treated as an eligible person. The Tribunal will determine if the criteria outlined above are met, and if it is fair and reasonable in all the circumstances for the person to apply for a section 39 direction.

Succession on Retirement of Tenant

               C.12           If the holding is held under a tenancy from year to year then notice may given to the landlord by the tenant or, if a joint tenancy, by all the tenants, that they wish a single eligible person named in the notice to succeed them on their retirement.[9] Within one month, starting the day after the retirement notice was given, the named successor may apply to the Tribunal for a declaration entitling him to a tenancy of the holding under section 53. The Tribunal must determine that the applicant is an eligible person,[10] and a suitable person to become the tenant of the holding.

Approval for Carrying Out of Long term Improvements by Tenant

               C.13           If, in the case of an improvement to the holding specified in part II of Schedule 7,[11] a tenant is aggrieved by the refusal of the landlord to consent, or the tenant refuses to agree with any of the landlord’s terms of consent, the tenant may apply to the Tribunal for approval of the carrying out of the improvement. This power is granted by section 67(3).

Declaration Landlord has failed to Carry Out Improvements in Reasonable Time

               C.14           If the Tribunal grants their approval under section 67(3), the landlord may then, with the approval of the Tribunal, serve notice that he will carry out the improvements himself.[12] Should such notice be served, and the landlord fail to act, the tenant may, under section 67(6)(b), apply to the Tribunal for a determination that the landlord has failed to carry out the improvement within a reasonable time. Should the Tribunal grant such a determination, or the landlord choose not to serve any such notice, then the approval of the Tribunal shall have effect as if it was the consent of the landlord to the improvement.

Declaration that the Holding is to be Treated as a Market Garden

               C.15           Schedule 10 provides a list of the improvements that may be made to a holding treated as a market garden. Should a tenant wish to make such an improvement, it is necessary for the landlord to agree. Should the landlord refuse to agree (or fails to respond within a reasonable time) that the holding or the relevant part of it is to be treated as a market garden, the tenant may apply to the Tribunal for a direction under section 80(2). This section grants the Tribunal the power to direct that the holding or the relevant part of it is suitable for the purposes of market gardening, with regard to some or all of the proposed improvements.

Application by Landlord to Divide Holdings that are Part Market Garden

               C.16           If the direction by the Tribunal to treat the holding as a market garden applies only to a part of the holding, the landlord may apply that the direction is given only on the condition that the tenant consents to the division of the holding into two parts. One part is the part to which the direction applies, and it shall be held at rents settled and on the same terms and conditions as the rest of the holding.

Avoiding/Relaxing Covenants Against Heather and Grass Burning

               C.17           Section 21 of the Hill Farming Act 1946 applies where a lease of land in England or Wales contains a covenant, condition or agreement restricting or prohibiting the burning of heather or grass by the tenant. In such a situation, the tenant may apply to the Tribunal to avoid or relax the covenant, condition or agreement as they see fit. The Tribunal may take such action if it is apparent that the restriction is to prevent the proper use of the land for agricultural purposes comprised in the lease.

Application for Postponement of the Operation of a Notice to Quit

               C.18           After arbitration or proceedings, a notice to quit may have effect as a result of the arbitration or the granting of consent by the Tribunal. Section 13 of the 1987 Order provides that should the notice be due to come into effect on or within six months after the end of the arbitration or the grant of consent, the Tribunal (or the arbitrator) may of their own motion, or on the application of the tenant, postpone the termination of the tenancy for a period up to twelve months.

Order to Carry Out Work on Ditches

               C.19           Where the condition of a ditch is such that it may cause injury to any land, or prevents the improvement of the drainage of any land, the owner or occupier of the land may, under section 28 of the Land Drainage Act 1991, apply to the Tribunal for an order requiring persons named in the order to carry out such remedial work as is specified in the order. The named persons may be the owner or occupier of land through which the ditch passes, or which abuts the ditch, and any person who has a right to carry out the work specified, even if not an owner or occupier. If more than one person is named, the Tribunal may specify the work to be done by each person, or require that the work is done jointly. If the work is to be done jointly, the Tribunal may specify the proportions by which such persons must contribute to the work or the cost of the work.[13]

Order Authorising Applicant to Enter Specified Land to do Specified Drainage Work Related to a Ditch

               C.20           If the drainage of any land requires work to be carried out on a ditch passing through other land, the construction of such a ditch, or the alteration or removal of drainage work, the Tribunal may make an order under section 30(1) of the 1991 act. Such an order may be made on application from the owner or occupier of the land the drainage of which requires the work to be done. Such an order authorises the specified work to be done, and further authorises the applicant to enter, as far as is necessary, any land specified in the order.

               C.21           The Lord Chancellor must constitute a panel of persons experienced in matters relating to the drainage of land. For hearings under section 28 and section 30 of the 1991 act, one of the members of the Tribunal must be a person nominated by the chairman from the aforementioned panel.[14]

part iii
Territorial Jurisdiction

               C.22           Section 73(1) of the Agriculture Act 1947 constitutes the Tribunal, directing the Lord Chancellor to establish a number of separate areas comprising, as a whole, England and Wales. The devolution of Wales has had very little practical effect on the jurisdiction of the Tribunal. The National Assembly of Wales (Transfer of Functions) Order[15] has amended the Agricultural Act 1947 to the extent that any powers left to be exercised by the Minister in relation to the Tribunal[16] are, so far as they are related to Wales, transferred to the National Assembly for Wales. Further, the Government of Wales act gives the power to audit those Tribunals based entirely in Wales to the Auditor general for Wales.

               C.23           The relevant amendments under the Agriculture Act 1958 are restricted, by section 8, to England and Wales. The relevant acts of the Agricultural Holdings Act 1986, by virtue of section 102(3), are also limited to England and Wales. The Hill Farming Act 1946 and the Land Drainage Act 1991 are limited to England and Wales by section 21 and section 76(3) respectively.

part iv
Other Jurisdiction Issues

               C.24           The Agricultural Tenancies Act 1995[17] renders the Agricultural Holdings Act 1986 inapplicable to any tenancy beginning on or after 1 September 1995. There are a number of exceptions to this, including tenancies obtained by virtue of a direction of succession by the Tribunal under section 39 or 53 of the 1986 Act. Essentially, the Agricultural Tenancies Act 1995 excludes the jurisdiction of the Tribunal from any farm business tenancy.[18] Such tenancies are outside the ambit of the Tribunal, and are decided by ADR or arbitration.

part v
Further aPpeals

               C.25           The decisions of the Tribunal may be appealed to the High Court on a point of law. Section 6 of the Agricultural (Miscellaneous Provisions) Act 1958 provides that any party to the proceedings may request the Tribunal to refer any question of law to the High Court for decision. Such requests may be made before or after the Tribunal has given its decision. If the Tribunal has already given its decision, and refuses a request for referral, any aggrieved person may apply to the High Court directing the Tribunal to so refer.

Judicial Review

               C.26           It may be possible in some circumstances to judicially review the conduct and decisions of the Tribunal. Judicial review is available where the Tribunal has acted without jurisdiction, where fraud has been used to obtain the decision or the Tribunal is shown to be biased, and where the Tribunal has breached a rule of natural justice.

part vi
Overview of dispute resolution relating to agricultural property

               C.27           Determination of disputes concerning agricultural property has developed into a complex system encompassing several jurisdictions and a number of major statutes. Jurisdiction is divided between the Agricultural Lands Tribunal, the courts, the Rent Assessment Committee, ADR, legislatively prescribed arbitration, and the Agricultural Dwelling House Advisory Committee. The various dispute resolution methods fit together in a form of interlinking jurisdiction. The relationship between the jurisdictions is not “interlocking” in the sense described in Part V of this paper. The various bodies and methods do not determine distinct matters that may arise in a single dispute. Rather, each method and jurisdiction is itself distinct and separate. A dispute over a given piece of agricultural property will activate the jurisdiction of one method of dispute resolution, be it a tribunal, a court or ADR. Therefore, in any particular dispute, only one form of dispute resolution has jurisdiction, or a claim to jurisdiction, at any time. The confusion inherent in “interlocking” or “overlapping” jurisdiction is not an issue here.[19]

               C.28           There are clear demarcations between the appropriate methods to be employed, and between the appropriate bodies to resolve the dispute. The prescribed method of dispute resolution depends on a number of factors. Firstly, it must be asked whether or not the tenancy is of an agricultural holding or a farm business tenancy, as defined in the 1986 Act and the 1995 Act respectively.[20] These definitions are rather complex, but essentially involve a contract of tenancy to use the land for agricultural purposes.[21] Although a range of factors, such as succession, are relevant in determining the nature of the tenancy, the position can be roughly summarised by saying that if the tenancy was created before 1 September 1995, the Agricultural Holding Act 1986 applies. Conversely, if it was created on or after this date, the Agricultural Tenancies Act 1995 applies.

               C.29           If the tenancy is of an agricultural holding or a farm business tenancy, then the dispute resolution methods prescribed by the 1986 Act and the 1995 Act are activated, involving either arbitration, ADR, the Agricultural Land Tribunal, or the County Court.

               C.30           If the tenancy is for a dwelling house (also known as a “farm cottage” or “tied accommodation”), one begins with the date at which the tenancy was created. If created on or after 15 January 1989, The Housing Act 1988 applies.[22] Otherwise, the Rent Act 1977 or the Rent (Agricultural) Act 1976 will govern it. If the tenancy was created before 15 January 1989, and the tenant pays a normal rate of rent, they will be governed, as a “Protected Tenancy”, by the Rent Act 1977. The 1977 Act enables the jurisdiction of the County Court, and the claimant may also opt to use the High Court.[23] Note also that the Rent Assessment Committees have jurisdiction to resolve some matters under this act.[24]

               C.31           If the tenant pays little or no rent, and is a ‘qualifying worker’,[25] then the tenancy is a “Protected Agricultural Occupancy”, and the Rent (Agriculture) Act 1976 is the protecting legislation. The County Court and the High Court have jurisdiction on identical terms to those outlined above regarding the Rent Act 1977. Further, section 29 of the Rent (Agriculture) Act 1976 constitutes the Agricultural Dwelling House Advisory Committee. Briefly, the Committee provides non–binding guidance to the housing authority in the event of an application by a landlord to the authority that vacant possession of a dwelling house subject to either a protected or an assured occupancy will be needed to house persons to be employed by the landlord in agriculture.[26]

               C.32           Returning to the Housing Act 1988, the Act excludes from its protection those who control the farming of the land.[27] No definition of control is given. Under the Act, a tenancy of a dwelling house on agricultural land may be an “Assured Tenancy”, an “Assured Shorthold Tenancy” or, if certain criteria[28] are met, it may be an “Assured Agricultural Occupancy”. These distinctions, however, do not have any bearing on a jurisdictional analysis. Here, the nature of the dispute may grant jurisdiction to the Rent Assessment Committee, or the County Court or the High Court. The jurisdiction of the High Court, in relation to the County Court, operates in an identical fashion to the Rent Act 1977 and the Rent (Agriculture) Act 1976.[29]

Agricultural Land Tribunal

               C.33           The Agricultural Land Tribunal has jurisdiction over certain disputes regarding agricultural holdings created before 1 September 1995.[30]

Arbitration and ADR

               C.34           The Agricultural Holdings Act 1986 makes provision for the use of an arbitrator to resolve certain disputes over agricultural holdings.[31] As Rogers notes, the matters referable to an arbitrator are those which can be settled by a valuer, surveyor, or land agent with relevant expertise.[32] Examples include valuing rent payable on review,[33] valuation of damage by game,[34] and securing a written tenancy agreement.[35]

               C.35            Arbitration is the prescribed means of resolution for most disputes under the Agricultural Tenancies Act 1995, which concerns farm business tenancies created on or after 1 September 1995.[36] The 1995 Act imposes arbitration for a range of matters, which can be divided into two classes.[37] Firstly, any dispute over the rights and obligations of the parties under the 1995 Act, the tenancy, or any custom. Note that within this class, the parties may opt for ADR rather than arbitration, if they so wish. The second class of case essentially covers statutory rent reviews, disputes over refusal to consent to the provision of improvements or the terms on which the landlord gives consent, and disputes as to compensation on the termination of a tenancy.[38] In this class, arbitration is the only means of dispute resolution.

County Court and High Court

               C.36            Regarding the Agricultural Holdings Act 1986 and the Agricultural Tenancies Act 1985, he jurisdiction of the County Court is, to some extent, implicit. That is to say, if the dispute in question is not covered by the 1986 Act or the 1995 Act (or another piece of legislation), then one must turn to pre–existing jurisdiction which will usually rest in the County Court, and in some instances in the High Court. Concerning agricultural holdings, section 97 of the 1986 Act preserves all existing rights, powers and remedies regarding agricultural holdings so far as they are not expressly altered by the Act. Therefore, it is assumed that any dispute not dealt with in the Act, or by any of the alternative methods below, is referable to the County Court. The main areas of jurisdiction preserved for the court by section 97:[39]

1.       Actions for forfeiture, pursuant to a proviso for re–entry in the lease;

2.       Any question as to the applicability of sections 2 and 3 of the 1986 Act;[40]

3.       Actions for damages for breach of repairing covenant, if brought during the continuance of the tenancy;[41]

4.       Any question regarding the construction of notices to quit,[42] and contracts of tenancy;

5.       Proceedings for possession of agricultural land (for example, after termination of tenancy with the consent of the tribunal, by notice to quit).

               C.37           The County Court appears to have jurisdiction over farm business tenancies regarding termination of tenancies and construction of notices to quit.[43] There is no explicit “saving” provision, equivalent to section 97 of the 1986 Act, in the 1995 Act.

               C.38         Certain tenancies for agricultural land fall within the ambit of the Rent Act 1977, the Rent (Agriculture) Act 1976 or the Housing Act 1988.[44] Disputes under these Acts may fall within the jurisdiction of the County Court, the High Court, or the Rent Assessment Committees, depending on the nature of the dispute and the governing legislation.[45]

Rent Assessment Committee

               C.39           The Rent Assessment Committee has jurisdiction to assess the rent and terms of assured agricultural occupancies, assured Shorthold tenancies and assured tenancies under the Housing Act 1988. It also has jurisdiction to determine disputes under the Rent Act 1977, which can include land that was once agricultural, or a dwelling house on an agricultural holding that does not house either the farmer or an agricultural employee. [46]

Agricultural Dwelling House Advisory Committee

               C.40           Should a landlord require vacant possession of a protected or assured occupancy, he or she must apply to the relevant housing authority. The Landlord must show that the dwelling house is, or will be, needed to house a person who is, or will be, employed by the landlord for agricultural work. The landlord must also show that he or she cannot, by any reasonable means, provide alternative suitable accommodation. Finally, the landlord must establish that provision by the housing authority of vacant possession would be in the interests of “efficient agriculture”.[47] The housing authority may seek guidance from the Agricultural Dwelling House Committee, as constituted by section 29 of the Rent (Agriculture) Act 1976. The rulings of the Committee are not binding, but are extremely influential and are always followed by the authority. Decisions of the Committee are judicially reviewable.[48]

Lands Tribunal

               C.41         The Land Compensation Act 1973 gives the Lands Tribunal jurisdiction to determine certain matters concerning compensation and agricultural land. For example, section 34 of the 1973 Act bestows a right to farm loss payments for persons displaced from an agricultural unit, payable by the acquiring authority. Section 37 of the 1973 Act bestows a right to disturbance payments payable by the acquiring authority. There are a number of other provisions in the Act granting a right to compensation from the acquiring authority in a range of circumstances, and bestowing jurisdiction for dispute resolution upon the Lands Tribunal.

               C.42         This jurisdiction is separate from those dealt with above in that it is a “citizen and state” dispute, as opposed to the “party to party” issues handled in the other tribunals.

 

AGRICULTURAL LAND AND PROPERTY – JURISDICTION CHART

 

Note the existence of the Agricultural Dwelling House Advisory Committee, constituted by the Rent (Agriculture) Act 1971. See paragraph C.40.

Note also the jurisdiction of the Lands Tribunal to award compensation relating to agricultural land under the Land Compensation Act 1973. See paragraph C.41.