Agriculture (Miscellaneous Provisions) Act 1976–Application by son for tenancy on death of father–Appeal by landlords from decision of agricultural land tribunal in favour of son–Eligibility–Son jointly occupied a ‘commercial unit’ in partnership with his brother–Sole question of law for court was whether such joint occupation rendered applicant ineligible under section 18(2)(c) of Act–Different views taken by different tribunals–In Jackson v Hall (now under appeal to House of Lords) Court of Appeal assumed without argument that joint occupation of commercial unit was sufficient to disqualify–Whether judge bound by acceptance without argument by a superior court of a certain construction–Held no, but on judge’s own construction of section 18(2)(c) as well as by reference to analogous authorities, and with some assistance from the
This was an
appeal by the landlords, Peter Howard Thompson and James Montagu Carpenter, by
the case stated procedure from a decision of the agricultural land tribunal for
the West Midland Area in favour of Lewis Wilkinson, the applicant for a
direction under section 20(1) of the Agriculture (Miscellaneous Provisions) Act
1976, entitling him to a tenancy on the death of his father, George Lewis
Williamson. The holding in question consisted of some 22 hectares of riverside
land on the landlords’ Eardington Estate.
Gavin Lightman
(instructed by Wedlake Bell, agents for Ivens & Morton, of Kidderminster)
appeared on behalf of the appellants (landlords); Derek Wood QC and Miss J Moss
(instructed by Robbins Olivey & Lake, agents for Burges, Salmon & Co,
of Bristol) represented the respondent (tenant).
Giving
judgment, MR KEMPSTER QC said: On January 17 1978 George Lewis Williamson died.
He had been tenant of what I shall call ‘the holding’; being some 22 hectares
of riverside land forming part of the Eardington Estate and owned by Mr
Thompson and Mr Carpenter (the respondents).
On March 29
his son, Lewis Williamson, made application to the agricultural land tribunal
for the West Midland Area, pursuant to section 20(1) of the Agriculture
(Miscellaneous Provisions) Act 1976 for a direction entitling him to a tenancy
of the holding. The respondents opposed the application. After the hearing,
which took place on August 14 1978, the tribunal granted Lewis Williamson (the
applicant) the direction he sought. The respondents by way of appeal asked the
tribunal to state a case for the opinion of the High Court following the procedure
laid down by section 6(1) of the Agriculture (Miscellaneous Provisions) Act
1954. The tribunal acceded to this request and the case before the court, which
is dated November 9 1978, is a model of clarity and economy. The applicant
issued the appropriate originating notice of motion on November 28 1978.
The question
of law for the determination of the court is set out in paragraph 7 of the
case, and reads:
The question
of law for the opinion of the High Court is whether a person who is a joint
owner of certain land and a joint tenant of other land and in joint occupation
of all such land in partnership, such land being certified by the Minister in
accordance with section 18(6) of the Agriculture (Miscellaneous Provisions) Act
1976 as a commercial unit within the meaning of Part II of the Agriculture Act
1967, is the occupier of a commercial unit of agricultural land within the
meaning of Part II of the Agriculture Act 1967 for the purposes of section
18(2)(c) of the Agriculture (Miscellaneous Provisions) Act 1976.
Until November
14 1976 notice to quit an agricultural holding was effective, firstly, if given
within three months of the death of the tenant with whom the contract of
tenancy had been made, and, secondly, was also expressed to be given by reason
of such death. As from November 15 1976, however, although the landlord may
still terminate the tenancy of a deceased tenant, eligible and suitable persons
have been able to apply to the agricultural land tribunal for a direction for a
new tenancy, pursuant to Part II of the 1976 Act. The applicant in the present
case took such a course, as already mentioned. The question for me is: Was he
or was he not an ‘eligible’ person? No
one has challenged his suitability.
The
eligibility of an applicant depends upon three factors:
(1) close relationship to the deceased tenant;
(2) past dependence on the holding or on the
holding and other land for his livelihood;
(3) –and here I quote section 18(2)(c) of the 1976
Act, the material section for the purpose of my determination and the one that
gives rise to the issue I have to determine–‘He is not the occupier of a
commercial unit of agricultural land within the meaning of Part II of the
Agriculture Act 1967 or, if he is, occupies it as a licensee only.’
The expression
‘commercial unit’ is defined in section 40(2)(a) of the Agriculture Act 1967,
in these terms:
‘Commercial
unit’ means an agricultural unit which in the opinion of the appropriate
Minister is capable, when farmed under reasonably skilled management. of providing
full-time employment for an individual occupying it and for at least one other
man (or full-time employment for an individual occupying it and employment for
members of his family or other persons equivalent to full-time employment for
one man).
The applicant
contends that he was not the occupier of such a unit of agricultural
land at any material time. The respondents contend that he was. If the
applicant is right, as the agricultural land tribunal found, he is entitled to
the direction he obtained and to a tenancy. If he is wrong and the respondents
are right he is not so entitled and the holding will revert to the landlords
free of such encumbrance.
It is common
ground between the parties and stated in paragraph 2 of the case that at all
times which may be material the applicant, together with his brother, in fact
occupied a commercial unit of agricultural land within the meaning of Part II
of the Agriculture Act 1967. But, says the applicant, the words ‘the occupier’
in section 18(2)(c) of the 1976 Act mean the sole occupier. ‘As I occupied the
commercial unit jointly with my brother I am not rendered ineligible for a
direction for a new tenancy.’ The issue
which falls for determination by the court is, accordingly, entirely a matter
of the construction of the words of the statute which I have read. Different
land tribunals have, I am told, come to different conclusions as to their
construction.
Mr Lightman,
on behalf of the respondents, submits that the issue has now authoritatively
been determined by a decision of the Court of Appeal which is binding on me.
The decision in question, Jackson v Hall [1979] 2 WLR 505, is to
be considered by the House of Lords and it is contemplated that I may be asked
to certify the propriety of a direct appeal to that tribunal in the present
case (whichever way my decision goes) pursuant to Part II of the Administration
of Justice Act 1969.
In Jackson
v Hall the Court of Appeal was concerned to determine the time or times
at which the negative requirement of section 18(2)(c) fell to be satisfied. In
that appeal it appears (on p 506 H) that the case was stated in general terms,
‘. . . namely, whether the tribunal was correct in law in holding that the
applicant did not qualify as an eligible person within the meaning of section
18(2) of the Act 1976 and thereby refusing a direction entitling the applicant
to a tenancy.’ But on p 507, at letter
E, the Master of the Rolls set out the material facts upon which the court gave
its determination. It was held by a majority that the material times for the
purposes of an application were the dates of application to and hearing by the
agricultural land tribunal, not the date of the death of the tenant.
It must, I
think, have been assumed by everyone that the fact that the applicant in that
case was a joint occupier of a commercial unit at the time of the father’s
death would have disqualified him just as much as if he had been sole occupier.
The point was neither taken in argument nor referred to in the judgments as
being open to question. But it is apparent that the members of the Court of
Appeal gave the terms of section 18(2)(c) close attention. For example, at page
508 B the Master of the Rolls said: ‘Now, at the date of the father’s death,
neither of the sons could satisfy that requirement: because at that date they
were the occupiers of White House Farm, which was a ‘commercial unit’ and they
occupied it as tenants and not as licensees only.’ At p 509 G, going on to 510 A, Lawton LJ used
these words:
”Eligible
person”–under section 18(2)–‘means . . . a survivor of the deceased in whose
case the following conditions are satisfied–(a) he falls within paragraphs (a)
to (d) of subsection (1) above; (b) in the seven years ending with the date of
death his only or principal source of livelihood throughout a continuous period
of not less than five years, or two or more discontinuous periods together
amounting to not less than five years, derived from his agricultural work on
the holding or on an agricultural unit of which the holding forms part; and (c)
he is not the occupier of a commercial unit of agricultural land . . . or, if
he is, occupies it as a licensee only.’
If a survivor of the deceased means, and can only mean, a person who is
to be identified as going on living at the moment of the tenant’s death, that
person to be eligible must then have all the qualifications set out in
paragraphs (a), (b) and (c), and for the purpose of specifying those
qualifications at that moment the use of the present tense in paragraph (c) is
both appropriate and correct.
And Brandon
LJ, at p 511, E to H, said:
Under section
18(2) an ‘eligible person’ means a survivor who possesses three specified
qualifications. Qualification (a) is that he should have been either the spouse
or a sibling or a child (actual or by treatment) of the deceased. Qualification
(b) is that his only or principal income should, during a specified period or
periods before the death, have derived from his agricultural work on the
holding or on an agricultural unit of which the holding forms part.
Qualification (c) is that: ‘he is not the occupier of a commercial unit of
agricultural land within the meaning of Part II of the Agriculture Act 1967 or,
if he is, occupies it as a licensee only.’
The question for decision in this appeal is at what time or times an
applicant has to possess qualification (c) above in order to have the right, as
an ‘eligible person’ to apply under section 20(1), and in order to enable the
tribunal to be satisfied that he is such a person under section 20(2). The
Agricultural Land Tribunal (Yorkshire and Lancashire Area) and the High Court
(Sir Douglas Frank QC sitting as deputy judge) on a case stated by that
tribunal, have both decided that the relevant time is the deceased’s death. The
applicant, who does not, if that view is correct, possess qualification (c) in
this case, appeals against the latter decision, contending that there are two
relevant times and that these are, first, the time of the application to the
tribunal, and, secondly, the time of the hearing before it. In support of the
applicant’s contention reliance has been placed on the use of the present
tense, first in the phrases ‘he is not the occupier’ and ‘or, if he is,
occupies it as a licensee only’ in paragraph (c) of the definition of eligible
person in section 18(2), and, secondly, in the phrase ‘that the applicant is an
eligible person’ in section 20(2).
Is this court
bound by pronouncements on unargued points?
For the answer I turn to authority. First, to Morelle Ltd v Wakeling
[1955] 2 QB 379 at p 406. Sir Raymond Evershed MR, reading the judgment of the
court, said:
As a general
rule the only cases in which decisions should be held to have been given per
incuriam are those of decisions given in ignorance or forgetfulness of some
inconsistent statutory provision or some authority binding on the court
concerned; so that in such cases some part of the decision or some step in the
reasoning on which it is based is found, on that account, to be demonstrably
wrong. This definition is not necessarily exhaustive, but cases not strictly
within it which can properly be held to have been decided per incuriam, must,
in our judgment, consistently with the stare decisis rule which is an essential
feature of our law, be, in the language of Lord Greene . . . of the rarest
occurrence.
I next turn to
Joscelyne v Nissen [1970] 2 QB 86 at p 99. This again is the
judgment of the court read by Russell LJ.
The court is
not omniscient in the law, nor are counsel, however eminent. We work under
great pressure from the lists, and whilst not always ready to accept a
concession on a point of law from the Bar it is not infrequent to do so, and
moreover, on a point essential to the decision of the appeal, without further
investigation. We are attracted by a suggestion that the conceded point of law
should be open to argument in another case, provided it is made plain that that
should not be made on the basis for the further suggestion that where an
argument, though put forward, had been only weakly or inexpertly put forward,
the point of law should similarly be open: for much uncertainty could thus be
undesirably introduced.
The further
case in this context is National Enterprises Ltd v Racal
Communications Ltd [1975] 1 Ch 397. At p 406B Russell LJ again used these
words (and he mentions Morelle v Wakeling and canvasses the
principles relating to binding precedent, by reference to an authority alleged
to be binding on him). He said:
As I have
indicated, that question was not in issue in that appeal: it did not enter into
the grounds of appeal: all that happened was that the appeal was dismissed upon
rejection of the only grounds put forward. The court did not address its mind
to the point, nor pronounce upon it. In those circumstances it cannot be
necessary, if precedent is to be avoided, for the court to state in its
judgments that it was assuming without deciding the point. Accordingly, in my
judgment, we are not bound by precedent. . . .
During the
same year the Judicial Committee of the Privy Council gave its advice in the
case of Baker v The Queen, [1975] AC 774. Lord Diplock,
expressing the view of the majority of the Board, advised, at p 788G, in these
terms:
Strictly
speaking the per incuriam rule as such, while it justifies a court which is
bound by precedent in refusing to follow one of its own previous decisions (Young
v Bristol Aeroplane Co Ltd [1944] KB 718) does not apply to decisions of
courts of appellate jurisdiction superior to that of the court in which the
rule is sought to be invoked: (Broome v Cassell & Co Ltd
[1972] AC 1027). To permit this use of the per incuriam rule would open the
door to disregard of precedent by the court of inferior jurisdiction by the
simple device of holding that decisions of superior courts with which it
disagreed must have been given per incuriam. Nevertheless, in view of the
practice of the Judicial Committee as respects raising new points of law in
appeals to this Board, to which reference has already been made, the Court of
Appeal for Jamaica in dealing with Reg v Wright 18 WIR 302, was
entitled to examine closely the report of the opinion of this Board in Maloney
Gordon v The Queen to see whether an inference could be drawn as to
what part, if any, of its ratio decidendi did not bear the authority of an
opinion reached by the Board itself but was merely a proposition of law assumed
by the Board to be correct for the purpose of disposing of that particular
case. The report of Maloney Gordon v The Queen that was available
to the Court of Appeal for Jamaica did not include the arguments of counsel;
but the absence from the Board’s opinion of any reasoning supporting the
proposition of law as to the effect of section 20(7) of the Constitution on
section 29(2) of the Juveniles Law and, in particular, the absence of any
reference to section 26(8) of the Constitution or to Director of Public
Prosecutions v Nasralla gave rise to a very strong inference, not
that the Board had acted per incuriam but that it had merely accepted as
correct, for the purpose of disposing of the particular case a proposition
which counsel in the case either had agreed or under the practice of the
Judicial Committee were not in a position to dispute. Their Lordships have had
the advantage, denied to the Court of Appeal for Jamaica, in Reg v Wright
18 WIR 302, of perusing the cases lodged by the parties in the appeal to this
Board in Maloney Gordon v The Queen. In their Lordships’ view
these provide clear confirmation that such was the case. For these reasons the
Court of Appeal for Jamaica was not bound to follow the decision of this Board
in Maloney Gordon v The Queen as to the effect of s 20(7) of the
Constitution on s 29(1) of the Juveniles Law.
From such
authorities I deduce that while it is not appropriate for this court to invoke
the per incuriam rule it is appropriate to inquire whether or not the
Court of Appeal in Jackson v Hall accepted a certain construction
of section 18(2)(c) of the 1976 Act as correct for the purpose of disposing of
the particular case stated, and no more. If the Court of Appeal did no more, I
do not consider this court bound.
Referring
again to the particular passages in the judgments already cited I am of the
opinion that the members of the Court of Appeal did not do more than accept,
for the purposes of the issue before them, that a joint tenancy would
disqualify under section 18(2)(c) of the 1976 Act. Accordingly, this court is
not bound by Jackson v Hall. Despite having so found, however, I
cannot avoid being influenced by the fact
assumption on which the argument proceeded.
As a matter of
impression section 18(2)(c) seems to me apt to embrace both a sole and a joint
occupier; particularly as it envisages that the eligible person may occupy as ‘a
licensee only.’ As a matter of pure
construction I come to the same conclusion; even after consideration of the
persuasive reasoning both of the deputy chairman of the West Midland Area
Tribunal and of Mr Wood. I do so partly because in Part II of the 1976 Act the
word ‘sole’ is used whenever the drafts-man wished to prescribe the singular
(the material references being sections 16(1)(a), 18(1) and 18(4)(e) and (g))
and partly in reliance on analogous authorities which seem to me to demonstrate
that the use of the definite rather than of the indefinite article is a poor
guide to the intention of the legislature.
I refer, in
this regard firstly to Lloyd v Sadler [1978] QB 774. Judgment was
given on January 19 1978 and I refer in particular to p 783C, in the judgment
of Megaw LJ. Here he was concerned with the questions of joint tenancy.
I have come
to the conclusion that, on the true construction of section 3(1)(a) of the Act
of 1968, the ordinary law as to joint tenancy does not have to be, and ought
not to be, applied in all its strictness. I base that opinion, primarily at
least, on the judgment of Scrutton LJ in Howson v Buxton (1928)
97 LJKB 749. It is not a direct authority. There is no direct authority. There
are various decided cases to which we were properly referred as providing
guidance by analogy, or as illustrating the general rule as to a joint tenancy.
Some of them, or dicta in them, certainly lend support to the submissions on
behalf of the landlord, but I find the most helpful guidance in Howson v
Buxton. It appears to me to decide that, where an Act of Parliament
refers to ‘the tenant’ and the letting is to two or more persons jointly, it is
permissible for the court to hold, if so to do makes better sense of the
relevant statutory provision in its particular context, that one of those
persons, by himself, may for certain purposes be treated as being ‘the tenant.’
Then I refer
to Tilling v Whiteman [1978] 3 WLR 137, another Court of Appeal
decision, judgment there being given on March 22 1978, at p 147F, in the
dissenting judgment of Eveleigh LJ which in due course was expressly approved
by Lord Wilberforce in the House of Lords [1979] 1 WLR 401 at p 404B. The
passage approved reads as follows:
I now turn to
consider the relevant words of the Act of 1968 actually found in Case 10. Case
10 begins: ‘Where a person who occupied the dwelling-house as his residence (in
this Case referred to as the ‘owner-occupier’) let it on a regulated tenancy. .
. .’ The appellant did occupy the
dwelling-house as her residence. (We are not concerned in this present appeal
to decide whether the occupation must be immediately before the letting or
whether occupation at any previous time will do. However, as the past perfect
tense is used for both verbs, there is much to be said for the contention that
the occupation has to be the last occupation of the dwelling-house before the
letting). Further, in my opinion the appellant is a person who let on a
regulated tenancy. It is argued that because her joint owner joined in the
lease, the appellant cannot be heard to say that she let. Counsel for the
respondent says that she is forced to say ‘they let.’ I do not accept this argument. Case 10 is
concerned to consider the qualifications of a person. The emphasis is upon
occupation. A person in occupation should not be deterred from making way for a
tenant by the thought that he or she may be kept out of the house permanently.
There are two conditions which have to be fulfilled to allow a person back into
occupation. That person must have occupied and that person must have let. The
benefit of Case 10 is given to one who can stand in the way of freedom of
letting not only by virtue of occupation, but also having the power to refuse
to let. It seems to me to be wholly truthful for the appellant to say that she
let the house on a regulated tenancy. One of two joint owners can in law deal
with the property without the concurrence of the other in so far as the rest of
the world is concerned. The fact that two people do a thing together does not,
in my understanding of the English language, prevent either one claiming that
he himself did it. The argument to the contrary entails reading into the Act
words something like ‘on his own.’
To adopt or
adapt the words of Eveleigh LJ, I consider that clause 18(2)(c) of the 1976 Act
is concerned to consider the qualification, or possibly disqualification, of a
person and that the emphasis is on occupation.
In so finding
I do not overlook an earlier decision of the Court of Appeal in a contrary
sense: Jacobs v Chaudhuri [1968] 2 QB 470. The headnote of that
case reads:
By a lease
dated November 8 1965 the landlord of a theatre demised it to the applicant and
his partner as joint tenants for a term of one year from September 29 1965, at
a rent of £1,500 per annum for use as a bingo hall only. The lease contained an
absolute prohibition against assignment, underletting, or parting with
possession of the premises or any part thereof, and gave ‘the tenants’ an
option to take a new lease at the expiration of the current term for two years
at the same rent and on the same conditions except the option. The applicant
and his partner duly took possession of the premises and carried on the
business of a bingo club until November 26 1965, when they fell out and the
partner left, handing over the premises and the business to the applicant who
carried it on thereafter. The partnership was subsequently dissolved and the
applicant paid to his former partner £1,300 in satisfaction of all his rights
in the business, so that the applicant alone had the sole beneficial interest
in the business carried on in the premises. On August 23 1966, by a notice to
terminate given pursuant to section 25(1) of the Landlord and Tenant Act 1954,
and expiring on February 27 1967, the landlord determined the tenancy. The
applicant on October 18 1966 served on the landlord a counter-notice as one of
the tenants, pursuant to section 29 of the Act of 1954, stating that he was
unwilling to give up possession of the premises, and he subsequently applied to
the court for a new tenancy, pursuant to section 24(1) of the Act of 1954. On
the preliminary question whether there was jurisdiction to entertain the
application and grant a new tenancy the county court judge held that there was
no such jurisdiction and dismissed the application.
The appeal was
dismissed by a majority on the basis that on the true construction of section
24(1) of the 1954 Act ‘one of two or more joint tenants’ was not ‘the tenant’
within the meaning of section 24(1), and therefore there was no jurisdiction to
entertain an application by one of two or more joint tenants for a new tenancy
of business premises. On p 486A Harman LJ used these words:
Here the
tenancy and right to a new lease was jointly owned by the two. The landlord
admits that the applicant is beneficially the sole owner of the business and
all its assets, including the lease, but he says that this is irrelevant as
Part II of the Act of 1954 is dealing with the legal estate and not the
equities behind it. The Act of 1954 made an inroad, so to speak, on the common
law right of landlords to resume possession of their property when a lease
expired and this ought not to be stretched. The landlord knew when he made the
demise that the persons to whom it was made might require statutory rights of
renewal but not that one of them severally might have such a right. The
landlord points out that the wide definition of the word ‘tenant’ contained by
reference to section 50 of the 1954 Act does not apply to Part II, but only to
Part III, and argues from this that only a person who can legally be described
as ‘tenant’ and not ‘any person entitled in possession to the holding under any
contract of tenancy’ under the extended definition applied to Part III can be
entitled.
In my
understanding of that authority the decision was made on the basis that the
application of the one joint tenant would necessarily affect the rights and obligations
of the other.
The conclusion
which I have reached is fortified by reference to the terms of the form of
application for a new tenancy prescribed by Rule 2(1) of the Agricultural Land
Tribunals (Succession) Rules 1976, which are scheduled to The Agricultural Land
Tribunals (Succession to Agricultural Tenancies) Order 1976, and which took
effect at the same time as the related statute. The terms of paragraph 11 of
that form read: ‘(a) I occupy as owner-occupier/tenant/licensee the following
agricultural land,’ then (b) ‘I do not occupy any other agricultural
land.’ These terms clearly require
details of joint as well as sole occupation of agricultural land by the
applicant.
Whether or not
I am entitled so to be fortified and to refer to forms and rules as an aid to
construction has been strongly
the Court of Appeal in Chancery. The relevant decision is Ex parte Wier
(1871) 6 Ch App 875. At p 879 Mellish LJ, giving the judgment of the court,
said: ‘. . . we are of opinion that, where the construction of the Act is
ambiguous and doubtful on any point, recourse may be had to the rules which
have been made by the Lord Chancellor under the authority of the Act, and if we
find that in the rules any particular construction has been put on the Act,
then it is our duty to adopt and follow that construction. There are several
rules relating to debtor’s summonses,’ and then he goes on with the particular
facts of that case.
More recently
the Court of Appeal came to a similar conclusion. In Hales v Bolton
Leathers Ltd [1950] 1 KB 493 at p 505 Somervell LJ (like Mellish LJ nearly
80 years before giving the judgment of the court) said: ‘We agree that these
regulations could not contradict the Act. They might, we think, properly be
referred to as working out in detail the provisions of the Act consistently
with its terms. So far as they are relevant to the present issue they seem to
us to set out with greater particularity the effect which, so far as the
present case is concerned, follows from the words of section 89(1).’ This was a case under the Workmen’s
Compensation Act. And then in the House of Lords [1951] AC 531 at p 548 Lord
Oaksey said ‘I agree with your Lordships in thinking that the regulations
themselves . . . cannot alter the meaning of the words of the statute, but they
may, I think, be looked at as being an interpretation placed by the appropriate
government department on the words of the statute.’ And in a further reference, brought to my
attention very properly by Mr Wood, at p 553, Lord McDermott said ‘For light–on
a particular point–one must look outside the Act to regulations made under
certain of its provisions for the purpose, amongst others, of determining in
the words of subsection (4) of section 55, ‘the time at which a person is to be
treated for the purposes of this Act as having developed any disease’.’
In the
circumstances which include the doubts expressed by Upjohn LJ in Stephens
v Cuckfield Rural District Council [1960] 2 QB 373 at p 381, I find that
this court at least is bound as submitted and entitled to refer to and to use
the form as an aid to construction.
Cogent
submissions were advanced on both sides with reference to the policy of the
1976 Act and the hardship that might be caused by the adoption of the one
construction rather than the other. That regard for the object of legislation
is permissible when seeking to resolve an ambiguity is apparent from the
decision of the Privy Council in Coast Brick & Tile Works Ltd v Raichand
[1967] 1 AC 192. But I do not feel able in the extant case to conclude what the
policy of Parliament was in relation to section 18 other than further to inhibit
the landlord’s common law rights by permitting a member of a class of close
relatives who has lived by agricultural work and is not in occupation of other
agricultural land to apply for a tenancy of the holding.
It is,
however, common ground that for fiscal reasons multi-occupation of
owner-occupied farms is commonplace, if only within the family, and that the
applicant’s construction of section 18(2)(c) could virtually render the
disqualification or limitation of eligibility thereby provided of academic
importance. It may well be, of course, that the decision in Jackson v Hall
has already done so.
In the overall
context of policy and hardship I find nothing to persuade me that section
18(2)(c) should be construed in the way contended for by the applicant.
In the
circumstances I determine the question of law set out in the special case as
follows:
‘A person who
is a joint owner of certain land and a joint tenant of other land and in joint
occupation of all such land in partnership, such land being certified by the
Minister in accordance with section 18(6) of the Agriculture (Miscellaneous
Provisions) Act 1976, within the meaning of Part II of the Agriculture Act
1967, is the occupier of a commercial unit of agricultural land within
the meaning of Part II of the Agriculture Act 1967 for the purposes of section
18(2)(c) of the Agriculture (Miscellaneous Provisions) Act 1976.’
The
respondents to the application accordingly succeed in this appeal.
The decision
of the agricultural tribunal was reversed and the appeal allowed with costs.
The judge granted a certificate under section 12 of the Administration of
Justice Act 1969 to enable application to be made to the House of Lords for
leave to appeal directly to the House (the ‘leap frog’ procedure which allows the
Court of Appeal to be by-passed). The hope was expressed that, if the House
gave such leave, it would be possible for the hearing by the House to catch up
with that in Jackson v Hall (in which leave to appeal was given by the Court of Appeal).
