Agriculture (Miscellaneous Provisions) Act 1976, Part II — Provisions for succession — Eligibility — Appeal by landlords by case stated against a decision of an agricultural land tribunal holding the applicant entitled to a tenancy following the death of her husband — No question as to applicant’s suitability, but questions as to eligibility under section 18(2) (b) and (c) — Tribunal had held that the applicant qualified under both the principal source of livelihood test and the non-occupation of a commercial unit test — After consideration of the somewhat complicated facts, which are set out in the judgment, the judge agreed with the tribunal’s conclusion that the applicant was not defeated by the commercial unit test — Although she had managed the unit in question, which in fact she owned after her husband’s death, she had not ‘carried on any activity’ on it, and so had not ‘occupied’ it; such activity had been carried on by others — The judge, however, disagreed with the tribunal that the applicant had passed the principal source of livelihood test — During the seven years preceding her husband’s death the applicant had left substantial amounts of her share of profits undrawn — The judge rejected the tribunal’s view that undrawn profits ranked as a source of livelihood and noted that her investment income exceeded her drawn profits — Hence the applicant was ineligible under this head — In answer to a third question in the case stated the judge ruled that it must be shown that, during the requisite period mentioned in para (c) of section 18(2), the applicant’s principal source of income has been derived either from the relevant holding or from an agricultural unit of which it formed part at the date of the deceased’s death — Landlords’ appeal allowed
In this appeal
by case stated the landlords, Trinity College, Cambridge, challenged an
agricultural land tribunal decision in favour of the applicant, the present
respondent, Mrs Mary Doreen Caines, directing that she was entitled under
section 20 of the 1976 Act to tenancies of a farm known as Heath Farm,
Petersfield, and an adjoining holding of 17 acres.
Peter
Langdon-Davies (instructed by Taylors, of Newmarket, Suffolk) appeared on
behalf of the appellants; Robert Pryor QC (instructed by Burnley & Geach,
of Petersfield) represented the respondent.
Giving
judgment, WEBSTER J said: This is an appeal by case stated by the Master,
Fellows and Scholars of Trinity College, Cambridge, against a decision of the
agricultural land tribunal on an application by the respondent, Mary Doreen
Caines, for a direction under section 20(5) of the Agriculture (Miscellaneous
Provisions) Act 1976 that she be entitled to tenancies of two adjoining
holdings, the first being a farm known as Heath Farm, Petersfield, and the
second being 17 acres of land immediately adjoining that farm.
When alive, an
agricultural tenant has certain security of tenure not enjoyed by other
tenants, but on his death that security ends save for the provisions of
sections 18 and 20 of the 1976 Act. Section 18(1) of the Act provides:
Where after
the passing of this Act the sole (or sole surviving) tenant of an agricultural
holding dies and is survived by any of the following persons:–
and then there
follow four paragraphs setting out the four specific relationships
the following
sections of this Part of the Act . . . shall apply unless excluded by
subsection (4) below.
Subsection (4)
is of no relevance and I have omitted some of the immaterial parts of the
subsection.
Section 20(1)
provides:
‘Any eligible
person may within the relevant period apply to the Tribunal for a direction
entitling him to a tenancy of the holding.’
Subsection (2)
is in these terms:
Where only
one application is made under this section the Tribunal, if satisfied that the
applicant is an eligible person, shall determine whether he is in their opinion
a suitable person to become the tenant of the holding.
Subsection (5)
provides:
If under the
preceding provisions of this section only one applicant is determined by the
Tribunal to be in their opinion a suitable person to become the tenant of the
holding, the Tribunal shall, subject to section 22 of this Act, give a
direction entitling him to a tenancy of the holding.
The definition
in section 18(2) of ‘eligible person’ is as follows:
‘eligible
person’ 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) . . . ; (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 within the meaning of
Part II of the Agriculture Act 1967 or, if he is, occupies it as a licensee
only;
Upon Mrs
Caines’ application under section 20, no question arose about her suitability.
It was common ground that she was, or would be, a suitable tenant. Nor, of
course, did any question arise about her falling within paragraphs (a) to (d)
of section 18(1). She is the deceased tenant’s wife. The issues were whether
she satisfied the conditions of paragraphs (b) and (c) of the definition of
‘eligible person’.
The case
stated raises three questions, two of which go to paragraph (b) of that
definition, and one of which goes to paragraph (c). But I will first set out the
facts found by the tribunal, which are common to all three questions and which
provide the general background to the application and to this appeal.
Mrs Caines
married her late husband in 1954 and became his partner when his father died in
1973. At that time, Mr Caines was the tenant of Heath Farm and also of
Stanbridge Farm. In 1976 Mr Caines and Mrs Caines jointly purchased Stanbridge
Farm. Stanbridge Farm is contiguous with Heath Farm. In 1973, when Mr and Mrs
Caines became partners, there was no written legal document, but the terms of
the partnership were that one-third of the profits went to Mrs Caines and
two-thirds of the profits went to her husband.
Mr Caines and
Mrs Caines have three children, the eldest of whom is a son, Peter, who was
born on February 1 1962, and the second of whom is a son, Richard, born on
March 11 1965. The third child is a daughter who does not feature in the case.
In 1978, Mr
Caines became ill and by 1979 he was diagnosed as suffering from a cerebral
cyst. From a date early in 1979, he ceased to be the effective manager of the
family farming enterprise and the major responsibility devolved upon Mrs
Caines.
In 1979 the
Caines family and their advisers considered what steps should be taken to
minimise capital transfer tax, the object of the steps to be taken being to
ensure, so far as possible, that their two sons would be able to follow a
career in farming when they grew up. One of the steps which was then taken was
to execute a partnership agreement to replace the partnership agreement of
1973. That partnership agreement was an agreement between Mr and Mrs Caines and
their two sons, Peter and Richard. It seems quite clear, although not expressly
stated in the case, that the terms of that agreement provided that the two sons
should each be entitled to a small share of the profits and that Mr and Mrs
Caines should share the balance of the profits 50 : 50.
When, in 1981,
Mr Caines’ health became still worse, further discussions were held with a view
to securing, if it was possible, a position in which Mrs Caines would be
entitled to succeed her husband as tenant of Heath Farm in the event of his
death. In order to bring about that position, the following steps were taken.
First of all, the 1979 partnership was dissolved; secondly, with effect from
August 1 1981, a new partnership came into existence in relation to Heath Farm,
the partners of which were Mr Caines with 10% of the income, Mrs Caines with
80% of the income and their son, Peter, with 10% of the income. At the same
time, another partnership was formed in relation to Stanbridge Farm of which
the partners were Mr Caines with 90% of the income and their son, Richard, with
10%.
as joint owners of Stanbridge Farm, let that farm to Mr Caines and Mrs Caines’
brother, a Mr Atkinson, at a full commercial rent.
Mr Caines,
unhappily, died in January 1982, about five and a half months after these new
arrangements had come into operation. On his death, the landlords served notice
to quit Heath Farm on his personal representatives, whereupon Mrs Caines
applied for a direction entitling her to a tenancy of that farm. The landlords
resisted that application on the grounds that Mrs Caines could not show that
she derived her principal source of livelihood from agricultural work on Heath
Farm or on an agricultural unit of which Heath Farm formed part and, secondly,
on the grounds that the landlords believed the applicant to be the occupier of
a commercial unit of agricultural land otherwise than as a licensee only,
namely of Stanbridge Farm.
The tribunal
allowed her application and made a direction that she was entitled to a tenancy
at Heath Farm. As I have stated, on the landlords’ appeal by case stated, three
questions are asked for the opinion of this court, the first of which is:
Whether upon
the facts disclosed by the evidence . . . Mrs Mary Doreen Caines, can be held
not to have been in occupation of a commercial unit of agricultural land within
the meaning of Part II of the Agriculture Act 1967 or, alternatively, to have
occupied the same as a licensee only so as to achieve eligibility in accordance
with the definition contained in section 18(2) of the Agriculture
(Miscellaneous Provisions) Act 1976.
The facts relevant
to this first question, apart from the background facts which I have already
recited, are as follows. Firstly, it has been common ground throughout the
proceedings that Stanbridge Farm is a commercial unit. Secondly, during the
whole of the period of about five and a half months between the date when the
new arrangements came into operation and Mr Caines’ death, and at all times
after that period until the date of the application, Mrs Caines continued to
live in the house at Stanbridge Farm where she and her husband had lived before
his death and, by virtue of a mandate from the partners, to operate the bank
account of the Stanbridge partnership.
The tribunal
recited in the case they stated that Mrs Caines ‘and her advisers freely stated
in evidence that the sole purpose of the arrangements . . . was to secure
eligibility for’ Mrs Caines or her son ‘Peter in order to further the plan that
Peter should eventually inherit the tenancy of Heath Farm’.
None the less,
there is no suggestion now made — even if the suggestion had been made earlier
— that those arrangements were in any sense a sham. It is accepted by Mr
Langdon-Davies, on behalf of the landlords, that the acts done and the
documents executed by the parties to the arrangements were not intended by them
to give to third parties or to a court the appearance of creating between the
parties legal rights and obligations different from the actual legal rights and
obligations which the parties intended to create.
I draw
attention to the fact that, as they stated in the case: ‘The tribunal accepted
the evidence of Mr Atkinson’ who gave evidence before them ‘and as a result
were fully satisfied that he understood his duties towards Richard as his
trustee, and that if any conflict of interest between’ Mrs Caines ‘and Richard
arose, he would regard it as his duty to favour the interests of Richard.
Furthermore, the tribunal took the view that it was clear from the evidence
that’ Mrs Caines ‘herself realised that in entering into these arrangements she
might fail to succeed to the tenancy of Heath Farm, and not in fact be the
farmer at Stanbridge Farm’.
Before
considering this first question, I will add some other facts which, as it seems
to me, are inevitable inferences to be drawn from the tribunal’s findings or
from an agreed document. They are: firstly, that upon Mr Caines’ death, his
interest in the partnership of Stanbridge Farm devolved upon his son, Richard;
secondly, that upon Mr Caines’ death, his interest in the tenancy of that farm
devolved upon his other joint tenant, Mr Aitkinson; and thirdly, that at all
material times, the joint tenant and, later, the surviving tenant, held the
tenancy in trust for the partnership and later for Richard.
Finally, I
refer to three other findings which the tribunal made in the reasons which they
gave for, what were in fact, two decisions which they made, a preliminary one
and then a final decision on the merits as a whole. The first such finding was
that as Mr Caines’ illness became worse, Mrs Caines had to be more and more
responsible for running Heath Farm and Stanbridge Farm and that there came a
time in autumn of 1981 when she was solely responsible for the day-to-day
running of those farms. They found that the position since the date of Mr
Caines’ death had been that whatever she was doing before that date, she had
continued to do since that date. They found, from the point of view of her
ordinary everyday daily life, that there had not really been any difference
between before and after the autumn of 1981 when her husband finally became too
ill to take any part at all in the management of the farms.
There is no
finding of an agreement, between Mrs Caines and Mr Atkinson or between Mrs
Caines and the partnership or Richard, that she should manage Stanbridge Farm,
although there is an oblique reference to her providing contractual services in
this context.
At one passage
in the first reasons that they gave, the tribunal said: ‘Furthermore we
consider that he’ — that is to say Mr Atkinson — ‘could at any time . . . say to
his sister that he did not wish her to carry on providing these contractual
services and she equally could say that she did not wish to go on providing
them.’ I treat that reference as, at
least, enabling me to draw an inference that Mrs Caines was acting as farm
manager of Stanbridge Farm pursuant to a contract between herself and Mr
Atkinson, or between herself and the partnership, or between herself and
Richard.
The last two
facts to which I need to refer are these. The only benefit which Mrs Caines had
out of Stanbridge Farm was that out of the account of that farm her sons’
school fees were paid; save, of course, for the fact that as owner of the farm,
she was in receipt of an income for the rent of that farm of £6,600 per year,
which the tribunal found was more than a full rack rent.
The tribunal’s
conclusion on the question, ‘Who was the occupier of Stanbridge Farm?’ was that it was to be decided by the
definition in section 109 of the Agriculture Act 1947 (to which I shall refer
later in this judgment) and was that the only person who fulfilled that
definition was Mr Atkinson in his fiduciary capacity and that accordingly the
applicant was not the occupier.
Mr
Langdon-Davies, on behalf of the landlords, submits that the inevitable
inference from the facts found by the tribunal is that Mrs Caines occupied
Stanbridge Farm and that she did so not as a licensee only. He relies upon the
facts that Mrs Caines owns the farm, that she occupies the farmhouse and that
she has managed the farm at least since the date of her husband’s death, just
as she did before it.
But I am
unable to draw that inference from those facts. Mrs Caines has no interest in
the tenancy of the farm — which is a genuine one — and there is no suggestion,
let alone any evidence, that she has any interest in the partnership or in
Richard’s interest in the farm attributable to that partnership. The fact that
school fees were paid out of the farm account I do not take to be a finding
inconsistent with that conclusion; but I assume that the school fees paid out
of that account were the fees of her son, Richard, rather than of her elder
son, Peter.
Mrs Caines’
occupation of the farmhouse is quite consistent, in my view, with her occupying
it in her capacity as manager of the farm. It seems to me that the clear, if
not inevitable, inference from the facts found is that she does not occupy the
farm itself at all (it is occupied either by Mr Atkinson or by the partnership)
and that, though she occupies the farmhouse, she does so as a licensee only.
Mr
Langdon-Davies seeks to rely, as he is fully entitled — perhaps bound — to do,
upon the provisions of section 109 (5) of the 1947 Act, to which the tribunal
referred in their case. That section is probably to be incorporated, for the
purpose of defining the word ‘occupier’, by reason of the provisions of section
40(2) of the Agriculture Act 1967, and the definition of the expression
‘agricultural unit’ in section 75(2) of that Act.
Section 109(5)
provides:
References in
this Act to the farming of land include references to the carrying on in
relation to the land of any agricultural activity; and in relation to any
agricultural activity the person having the right to carry it on shall be
deemed to be the occupier of the land.
But even
though Mrs Caines is managing the farm, that does not in my judgment constitute
the carrying on by her of ‘any agricultural activity’. It is the tenant or the
partnership, or Richard himself, who carries on that activity and who has the
right to carry on the activity of farming Stanbridge Farm and of employing Mrs
Caines to manage, not to carry on, that activity — giving her no right to carry
on that activity.
Mr
Langdon-Davies submits finally that since Mrs Caines is the owner of Stanbridge
Farm, she does not occupy such part of the farm as she does occupy ‘as a
licensee only’. But, in my view, there would be no force in that submission
even if, contrary to my conclusions,
virtue of her ownership of the farm, but by virtue of her agreement or
arrangement either with Mr Atkinson or with the partnership or with her son,
Richard. I therefore reject that final submission.
Accordingly, I
have answered the first question in the affirmative, so that her eligibility
for the tenancy of Heath Farm is not defeated on the ground of any occupation
by her of Stanbridge Farm.
The second
question is: ‘Whether sums credited to’ Mrs Caines ‘in the accounts of the
Farming Partnership of which she was a member by way of her share of the
profits of the said Partnership during the period of seven years ending with
the death of’ Mr Caines ‘can, to the extent that they remained undrawn by’ Mrs
Caines ‘and were accordingly not applied in maintaining or sustaining her,
properly be said to have constituted a source of livelihood of’ Mrs Caines.
The facts
relevant to this question, in addition to those that I have already cited, are
as follows. Accounts were produced to the tribunal for the seven years prior to
Mr Caines’ death. Those accounts were accounts covering Heath Farm and
Stanbridge Farm and two additional much smaller farms which were farmed, first
of all, by Mr and Mrs Caines, and then by Mrs Caines either as manager or
otherwise — depending on which part it was — as one venture.
Those accounts
show: that until April 1 1979, Mrs Caines had been credited with a one-third
share of the income of the farming business carried on at those farms; that
from April 1 1981 until July 1 1981, Peter and Richard had received a modest
share of the income from the family farming business and that the rest of that
income was allocated to Mr and Mrs Caines in equal shares; that from July 1981
until her husband’s death, Mrs Caines’ farming income was derived solely from
Heath Farm; and that during the whole of the seven years before her husband’s
death, Mrs Caines had had income derived from sources other than the farming
business, but that the income with which she was credited in the accounts of
the farming business exceeded her income from other sources. The actual
drawings, however, of Mrs Caines from the consecutive partnerships were
significantly less than one-half of her total income.
Those facts
which I have recited are taken directly from the case stated. Schedules are
exhibited to the case and they enable me to set out the facts in rather more
detail. All the figures that I shall now recite are gross figures before tax.
In the eight years from 1975 to 1982, Mr Caines’ total share of the farming
venture was £64,656 and Mrs Caines’ share was £48,237. In that same period, Mr
Caines drew £43,427 of his share of the profits and ploughed back into the
business £21,229. During that same period, Mrs Caines drew £12,176 and ploughed
back £36,061.
The best year
in that period was 1979, when Mr Caines’ total share of the profits was £20,782
and Mrs Caines’ total share of the profits was £10,391. In that year, Mr Caines
drew £5,653 and Mrs Caines drew £2,618. Their total joint drawings were about
£8,400. Although in that year Mrs Caines had a personal investment income of
£1,726, making a gross total income (if added to the figure of £8,400) of just
over £10,000, I think there must be an inevitable inference that the family’s
expenses, with children being educated, were appreciably more than that. I
think it is an inevitable inference that Mr Caines had a not insubstantial
private income which was wholly or partly used to meet the balance of those
living expenses, but I add that that inference does not affect my answer to
this second question.
The worst year
during that period was 1980, when Mr Caines’ total share of the profits was
£2,932 and Mrs Caines’ total share of the profits was £2,931. During that year,
Mr Caines drew £5,971, partly out of the accumulated profits for the previous
years, and Mrs Caines drew £1,322 and ploughed back £1,609.
In that same
period of eight years from 1975 to 1982, Mrs Caines’ personal investment income
totalled £16,297, ranging from £817 in the worst year (1976) to £2,880 in the
best year (1977). Over that period, her investment income represented 25.25% of
her total income, including all of her share of the farm profits, whether drawn
or undrawn.
But as she
drew only about one-quarter of her share, her investment income during that
period represented about 125% of her withdrawn profits.
The tribunal
decided ‘that source of livelihood’ — within the meaning of those words in the
relevant paragraph of the definition of ‘eligibility’ — ‘must mean something
more than’ — drawn — ‘income and that the whole of the income both drawn and
undrawn must . . . be taken into account’. They go on to state that had they
‘taken a different view and had they considered that undrawn income should not
be taken into account they would have been forced to the conclusion that the
principal source of livelihood of the applicant was not derived from work on
the holding’.
Mr
Langdon-Davies, on behalf of the landlords, submits that only money actually
drawn can constitute a source of livelihood and that if regard is had only to
the drawn profits, he would adopt the tribunal’s conclusion that ‘the principal
source of livelihood’ of Mrs Caines ‘was not derived from work on the holding’.
Mr Pryor, on behalf of Mrs Caines, submits that the word ‘livelihood’ is apt to
cover undrawn income and that the words ‘source of livelihood’ have the effect
that, even if the word ‘livelihood’, contrary to his contentions, does not
cover undrawn income, none the less the words ‘source of livelihood’ extend the
effect of that word so as to cover it.
I conclude
that the expression ‘source of livelihood’ means what the applicant spends or
consumes on her ordinary living expenses from time to time in money and/or kind
and that it does not include money that she has available to spend but does not
in fact spend for that purpose.
Applying that
meaning to the facts of this case, I would conclude that her ‘sources of
livelihood’ throughout the relevant period of seven years, ending with her
husband’s death, were in this order: firstly, her husband’s drawings from the
farm and, almost certainly, his private income; secondly, her private income;
and, thirdly, her drawings from the farms.
Even if no
regard is paid to any part of her husband’s resources in arriving at the source
of her aliquot share, say one-third of her and her husband’s joint living
expenses, her private income averaged throughout the eight-year period about
£2,000 a year, whereas her drawn profits averaged only about £1,500 a year.
Even without taking into account her husband’s resources therefore, it could
not be said that her drawings from the farm constituted the ‘principal source
of livelihood’, even if some allowance is made for benefits in kind.
In any event,
it would seem quite unreasonable to disregard her husband’s resources; and it
seems inherently improbable that her aliquot share of the living expenses was
no more than an average of about £3,000 per year.
But returning
to the meaning of the expression ‘source of livelihood’, I reject the meaning
for which Mr Pryor contends. I also reject his contentions about the effect of
the added words ‘source of’. It may be the case that one year’s undrawn profits
were a source of livelihood for the following year if the applicant had ever
drawn in one year profit that had accumulated in earlier years, but over the
period in question it is clear that Mrs Caines in this case did not ever do
that.
I conclude
that Mrs Caines’ drawings did not constitute her ‘principal source of
livelihood’ and I would also, on the facts found and for the reasons that I
have given, decide that she was ineligible on that account. But that is not the
precise question which I have been asked. I have already recited what that question
is and my answer to it, as will be seen from what I have just said, is in the
negative.
The third
question is: ‘Whether the expression ‘the holding or on an agricultural unit of
which the holding forms part’ as used in condition (b) of the definition of an
eligible person in section 18(2) . . . can properly be construed so as to
include land which did not at the date of the death of’ Mr Caines ‘form part of
the holding or of an agricultural unit of which the holding at that date formed
part.’
The facts material
to this point will already be clear from the facts that I have recited. I will
repeat them in this context in summary form as stated by the tribunal. They
are:
All of the
figures produced on behalf of
Mrs Caines
concerned her
income from farming for whatever happened to be the area farmed by the
partnership of which she was a member from time to time. Effectively therefore
the figures up to August 1 1981 included income derived from Stanbridge Farm as
well as Heath Farm and it was only after July 31 1981 that income derived from
Stanbridge Farm was excluded from the applicant’s share.
The contention
on behalf of the landlords, both in this court and before the tribunal, has
been that the position has to be examined as at the date of Mr Caines’ death
because eligibility can only be established if Mrs Caines can show that during
the requisite period she had derived her principal source of income either from
Heath
of the death of Mr Caines. Emphasis was placed on the word ‘forms’ in the
series of words ‘or on an agricultural unit of which the holding forms part’.
It was argued
that those words must be strictly construed by reference to the position as it
stood at the date of the death and that the applicant had produced no figures
supporting or distinguishing her income from Heath Farm alone, apart from the
figures relative to the short period of five and a half months from August 1
1981 until Mr Caines’ death, and that, accordingly, she had failed to establish
that her principal source of livelihood had been derived from Heath Farm.
The unit of
which Heath Farm formed part, at the date of death, consisted of Heath Farm —
the 15 acres comprised in Heath Farm for the purposes of this case — and Hurst
Farm, one of two much smaller farms which I have already mentioned. No separate
figures have been produced for this unit either and the applicant must
therefore fail on that account.
The
submissions made on Mrs Caines’ behalf, both in this court and before the
tribunal, were that the construction for which the landlords contend is too
narrow a construction of the statutory provision, and that it is commonly the
case that the size of an agricultural holding and its constitution undergo changes
during the course of the tenancy. Consequently it was argued below and here in
this court that the natural interpretation of the statute was to consider the
unit of which the relevant holding had from time to time during the seven-year
period formed part, accepting that this unit might change. The tribunal
accepted those contentions and decided that Mrs Caines was not to be
disqualified upon the grounds, which I have summarised, argued on behalf of the
landlords in this connection.
Mr Pryor in
this court summarised his submission in this way. He submitted that the words
‘or on an agricultural unit of which the holding forms part’ and, in
particular, the word ‘forms’ in that series of words constitute no more than a
descriptive or adjectival phrase which has no temporal significance at all. He
submits that to apply a literal construction to those words is unsatisfactory,
if not worse than unsatisfactory, because it involves looking for a single
moment of time at a unit in a context which extends over seven years.
He relies upon
a passage from the speech of Lord Fraser in Jackson v Hall [1980]
AC 854 at p 891. Before I come to that passage, I should say that that case
decided:
. . . . .
that on the true construction of section 18 of the Agriculture (Miscellaneous
Provisions) Act 1976 eligibility for succession to a deceased tenant’s tenancy
had to exist at the date of the tenant’s death and an applicant was precluded
from being an eligible person by section 18(2)(c) if at that date he was the
occupier of a commercial unit of agricultural land within the meaning of that
paragraph, and he could not subsequently become an eligible person by
thereafter divesting himself of his occupation . . . . (see the headnote at p
854).
Lord Fraser,
at p 891, said:
The whole of
section 18 seems to be defining and referring to a state of affairs existing at
or before the parent’s date of death. The scene is set by the opening words of
section 18(1) which are: ‘Where . . . the sole . . . tenant . . . . dies and is
survived by any of the following persons: . . .’. Plainly that is looking at
the date of death. It then defines ‘the following persons’ by their
relationship to the deceased, which obviously cannot change after his death.
Then in subsection (2) the definition of ‘eligible person,’ after referring
back to the family relationship, sets out the two economic qualifications that
I have already mentioned in relation to the Williamson question. The
qualification set out in paragraph (b) is necessarily dependent on events that
have occurred ‘in the seven years ending with the date of death . . . Nothing
occurring after the date of death can affect that qualification. The
qualification in paragraph (c) is that the person ‘is not’ the occupier of a
commercial unit, and the present tense must, I think, mean ‘is not at the date
of death.’ Any other meaning seems to me
hardly possible.
Mr
Langdon-Davies, however, relied on a passage from the judgment of Brandon LJ,
as he then was, in the Court of Appeal at p 866:
Thirdly, the
use of the present tense 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) is no more significant than the use of the
same tense in the phrase ‘he falls within paragraphs (a), to (d)’ in paragraph
(a), or in the phrase ‘agricultural unit of which the holding forms part’ in
paragraph (b). The latter phrase, despite the use of the present tense, must
surely relate to the time of death.
It is true, as
Mr Pryor pointed out, that the question before the court in that case was
whether the relevant point of time was the date of death of the previous tenant
or the later date of the hearing of his survivor’s application, and the court
was not considering the question whether the relevant point of time could go
back before the date of death. None the less, I respectfully adopt the last
sentence of the passage from the judgment of Brandon LJ which I have just
cited. Para (b) of the definition of ‘eligibility’ could well have ended with
the words ‘of which the unit had at any time during this period of seven years
formed part’.
I feel bound
to give effect to the expressed present tense unless there are compelling or
persuasive reasons of inconvenience or absurdity why I should not do so, and I
can find no such reasons.
Accordingly,
my answer to the third question is in the negative and I therefore allow this
appeal.
The appeal
was allowed with costs. Leave was given to appeal to the Court of Appeal.
