Agricultural holdings–Succession provisions of Agriculture (Miscellaneous Provisions) Act 1976–House of Lords settle controversy as to date for determining eligibility to apply for new tenancy after death of tenant–Two appeals (one under ‘leap-frogging’ procedure) decided together–Unanimous decision that eligibility is to be determined at the date of deceased tenant’s death–Applicant must, however, also be eligible at the date of the application to the agricultural land tribunal and (per Viscount Dilhorne) the date of the hearing–Eligibility cannot be achieved by procedure of divesting applicant’s interest in a ‘commercial unit’ between date of death and application–House of Lords by a majority (Lord Russell of Killowen dissenting) decide that a person is rendered ineligible if he is a joint occupier of a commercial unit at the date of death–Ineligibility not confined to sole occupiers–Jackson appeal from Court of Appeal allowed (thereby restoring decision of Sir Douglas Frank QC and the tribunal)– Williamson appeal dismissed (thereby affirming under ‘leap-frogging’ procedure the decision of Michael Kempster QC, sitting as a deputy High Court Judge)
In the first
of these appeals William Horner Hall and Geoffrey Alan Marr, the trustees of
Geoffrey Edwards Marr deceased, owners of Grange Farm, Keyingham, Humberside,
appealed against the decision of the Court of Appeal (1978) 249 EG 955, [1979]
1 EGLR 9 in favour of Graham Christopher Jackson. The Court of Appeal (Brandon
LJ dissenting) had held that Mr Jackson was eligible to apply for a tenancy of
the farm, notwithstanding the fact that, at the date of the deceased tenant’s
death, he was a joint occupier of another farm, White House Farm, which was a
‘commercial unit.’ In the second appeal
Lewis Williamson appealed against a decision of Michael Kempster QC (1979) 251
EG 955 in favour of the landlords, Peter Howard Thompson and James Montagu
Carpenter, of certain riverside land forming part of the Eardington estate. Mr
Kempster, sitting as a deputy judge of the Queen’s Bench Division, held that
the applicant was ineligible to apply for a new tenancy on the ground that at
the date of his father’s death the applicant was a joint occupier with his
brother of a commercial unit.
Leolin Price
QC and G O A Sebestyen (instructed by Collyer-Bristow, agents for Chambers,
Thomas & Williamson, of Hull) appeared on behalf of the appellant landlords
in the first appeal; E C Evans-Lombe QC and C Joseph (instructed by Warren,
Murton & Co, agents for Stamp, Jackson & Procter, of Hull) represented
the respondent, Graham Christopher Jackson. In the second appeal Derek Wood QC
and Miss J Moss (instructed by Ellis & Fairbairn, agents for Burges, Salmon
& Co, of Bristol) appeared on behalf of the appellant, Lewis Williamson;
Gavin Lightman and Mitchell Caller (instructed by Wedlake Bell, agents for
Ivens & Morton, of Kidderminster) represented the respondent landlords.
In his speech,
VISCOUNT DILHORNE said: Section 24(2)(g) of the Agricultural Holdings Act 1948
enabled a landlord of an agricultural holding to give notice to quit that
holding if the tenant had died within three months before the date of the
giving of the notice, and it was stated that the notice was given for that
reason. This provision was replaced by a provision that such a notice could
only be given where a person was the sole or sole surviving tenant under a contract
of tenancy immediately before his death (Agriculture (Miscellaneous Provisions)
Act 1976, section 16(1)).
Part II of
that Act made provision for succession on the death of the tenant of such a
holding. Section 18(1) provides that where the sole or sole surviving tenant
dies and is survived by any of the following persons:
(a) the wife or husband of the deceased.
(b) a brother or sister of the deceased.
(c) a child of the deceased.
(d) any person (not within (b) or (c)
above) who, in the case of any marriage to which the deceased was at any time a
party, was treated by the deceased as a child of the family in relation to that
marriage,
the following
provisions of that Part of the Act are to apply.
Section 20(1)
reads as follows:
Any eligible
person may within the relevant period apply to the Tribunal for a direction
entitling him to a tenancy of the holding.
‘Eligible
person’ is defined by section 18(2) as meaning, subject to subsection (3) of
that section (which does not apply in these cases), and without prejudice to
section 21:
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 within the meaning of Part II of the Agriculture Act 1967
or, if he is, occupies it as a licensee only.
Section 21
gave the tribunal discretion to treat a survivor as an eligible person even
though he was unable to show that condition (b) above was fully
satisfied. If he was able to show that it was satisfied to a material extent,
and in all the circumstances it appeared fair and reasonable for the applicant
to be able to apply for a direction entitling him to a tenancy of the holding,
the tribunal could allow him to apply. No such discretion is given to the
tribunal in relation to condition (c). If the applicant is the occupier
of a commercial unit as defined, he is not an eligible person and so is not
qualified to apply to the tribunal for such a direction.
On March 28
1977 Mr James William Jackson died. He was tenant of Grange Farm, Keyingham,
which he farmed with his two sons. Following upon his death notice to quit was
given and then his two sons, Mr Graham Christopher Jackson and Mr Martin James
Jackson, lodged an application for a direction entitling them to a tenancy of
that holding. At the opening
application.
Adjoining
Grange Farm lies White House Farm which had been farmed by the deceased and his
two sons in partnership. On September 19 1967 he had entered into a tenancy
agreement letting it to himself and his two sons on a yearly tenancy. White
House Farm was certified on August 19 1977 to be a commercial unit within the
meaning of Part II of the Agriculture Act 1967. ‘Commercial unit’ was defined
by section 40 of that Act as meaning:
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).
This Part of
the 1967 Act made provision for, inter alia, grants towards expenditure
incurred in securing amalgamations of farm land so as to form ‘an intermediate
unit’ (also defined in section 40) or a commercial unit. Such a unit may of
course provide full-time employment for a large number of people. The
definition states the minimum number for whom employment is to be provided for that
unit to be treated as commercial.
At the time of
Mr Jackson’s death Graham Christopher Jackson and his brother were in joint
occupation of White House Farm and it appears then to have been thought that he
was consequently ineligible, if he remained a joint occupier, for applying for
a direction entitling him to a tenancy of Grange Farm. On June 22 1977 he
assigned all his interests in White House Farm to his brother, and it was his
contention that, as he had ceased to be in occupation at the date of the
application, condition (c) did not render him ineligible to make the
application. The tribunal thought that the meaning of sections 18 and 20 was
plain and that the date that mattered in deciding whether an applicant was the
occupier of a commercial unit was the date of the death of the tenant of the
holding in respect of which the application was made. Mr Jackson appealed to
the High Court and Sir Douglas Frank, sitting as a deputy High Court judge,
dismissed his appeal on the ground that he had to be eligible at the date of
his father’s death. The Court of Appeal, however, held by a majority (Lord
Denning MR and Lawton LJ: Brandon LJ dissenting) that it sufficed that the
applicant should be eligible at the date of the application and at that of the
hearing. Throughout this litigation until this case came to this House it
appears to have been assumed that joint occupation of a commercial unit was a
bar to eligibility.
I now turn to
the facts of the other appeal. Mr George Williamson died on January 17 1968. He
was the tenant of land known as riverside land which formed part of the
Eardington estate. This land was part of an agricultural unit farmed by the two
sons of Mr Williamson. That agricultural unit excluding the riverside land was
a commercial unit within the meaning of Part II of the 1967 Act. Mr Lewis
Williamson, one of the sons, applied for a direction entitling him to a tenancy
of the riverside land. The agricultural land tribunal which heard his
application held that he was eligible to do so. On appeal Mr Kempster, sitting
as a deputy High Court judge, allowed the appeal, holding that a joint occupier
of a commercial unit is the occupier for the purposes of condition (c).
He was given leave to appeal directly to this House in the belief, that now appears
was erroneous, that in Jackson v Hall it had been decided, when
it was merely assumed, that joint occupation of a commercial unit was a bar to
eligibility. At the commencement of the hearing of these appeals, application
was made on behalf of Mr Jackson to take the point that he was not debarred by
joint occupation of the commercial unit from applying to the tribunal for a
direction. Leave to do so was granted.
So there are
two questions to be decided in these appeals. The first, common to both, may be
expressed thus:
Does
condition (c) render only a sole occupier of a commercial unit
ineligible.
and the second
thus:
If a joint
occupier of such a unit at the time of the death of the tenant of the holding
in respect of which a direction is sought is ineligible, can he make himself
eligible by divesting himself of that occupation before he applies for a
direction.
I propose to
consider the second question first. Lord Denning MR based his conclusion that a
person was eligible provided conditions (a) and (b) were
satisfied, if he was not the occupier of a commercial unit at the date of his
application and at the date of the hearing, primarily on the use of the present
tense in section 20. Lawton LJ based his conclusion to the like effect on the
ground that being a survivor was a continuing state, and on the absence in
condition (c) of any reference to the date of death. Brandon LJ, as I
have said, dissented. In my opinion Brandon LJ came to the right conclusion.
Section 20, which provides that any eligible person may apply within the
relevant period (in the majority of cases within three months beginning with
the day after the date of the death), to my mind gives no indication of when
eligibility must arise, though I agree with Lord Denning that the applicant
must be eligible both at the date of the application and at the date of the
hearing.
Section 18(1)
defines the persons who may satisfy condition (a). It provides that
‘Where . . . the . . . tenant of an agricultural holding dies and is ‘survived
by any of the following persons . . .’
This to my mind signifies that one has to determine who were the
survivors at the date of the death. True it is that those who fell within
paragraphs (a) to (d) of section 18(1) then, will remain within
that class as survivors of the deceased for the rest of their lives, but the
conjunction of the words ‘dies and is survived by’ seems to me a clear
indication that the point of time that has to be considered is the time of
death. Condition (b) states that the period to be considered in relation
to that condition ends at the date of the death, and it would I think be very
odd if condition (c) could be satisfied at a different time.
I entirely
agree with the conclusion reached by Brandon LJ and with his reasons. In my
view eligibility has to arise at the date of the death. The persons who are
then eligible can apply, though eligibility must continue to exist at the date
of the hearing and at the date of the application. I do not think that
Parliament can ever have intended that a person who was at the date of death
ineligible as the sole occupier of a commercial unit could bring himself later
within the class of eligible persons by divesting himself of that occupation.
So my answer to the second question I have posed is in the negative.
I now turn to
the first question, which is one of more difficulty. The answer to it depends
on the meaning to be given to the words ‘he is not the occupier.’ Do they mean the sole occupier? If that had been the intention of Parliament
it could easily have been expressed. On this construction great weight has to
be placed on the article ‘the.’ Or
should they be read as if instead of ‘the’ the word ‘an’ was there? So read a joint occupier would be ineligible.
If it was Parliament’s intention that he should be, why was ‘an’ not the word
used?
The argument
was advanced that the rules made by the Agricultural Land Tribunals (Succession
to Agricultural Tenancies) Order 1976 might be relied on as an aid to the
construction of the statute. Those rules provide that the applicant for a
direction must complete a form which requires him to give particulars of the
holding in respect of which the application is made, and paragraph 11 of the
form reads as follows:
(a) I occupy as owner-occupier/tenant/licensee
the following agricultural land [give particulars of land occupied,
including area]:–
(b) I do not occupy any other agricultural land.
The applicant
is told to strike out whichever of these two statements is inapplicable. The
‘any other agricultural land’
the application is made.
My Lords, I
have no hesitation in rejecting the contention that rules made in the exercise
of a statutory power can be relied on as an aid to the construction of a
statute. As Lawton LJ said in the Court of Appeal in the Jackson v Hall
appeal ‘The form cannot, of course, be a guide to the construction of section
18(2). Such value as it has lies only in showing what a draftsman, used to
looking closely at words, thought the ones used in section 18(2) meant.’
Our task is to
give effect to the intention of Parliament as revealed by the words of the
enactment. The difficulty is that the Act gives no clear indication as to
whether the intention was to exclude only sole occupiers or to exclude both
sole and joint occupiers, to exclude anyone in occupation of a commercial unit.
The Act shows that Parliament recognised that there might be a number of
persons who fell within paragraphs (a) to (d) of section 18(1)
and the Act makes provision for dealing with claims by individuals who are
eligible applicants, but no provision was made for a direction entitling two
applicants to a joint tenancy of a holding. It may be, one does not know, that
Parliament just overlooked the possibility that there might be joint ownership
of a commercial unit and so made no provision for that.
It is clear
from the terms of the Act that it made, and was intended to make, a further
encroachment on the rights of landlords of agricultural holdings. It gave a
person who came within section 18(a) to (d) and who could show
that he had derived his livelihood either entirely or principally from work on
the holding for the requisite period the right to apply for a direction
provided that he was not the occupier of a commercial unit. Whether the land
was a commercial unit does not depend on the number of persons who can gain
their livelihood from it. However many or few they may be, the test of whether
it is a commercial unit depends on the number of persons employed thereon. What
in my view Parliament has in effect enacted is that a survivor may apply if he
comes within section 18(2) and can satisfy condition (b), but that he
cannot do so if he already occupies a commercial unit which must I think be
taken to be a viable farm. If he does occupy such a unit, then Parliament has
not thought it right that a landlord should be deprived by the grant of a
direction of the advantages which may enure to him from vacant possession.
That is a
short and I hope not inaccurate summary of the Act, and in the light of it I
cannot think that Parliament intended to give each of two joint occupiers of a
commercial unit, which it may be is of such size and character as to provide
them with a good living, the right to apply for a direction entitling them to a
tenancy of the holding. To hold that only a sole occupier is barred, is I think
putting weight on the word ‘the’ which it does not bear. A person in joint
occupation of a farm if asked ‘do you occupy that ‘farm’ could not truthfully
answer ‘no.” A truthful answer would be
‘yes, I occupy it and I occupy it with someone else.’
My Lords, it
is to be regretted that this lengthy and no doubt expensive litigation has been
brought about by the inadequacy of the drafting of this Act. I do not find the
answer to this first question easy. My conclusion is that the words ‘he is not
the occupier’ is just another way of saying ‘he does ‘not occupy’,’ and so read
the result is that the applicant in each of these cases was ineligible to apply
for a direction.
For the
reasons I have stated, in my opinion the appeal of the appellants, Mr Hall and
Mr Marr in the Jackson v Hall appeal should be allowed with costs
here and below and in the case of Williamson v Thompson the
appeal should be dismissed with costs.
In the course
of a concurring speech, LORD FRASER, referring to the Jackson appeal
said: I should say that I regard the respondent’s act in assigning his interest
in White House Farm to his brother as perfectly genuine and legitimate. Sir Douglas
Frank regarded it as subterfuge, but with respect I do not agree with that
view. Nevertheless, I am of opinion that it cannot avail the respondent for the
purpose of this application. If a person in the position of the respondent is
not eligible at the date of his parent’s death, he cannot in my opinion acquire
eligibility thereafter. 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. Similarly the use of the present tense in section 20(2) in the phrase
‘the tribunal, if satisfied that the applicant is an eligible person, shall
determine whether he is in their opinion a suitable person’ must mean that the
applicant must be eligible and suitable also at the date of the tribunal’s
decision. Accordingly he may lose eligibility before that date. But it is
accepted that the applicant must have been eligible for at least some period
before the date of the decision. The respondent says that the period begins
with the date of his application to the tribunal, but for the reason I have
stated, I consider that it begins with the date of death.
A separate and
powerful reason why eligibility cannot be acquired after the date of death is
that otherwise it would be easy for a child of a deceased tenant to divest
himself of an interest in a commercial unit immediately after the parent’s
death and the condition in paragraph (c) would for practical purposes be
almost ineffective. He would have three months in which to acquire eligibility
and he might do so by divesting himself of the disqualifying interest. I do not
consider that Parliament can have intended to leave open such an obvious and
comparatively easy method of circumventing the requirement of paragraph (c).
In a speech
agreeing that eligibility must be present at the date of death, but dissenting
from the view that joint occupation of a commercial unit was sufficient to
exclude eligibility, LORD RUSSELL OF KILLOWEN said: The policy of this part of
the 1976 statute is to meet (for the first time) in a particular way the event
of the death of a tenant farmer, which death would otherwise give to the
landowner an unrestricted right to determine the tenancy. The particular way adopted
was in that event to give to a member of the deceased’s family a chance of
obtaining a tenancy of the holding against the will of the landowner, when that
member had derived his principal source of livelihood from his agricultural
work on the holding or on any agricultural unit including the holding. In
general this was a recognition of a family’s interest in a family-worked farm,
and no doubt it was thought to encourage good farming by the prospect of
succession on the death of the tenant. Section 18(2)(c) states a situation in
which it was thought proper to negative a right to apply for a new tenancy: and
that situation was related to an applicant’s ability to continue with security
of tenure to farm elsewhere, notwithstanding the loss of his principal
livelihood in farming the holding. To be eligible to apply he must (inter
alia) show that he satisfies the condition 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.’ It would obviously have been too stringent an
exclusion to relate the occupation to too small or otherwise unviable an area
of farming land. So the device was chosen of relating it
purpose, in connection with rationalisation of the farming industry by
encouraging the formation of sufficiently viable farm holdings. In the 1967 Act
”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).’ Now this definition was, as I have said,
originally for a wholly different purpose, and constitutes a minimum objective
yardstick for that purpose. But its form is to be expected to have been in the
mind of the draftsman of section 18(2)(c), and in construing that latter
provision and determining whether ‘the occupier’ is to be taken to indicate ‘an
occupier’ or ‘the sole occupier’ it is not I think without some significance
that the definition of commercial unit speaks of one individual occupier of the
agricultural unit.
In the present
case no doubt the appellant in joint occupation of the particular land with his
brother has ample opportunity for earning a good living in farming it without
any necessity to extend (or continue) his farming activities to or on the
holding of the deceased tenant. But this particularity of the case should not
lead your Lordships to lean in favour of exclusion from eligibility of a joint
occupier. In another case the applicant may be in joint occupation of an
agricultural unit only just within the definition of commercial unit, and with
more than one other.
Of course
there are many contexts in which the definite article is not used as an
indication of uniqueness: to say for example of X that he is the son of Y is
not to be taken as indicating that Y had no other son. Many examples may be
given in which the definite article means no more than would the indefinite
article: some of them in cases cited in this appeal. The arguments in this
appeal really rest on what is not said. On the one hand it is pointed
out that if the draftsman meant sole occupier he could have said it: and other
provisions of this part of the statute show that (in a different context) the
draftsman was aware of and used the word ‘sole.’ On the other hand if joint occupation were in
mind in section 18(2)(c) the question is why the draftsman selected the
definite article, which I take to point prima facie to singularity? He might have said ‘he is not an occupier’:
or ‘He is not in occupation of’: or ‘He does not occupy . . . or if he does,
occupies it as a licensee.’ Three
choices of language were readily available to make it plain that a joint
occupation was intended, and none were chosen.
This, as is
sometimes said, is a matter of impression: I conclude that the joint occupation
of the appellant does not deprive him of eligibility to apply for a tenancy of
his deceased father’s holding and I would allow this appeal.
LORD
EDMUND-DAVIES and LORD LANE agreed with the speeches of Viscount Dilhorne and
Lord Fraser.
The appeal in
the case of Jackson v Hall and Another was accordingly allowed and the appeal in the case
of Williamson v Thompson and Another dismissed.
