Agricultural holdings — Agriculture (Miscellaneous Provisions) Act 1976 — Succession provisions — Whether an application to an agricultural land tribunal under section 20 for a direction entitling the applicant to a tenancy was invalid because of a failure to give notice of the application to the landlord — Effect of section 20(14) of Act and Rule 4(1) of the rules in the schedule to the Agricultural Land Tribunals (Succession to Agricultural Tenancies) Order 1976 — No notice given to landlord on Form 3, although Form 1 had contained the statement that the applicant would notify the landlord — Landlord was in fact notified of the application by service upon her of a copy by the secretary of the tribunal — Tribunal had held that the failure to give a formal notice to the landlord was a fatal defect invalidating the application — Held on appeal that the tribunal were wrong — Section 20(14) merely required an order to be made containing the procedural steps mentioned in the order and the relevant rule, Rule 4(1), was a procedural rule failure to comply with which did not automatically invalidate an application — The tribunal had a discretion to extend time and not to regard as fatal a failure by the applicant to comply with the requirement to give the landlord formal notice of the application — The chairman had in addition the specific powers given in Rule 37 and Rule 38 of the ‘principal rules’ currently in Schedule 1 to the Agricultural Land Tribunals (Rules) Order 1978 to enlarge the time for taking any step and to disregard a failure to comply with the 1976 rules — Both appeals allowed.
These were two
appeals by case stated from decisions of the Agricultural Land Tribunal for the
Northern Area. The applicants in both cases were the same, Harold Kellett and
John Edward Kellett, who had made joint applications to the tribunal under
sections 20(1) and 21(2) of the Agriculture (Miscellaneous Provisions) Act 1976
for tenancies on the death of their father. The landlords, respondents to the
applications, were in the one case Noral Alexander and in the other Mary
Elizabeth Cady and Edith Margaret Ellershaw. As both cases raised the same
point the judge dealt with the first case for the purpose of the appeal.
R J Furber
(instructed by Boxall & Boxall, agents for Kendal & Fisher, of Dalton
in Furness) appeared on behalf of the appellants (applicants) in both cases; H
W P Eccles (instructed by Wedlake, Bell) represented the respondents.
Giving
judgment, WOOLF J said: There are before me two appeals, both by way of case
stated, under section 6(1) of the Agriculture (Miscellaneous Provisions) Act
1954 by the Agricultural Land Tribunal for the Northern Area.
For the
purposes of this appeal I do not propose to make any distinction between the
two appeals because the point which arises is identical on both appeals; but
for the facts I will refer to the papers in the matter of Kellett and Kellett v
Alexander. So everything that I have to say about that appeal is equally
applicable to the other appeal.
The question
which was posed by the tribunal at the end of the case was in these terms:
whether an applicant’s failure to give notice of his application to the
landlord is fatal, or whether the tribunal have a discretion to waive service
on the landlord in circumstances where the landlord is not prejudiced? In order to understand the question which has
been stated by the tribunal it is necessary to look at certain provisions of
the code of statutory provisions dealing with agricultural holdings. It is
convenient to start with the Agricultural Holdings (Notices to Quit) Act 1977.
Section 2 of
that Act contains restrictions on the operation of a notice to quit
agricultural holdings. The result of those restrictions is that the notice to
quit does not take effect unless the tribunal consents to its operation.
However, the restrictions do not apply to certain cases which are set out in
section 2(2). One of the cases so set out is Case G, which provides that they
shall not apply where:
There had
died within three months before the date of the giving of the notice to quit a
person who immediately before his death was the sole (or sole surviving) tenant
under the contract of tenancy, and it is stated in the notice that it is given
by reason of the matter aforesaid.
The exclusion
of what I will call the statutory protection provided by section 2 of the 1977
Act in such a case was modified by the provisions of the Agriculture
(Miscellaneous Provisions) Act 1976, which introduced a provision dealing with
succession on the death of a tenant.
Section 18(1)
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 . . .
then the
categories are set out
the following
provisions of . . . the Act . . . shall apply unless excluded by subsection (4)
of that subsection.
I do not need
to trouble, for the purposes of this case, with subsection (4) and I can
proceed to the subsequent sections of the Act starting with section 19, which
provides:
A notice to
quit the holding given to the tenant thereof by reason of the death of the
deceased and falling within
what was to
become Case G under the 1977 Act
shall not
have effect unless either
and these
words are important
(a) no application to become the tenant of the
holding is made under section 20 of this Act within the relevant period; or (b)
one or more such applications having been made within that period, either —
(i) none of
the applicants is determined by the Tribunal to be in their opinion a suitable
person to become the tenant of the holding; or
(ii) the Tribunal consent under section 22 of this
Act to the operation of the notice to quit.
I stress the
wording so far as the requirement of an application is concerned because it is
quite clear from that wording that, unless there is an application to become
the tenant of the holding under section 20 of the Act, the restriction on the
operation of the notice to quit in section 19 does not apply at all. 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.
Section 20(14)
provides:
Provision
shall be made by order under section 73(3) of the Agriculture Act 1947 . . . for
requiring any person making an application to such a tribunal under this or the
following section to give notice of the application to the landlord of the
agricultural holding to which the application relates and to take such steps as
the order may require for bringing the application to the notice of other
persons interested in the outcome of the application.
So far as
subsection (14) is concerned, it will be seen that it specifically provides
that there should be an order requiring any person making the application to
give notice of the application to the landlord. In this case, for reasons which
appear in the case stated, no notice of the application was in fact given to
the landlord.
Section 21
contains provisions which enable a person who is not a fully eligible person to
be treated as eligible; and section 22 provides an opportunity for the landlord
to obtain the tribunal’s consent to the operation of the notice to quit; and
that links up with the provisions of section 20(1) because section 20(1) enables
an eligible person who seeks a tenancy to apply for a direction entitling him
to it.
Section 22
enables the obverse application, by the landlord, to come before the tribunal
so that he can obtain the consent to the operation of the notice to quit notwithstanding
the fact that there is somebody who contends that they are entitled to the
benefit of the provisions contained in Part II of the Act of 1976 (which deals
with the provision for succession on death). As one would expect, there is a
provision which enables the two applications to be heard at the same time.
The specific
rules which were made governing the procedure for dealing with the applications
under Part II of the 1976 Act are the Agricultural Land Tribunals (Succession
to Agricultural Tenancies) Order 1976 (SI 1976 No. 2183). Rule 2 specifically
lays down that the ‘application to the tribunal under section 20 of the 1976
Act for a direction entitling the applicant to a tenancy . . . shall be made in
Form 1.’ That form is in the schedule to
the order and says, among other things, who the landlord of the holding is and,
in paragraph 19, sets out under the heading ‘The persons whom I shall notify of
this application . . . are: (a) The landlord of the holding whose name and
address are: . . .’
I draw
attention to the words ‘I shall notify’ which look to the future.
Rule 2(3)
says:
An
application made under this rule shall not be entertained by the tribunal if it
is not made within the relevant period.
and the
relevant period is, where the deceased died on or after January 1 1977, the
period of three months beginning with the day after the date of death.
Rule 2(3)
reflects the requirement of the Act, contained in section 20(1), that an
eligible person may within the relevant period apply to the tribunal for a
direction entitling him to a tenancy of the holding; the relevant period in the
rules and the Act are the same.
Rule 4(1) is
the rule which complies with the requirement contained in section 20(14) of the
Act. It provides:
An applicant
shall at the time of making his application serve notice of the application in
Form 3 on the landlord and on any person who, to the knowledge of the
applicant, has made or may be able to make an application under rule 2(1), and
shall inform the tribunal in his application of the name and address of every
person to be notified by him.
Again, it is
relevant to look at Form 3 because that form says, ‘I . . . hereby give you
notice that I applied on . . .’ and then there is to be inserted the date of
his application which seems to presuppose that when the form is completed the
application has already been made.
I made the
reference to Form 3 and to Form 1 to contrast the language in the forms with
the words of Rule 4(1), which state that the ‘applicant shall at the time of
making his application serve notice of the application in Form 3 on the
landlord.’ Quite clearly those words
have not to be applied absolutely literally. It would be impossible at the same
time as making the application to actually, there and then, give notice, and
what, it seems to me, is intended by the wording of Rule 4(1) is that, having
made the application, the applicant shall promptly give notice. What will be
compliance with that requirement to give notice promptly will have to be
considered in the circumstances of the particular case. Sometimes, exercising
reasonable diligence, a certain period will have to elapse before it is
possible for the notice to be given, but as long as the applicant concerned
acts with reasonable promptitude in the circumstances of the particular
application, the letter of that rule will be complied with.
In addition to
the specific rules there are what are described as principal rules which apply
to proceedings before tribunals generally. Those principal rules were linked to
the specific rules, to which I have just made reference, by Rule 19 of the
specific rules.
The current
principal rules are set out in the Agricultural Land Tribunals (Rules) Order
1978 (SI 1978 No. 259). Those rules replaced earlier rules and, in Schedule 2,
amended Rule 19 of the specific rules so that the rules of 1976 then read as
follows:
19(1) Rules 28
to 31 and 33 to 38 of the principal rules shall apply with the necessary
modifications to proceedings under these Rules as they apply to other proceedings
before the tribunal.
(2) For the
purposes of rules 31, 33 and 34 of the principal rules, any dismissal of an
application under these Rules shall be a decision, and all such decisions, and
the reasons for them, may be given in a single document at the conclusion of
the proceedings unless the Chairman otherwise decides.
Turning
therefore in particular to Rules 33 to 38 of the principal rules, we find that:
Rule 33 deals with references to the High Court; Rule 34 deals with the
modification of tribunals’ decisions; Rule 35 contains general rules as to
service; Rule 36 deals with substituted service; Rule 37 says ‘The time
appointed by or under these Rules for doing any act or taking any step in
connection with any proceedings may be extended by the chairman on such terms
and conditions, if any, as appear to him just’; Rule 38 says, ‘Any failure on
the part of any person to comply with the provisions of these Rules shall not
render the proceedings, or anything done in pursuance thereof, invalid unless the
chairman or the tribunal so direct.’
Having
referred to the relevant statutory provisions contained in the Acts and the
subordinate legislation, it is convenient to refer shortly to the case stated.
That recites the following facts:
The father of
the two applicants had died on April 2 1979 and the time by which the
applications under section 20(1) and section 21(2) had to be made was July 2
1979. The applicants made a joint application on June 27 1979 and, by letter
dated June 29 indicated that the applications were to be treated as joint; and
then the case goes on.
The
applications had contained a statement that the landlord had been notified that
the applications had been made but no notice in Form 3 had been served on the
landlord.
The recital in
the case that the applications had contained a statement that the landlord had
been notified is not entirely accurate, because the applications were in the
statutory form and, in accordance with the statutory form, they did not say
that the landlord had been notified but indicated that the landlord was someone
whom the applicant ‘shall notify of the application’.
The case goes
on to set out the contention of the landlord that the applications were invalid
on two counts; the first of which is not relevant to this appeal; the second
being that the landlord contended that the applications were not valid because
no notice in Form 3 had been served on the landlord as required by Rule 4(1) of
the 1976 rules.
In respect of
that contention the applicants conceded that, in the haste of compiling and
submitting the applications before the time expired, the requirement that Form
3 be served on the landlord had been overlooked, but they contended this was
merely a procedural fault which had not prejudiced the landlord who was
notified of the application by the service on her by the secretary to the
tribunal. There is no dispute that that in fact happened, there being a
provision in the rules which requires the secretary of the tribunal to notify
the landlord of the application. That was a requirement in addition to the
requirement placed upon the applicant to give notice as required by Rule 4(1).
The tribunal
decided that the failure to serve notice of the application on the landlord was
not a procedural error. They took the
they underline the word ‘Act’) that the applicants give notice of the
applications to their landlord; and the tribunal did not consider that the
discretion provided by the rules to waive the requirements of the rules could
be extended by the tribunal to waive a requirement contained in the Act. They
therefore found the failure to serve notice of the applications on the landlord
to be a fatal error and dismissed the applications. The tribunal considered,
therefore, that the consequence of the mistake which was made, in not giving
the notice required by Rule 4(1), was that the application failed in limine
and there was no jurisdiction in the tribunal to consider the application.
Before me the
applicants contend that this is a complete misinterpretation of the statutory
provisions. First of all, the very question framed by the tribunal seems to
underline the view of the tribunal that, because there was no notice given of
the application to the landlord by the applicants, this was a case where an
express requirement of the Act had been disobeyed by the applicants. I do not
read the provisions of section 20(14) in that way. The express requirement of
section 20(14) of the 1976 Act is to make an order which complies with the
terms of that subsection. The subsection itself does not set out any specific
provision as to giving notice. The form of notice required and the time within
which the notice had to be given is the requirement of the order made pursuant
to the subsection and therefore, in order to decide whether or not there is any
power to overcome the admitted failure to comply with Rule 4(1), does not
depend, in my view, on the terms of section 20(14) but on the terms of Rule
4(1) and the other rules which are relevant, construed in the light of the
provisions contained in section 20(14).
The position
has to be contrasted with that contained in the Act, which requires an
application to be made within the relevant period. That is a requirement of the
Act and it is conceded before me, and in my view rightly conceded, that if
there had been no application made here within the relevant time then this
would be a situation where in fact there would be no power for the tribunal to
consider the matter because an imperative provision of the Act had been
disobeyed.
The position
if no application had been made would be identical to that indicated by the
Court of Appeal in the case of Howard v Secretary of State for the
Environment reported inter alia in [1974] 1 All ER 644, as to the
requirement to make an application within the prescribed time. That conclusion
is equally applicable to the wording of the order of 1976 which reiterates the
requirement of the Act that an application should be made within the relevant
period. Therefore, so far as Rule 2(3) is concerned, which says that the
application shall not be entertained if it is not made within the relevant
period, I would readily come to the conclusion that that is a requirement which
cannot be waived by the tribunal, and that Rule 37 and Rule 38 have no
application. I do not think that on their normal reading those rules are
appropriate to deal with an application which fails in limine. Such an
application, which is made out of time, appears to be outside the express words
of Rule 37 and Rule 38, because until a proper application has been made there
are no proceedings to which those rules can apply. However, so far as the
failure to give notice is concerned, it is strongly argued on behalf of the
applicants that Rule 37 and Rule 38 should apply.
Before
considering Rule 37 and Rule 38 it is convenient to consider what would be the
situation assuming those principal rules were not ones which were relevant to a
failure to comply with Rule 4(1) of the 1976 Order. It is my view that looking
at that rule in its context it is the sort of procedural rule which you would
not normally expect to be regarded as an imperative requirement and normally,
even if there were no Rule 37 or 38, the approach to the interpretation of that
rule would be to regard it as one which, while it should be complied with, the
failure to comply with it would not necessarily be fatal to an application. It
would be a procedural matter which the tribunal as the master of its own
procedure would be entitled to take into account and decide according to the
relevant circumstances whether to regard it as something which should prevent
the application proceeding or not. Normally if there was no prejudice to the
other parties, the view of a tribunal would be that such a failure should not
be fatal.
It follows
from what I have said that section 20(14), which required such a rule, was
doing no more than indicating that it should be a procedural requirement that
notice of the application should be given, and placing a statutory obligation
upon those responsible for making the order to see that a procedural
requirement was included in the order.
The fact that
I have come to this conclusion about the terms of Rule 4(1) means that the
decision of the tribunal must be wrong, because if the tribunal had a
discretion to extend time and not to regard as fatal the failure to comply with
Rule 4(1), clearly the tribunal should have adopted a different approach from
that which they adopted at the hearing of this application.
It is,
however, still important to consider whether Rule 37 and Rule 38 of the
principal rules apply to this particular failure to comply with the
requirements of the 1976 Order. I did at the outset have some concern as to
whether Rule 37 and Rule 38 were applicable. It seems to me that it would be
possible to construe those rules as having a more limited ambit. The side note
to the amended Rule 19 contained in the schedule to the 1978 rules refers to
the application of principal rules relating to evidence, decisions, etc, and it
would be possible to limit those rules so that they did not apply to the giving
of notice to the initial application.
However,
although I had reservations about this matter I have been persuaded that both
Rule 37 and Rule 38 apply to the failure to give notice, and the proper
approach in this application for the tribunal to have adopted would be to
consider those rules in deciding whether to exercise a discretion to waive the
requirement of giving notice. If, as is my view, there existed a power to
extend time, then quite clearly that, in an appropriate case, would be
equivalent to a power to waive the requirement to give notice. It would have
been pointless of the tribunal, on the hearing of this application, to decide
that the time should be extended so that notice of the application should be
given there and then. Once the tribunal’s secretary had given notice of the
application, then any purpose in giving a second notice disappeared, and the more
satisfactory way of dealing with an extension of time was to waive the
requirement. Furthermore, if Rule 38 applies, then even without any specific
application being made under Rule 37, it was open to the tribunal to disregard
the failure to comply with the notice requirement and to treat the proceedings
as being valid notwithstanding its absence.
In practice,
of course, the application of Rule 37 and Rule 38 would probably not result in
a different consequence than if the position were one where Rule 37 and Rule 38
did not apply. The only distinction is that Rule 38 does say that it shall not
be invalid unless the chairman or the tribunal so directs. That merely
indicates that there has to be a consideration by the tribunal of the issues as
to validity, and the fact that Rule 38 is worded in that way will not have any
material effect in practice.
Accordingly,
it follows that this appeal, and the appeal in the second case, will be allowed
and the question which is posed by the tribunal will be answered by saying that
the applicants’ failure to give notice to the landlord is not fatal and the
tribunal have a discretion to waive service on the landlord in an appropriate
case.
The appeals
were allowed with costs in the High Court. The costs of the previous hearing
before the tribunal were reserved to the tribunal to decide.
