Agriculture (Miscellaneous Provisions) Act 1976, section 18(2)–Succession on death of tenant–Eligibility to apply for tenancy–Application to quash decision of tribunal holding applicant ineligible on the ground that he was the occupier of a commercial unit within the meaning of Part II of Agriculture Act 1967–Definition of commercial unit in section 40(2) of 1967 Act framed by reference to ‘the opinion of the appropriate minister’–Tribunal in present case erred in law because they asked themselves the wrong question–They asked whether the land occupied by the applicant was in fact a commercial unit in the sense defined in the 1967 Act–The correct question was whether it was such a unit in the opinion of the Minister of Agriculture–Evidence by ministry officer that the land was not a commercial unit in the opinion of the minister–Order of certiorari granted to quash tribunal’s decision–Case remitted to a differently constituted tribunal
This was an
application to the Divisional Court by John Hughes for an order of certiorari
to quash a decision of the Agricultural Land Tribunal (Wales). The tribunal had
held that the applicant was not eligible to apply under section 20 of the
Agriculture (Miscellaneous Provisions) Act 1976 for a direction entitling him
to a tenancy of land forming part of Park Lodge, Anglesey. The tribunal’s
decision was on the ground that the applicant was the occupier of a commercial
unit of agricultural land as defined in section 18(2) of the 1976 Act
incorporating the definition in section 40(2) of the Agriculture Act 1967.
R Havery QC
and G Stoker (instructed by Ellis & Fairbairn) appeared on behalf of the
applicant John Hughes; J M Rogers QC and J M H Lee (instructed by R
Gordon-Roberts & Co, of Llangefni) represented the respondent landlord,
Thomas Hywel Jones.
Giving
judgment, DONALDSON LJ said: This is an application for an order of certiorari
brought on behalf of Mr John Hughes to quash a decision of the Agricultural
Land Tribunal (Wales) given on September 26 1977. That tribunal held that the
applicant was not entitled to a certificate of entitlement under section 20(5)
of the Agriculture (Miscellaneous Provisions) Act 1976. Such a certificate
would have entitled him to a tenancy of land forming part of Park Lodge in Anglesey.
Eligibility,
which was the issue which the tribunal had to consider, is defined in section
18(2) of the Agriculture (Miscellaneous Provisions) Act 1976. That section
provides: ”eligible person’ means (subject to subsection (3) below and without
prejudice to section 21 of this Act) 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’ . . . I need not set out those subsections. They
are concerned with the relationship to the deceased, and it is common ground
that Mr Hughes was the son of the deceased tenant of the holding.
Subparagraph
(b) reads as follows:
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.
Again it is accepted
that Mr Hughes is qualified under that paragraph.
Subparagraph
(c) reads:
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.
That was the
issue before the tribunal. Was Mr Hughes or was he not the occupier of a
commercial unit of agricultural land?
The tribunal held that Mr Hughes was not eligible because he was the
occupier of a commercial unit of agricultural land.
As Mr Rogers very
helpfully and correctly submitted in his argument, the policy of the Act is to
grant eligibility to those who have farmed land for a minimum period in
association with a deceased tenant and who, if they were not granted a tenancy,
would be left either with nothing to farm or with something which was less than
a commercial unit of agricultural land.
I turn to the
definition of ‘commercial unit,’ as I am instructed to do by section 18. This
definition is contained in section 40(2) of the Agriculture Act 1967, and is 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 tribunal
applied its mind to the issue of whether the other land, which is the holding
Tre’r Gof Uchaf, was a commercial unit in the sense that when farmed under
reasonably skilled management it was capable of providing full-time employment
for an individual occupying it etc. What is said on behalf of the applicant is
that the tribunal erred in applying its mind to that question. The question to
which it should have applied its mind was whether Tre’r Gof Uchaf was a
commercial unit within the opinion of the appropriate minister.
There was
evidence before the tribunal given by Mr Hawksworth, a civil servant employed
in the Ministry of Agriculture, that this land was not a commercial unit in the
opinion of the minister. The tribunal thought that Mr Hawksworth and the
minister were wrong and that it was a commercial unit, and that was the basis
of their decision.
Mr Rogers
submits that the tribunal’s construction of the section was correct, and his
argument is based upon the proposition that the whole philosophy of the
Agriculture (Miscellaneous Provisions) Act 1976, which is concerned with rights
as between individuals, is that they shall be determined by the agricultural
land tribunal. On the other hand, he says that the 1967 Act is concerned with
administrative matters and it is appropriate for the purposes of that Act that
it shall be the minister rather than the tribunal who should decide what is or
what is not a commercial unit.
That may well
be right in the sense that Parliament could have adopted that policy. But, in
my judgment, it is plain beyond argument that Parliament in the 1976 Act
determined to incorporate section 40 from the 1967 Act and to incorporate the
whole of the definition of ‘commercial unit’ contained in that section and not
the definition with the omission of the words ‘which in the opinion of the
appropriate Minister is capable’ etc. It follows that, in my judgment, the tribunal
erred in law and the order asked for should be granted with whatever are the
consequences of giving such an order.
BRISTOW J
agreed.
Order of
certiorari granted to quash the tribunal’s decision and case remitted to be
heard by a differently constituted tribunal. The applicant was awarded the
costs of the application for leave and of the substantive application against
the respondent landlord.
