Milk quotas — Successful applications in two cases by farmers for judicial review to quash decisions of Dairy Produce Quota Tribunal for England and Wales — Two brothers, one on his own and one jointly with wife, lodged claims before the prescribed date for a share in their region’s reserve quota under the ‘exceptional hardship provisions’ in the Dairy Produce Quotas Regulations — The applicants in each case had purchased farms in 1984 but were not producing milk on these farms during the year ending March 31 1985 (the end of the first year of the quota system) — The two brothers were, however, at all material times in partnership with their father in another farm, which was an active dairy farm to which a primary quota attached — The quota tribunal rejected the applicants’ claims on the ground that no actual dairy farming was being carried out in the year ending March 31 1985 on either of the newly purchased farms — Tribunal considered that registration under the Dairy Produce Quotas Regulations was confined to producers and intending producers who were in occupation of holdings before the above date and selling or delivering dairy produce therefrom — Held by Macpherson J that it was arguable that the present claimants were ‘producing’ as they were part of a partnership on the father’s farm where the main occupation was dairy farming — If this point were accepted the applicants could contend that under the regulations they were persons intending to go into dairy business on the new farms — These points, together with the question of ‘exceptional hardship’, were matters for consideration by the tribunal — The tribunal’s present decisions seemed to impose a cut-off date and to be more restrictive than the regulations envisaged — The decisions would be quashed and the cases remitted for fresh consideration by a differently constituted tribunal
These were
applications for judicial review by Ian Atkinson, of Pond Farm, and David and
Maureen Atkinson, of Friar Hill Farm, both in Cumbria, challenging the
rejection by the Dairy Produce Quota Tribunal of the applicants’ claims for a
share in the regional wholesale reserve of quota under the ‘exceptional
hardship’ provisions. The respondents were the tribunal and the Minister of
Agriculture, Fisheries and Food.
Paul Morgan
(instructed by Monro Pennefather & Co, agents for Little & Shepherd, of
Penrith, Cumbria) appeared on behalf of the applicants; J Holdsworth
(instructed by the Solicitor, Ministry of Agriculture, Fisheries and Food)
represented both respondents.
Giving
judgment, MACPHERSON J said: These applications succeed.
The combined
effect of two sets of European Community Council Regulations for 1984, nos 856
and 857, and one set of United Kingdom Regulations, no 1047 of 1984,* is to
provide a scheme of dairy produce quotas which have governed farmers in the
United Kingdom as from July 24 1984.
*Editor’s
note: Dairy Produce Quotas Regulations 1984 (SI 1984 no 1047).
This scheme is
part of the implementation of the common agricultural policy of the EEC. The
days when a man could buy 2 acres and a cow and compete at will in milk
production are long gone, and farmers who wish to be dairy farmers are now
beset by complicated and restrictive regulations.
In this case
two brothers, one on his own and one with his wife, bought farms in Cumbria.
Ian Atkinson bought Pond Farm by contract dated March 20 1984 and completed
that purchase on April
October 20 1983 and completed on February 2 1984.
Both brothers
were, at all relevant times, partners with their father Frank in an active
dairy farm called Sleetbeck Farm. Sleetbeck received a primary quota under the
regulations. There is no need to expand upon that shorthand version of the
process laid down by the regulations and carried into effect in respect of that
farm. We have explored the regulations today in court.
These cases
concern the two brothers’ claims made in time and before the prescribed date
(which was August 28 1984) for a share in their region’s regional wholesale
reserve of quota under the ‘exceptional hardship provisions’ set out in paras
16 and 17 of Part II of Schedule 2 to the United Kingdom Regulations.
These claims
were rejected by the tribunal on the second hearing on March 14 1985, by which
date no actual dairy farming was being performed on either of the two newly
bought farms.
Originally, on
November 2 1984, one of the chairmen of the tribunal directed an adjournment
and gave a warning, which may well be one that should be heeded, as to the
rearrangment of the farming activities of the three partners which was to take
place upon the retirement of father Frank. Those matters of fact and intention
as to the future have not been fully canvassed or, of course, resolved here and
will be matters for future consideration, so that I say no more now about that
particular aspect of the case.
When the
matter was finally disposed of by a tribunal headed by a Mr Saxby, he, Mr
Saxby, gave the tribunal’s reasons for refusing the claims as follows: ‘After
considering the evidence presented the tribunal concludes that Mr I R Atkinson’
(and Mr D W and Mrs M Atkinson in the other case) ‘will not be producing and
selling or delivering milk from Pond Farm’ (or alternatively Friar Hill Farm)
‘before the end of the first quota year on March 31 1985.’
Para 3 said:
The Tribunal
considers that registration of Dairy Produce Quotas under the Dairy Produce
Quotas Regulations 1984 is confined to producers and intending producers of
milk who are in occupation of holdings before March 31 1985 and producing and
selling or delivering dairy produce therefrom. Accordingly although Mr I R
Atkinson
or Mr and Mrs
Atkinson in the other case
may suffer
hardship in future years if he is unable to obtain a quota, the Tribunal has no
alternative but to reject the present claim.
When this
matter was pursued to this court, leave having been given in each case, Mr
Saxby said in his affidavit as follows:
I have read a
copy of the affidavit of the applicant herein. There was no ‘general directive’
that Tribunals should not grant any new quota. There is no power in Tribunals
to create or to grant new quota where none exists. What I had hoped to convey
to the applicants was that there was a finite amount of quota to be
apportioned, and that if any further quota was allocated to them, then another
farmer would lose quota. This was the delicate balancing exercise which the
Tribunals had to carry out.
Quota applies
to each period of one year which, so far as was here material, expires on March
31 1985. No quota was appropriate up to March 31 1985 because the appellants
were not intending to produce milk until after that date. As no quota was
appropriate then, it could not possibly be fair or reasonable to consider some
future date when hardship might be suffered.
To decide
otherwise would mean that the limited amount of quota which was available would
have to be ‘stored’ in case farmers wished in future to start milk production.
In the meantime capable producers would not be able to produce milk because
their quota would be unrealistically reduced.
Mr Morgan
submits — and this is simply a much abbreviated summary of his helpful argument
— that the claimants feel disquieted, since there is no mention of any
‘balancing exercise’ or consideration of their cases as to ‘exceptional
hardship’ in Mr Saxby’s actual written reasons.
Furthermore,
Mr Morgan argues that there is not and should not be any such rigid cut-off
date as the reasons actually seem to impose.
Mr Holdsworth
accepts that the lack of reference to the ‘balancing exercise’ in the reasons
is unfortunate, but he says that no purpose could be served by sending the case
back for reconsideration since, first, each applicant is not a ‘producer’
within the meaning of the regulations read as a whole and, second, there can be
no quota for any claimant who was not actually in the business of dairying on
the land the subject-matter of the claim by March 31 1985, which was the end of
the first year of the quota system.
In my
judgment, it is certainly arguable that each claimant in these two cases is a
‘producer’ within the regulations, since each is a part of a partnership whose
main occupation is in fact dairy farming at Sleetbeck. If this point is to be
pursued, then it can be taken fully and again at the tribunal and I say no more
to prejudge the position there. That question, like the others, will, as all
agree, remain open for argument and for resolution.
Second, as Mr
Morgan points out, once a claimant is a ‘producer’ and thus over the first
hurdle, para 17 of Part II of Schedule 2 to the United Kingdom regulations
envisages that such a person who has entered into a ‘relevant transaction’ may,
at that date and thereafter, be a person intending to go into business
on new land the subject-matter of that transaction: see para 17(3)(b). And,
says Mr Morgan, no cut-off date is provided by the regulations or by any other
legislation which should bar claimants in the position of these claimants from
their claim.
In my
judgment, there is substance in these points and these questions are also open
for resolution and consideration at the tribunal in the light of all the facts.
In addition,
of course, the whole question of the claimants’ alleged ‘exceptional hardship’
will also be argued, and Mr Morgan realistically accepts that the claimants do
not have a straightforward or easy task by any means, since the burden is upon
them in the light of the facts to establish that they should be allocated part
of the reserve. Into this equation will come all the future plans and
reorganisation of the partnership and the dairying business carried on at
Sleetbeck and the plans for the two new farms.
In so far as
other farmers and other holders of quotas may be affected by any fresh
decision, it should also be noted that at the new hearing it will be incumbent
upon the applicants to establish that it is fair and reasonable that they
should be allocated wholesale quota as a result of their ‘exceptional hardship’
claims, and by para 17(3)(d) it will be incumbent upon them in the first place
to prove that they have suffered or will suffer exceptional hardship in
comparison with producers in general. So the matter will be at large and will
be for the tribunal to resolve.
In all the
circumstances I am satisfied that this case has, upon the face of the decision,
the appearance of having been cut off short, and I am also satisfied that the
applicants could rightly believe that they were being unlawfully restricted in
making their claims, since the only express time-limit imposed by the
regulations is that which sets out the date by which the claims should be made.
Yet the decision, as it stands, seems to restrict them more than the law
provides that they should be restricted.
In the end
these proceedings may bring the applicants no comfort, but I can understand
their present disquiet and believe that the matter should be resolved by an
order based upon grounds 1 and 2 of the relief sought in each case, and by an
order that the present decisions should both be quashed and that the matter
should be reheard by a differently constituted tribunal. I stress that this is
no reflection upon Mr Saxby and the other members of his tribunal but simply a
decision which reflects my own disquiet that the matter may not have been fully
enough argued and may have been wrongly resolved in a very difficult field of
law.
All the
arguments put forward today will be available to both sides should the
claimants be advised to proceed to a second bite at this problematical cherry.
Applications
granted, with costs in favour of applicants in each case against the Minister of
Agriculture, Fisheries and Food. Decisions quashed and cases remitted to be
reheard by a differently constituted tribunal.
