Saul v Norfolk County Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE |
| Judgment Date | 21 March 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0321-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 84/0127 |
| Date | 21 March 1984 |
[1984] EWCA Civ J0321-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE McNEILL
Royal Courts of Justice
Lord Justice Lawton
Lord Justice Slade
Lord Justice Browne-Wilkinson
84/0127
MR K.H.T. SCKEEMANN Q.C. and MR P.L. HAMLIN, instructed by Messrs Sharpe Pritchard & Co. (Agents for T.D.W. Molander Esq. of Norwich), appeared for the Appellants (Plaintiffs).
MR D.A. WOOD Q.C. and MR SEDDON CRIPPS, instructed by Messrs Nicholson, Cadge & Gilbert (Lowestoft), appeared for the Respondent (Defendant).
This is an appeal by the Norfolk County Council from a judgment of Mr Justice McNeill given on 13th July 1983. It raises a question as to the applicability of the succession provisions contained in the Agriculture (Miscellaneous Provisions) Act 1976 ("the 1976 Act") to a tenancy of a smallholding. We have been told that its outcome will be of importance to a number of smallholding authorities throughout this country.
By his judgment the judge allowed the appeal of the respondent, Mr Saul, by way of case stated from a decision of the Agricultural Land Tribunal ( East Area) of 10th March 1983, and held that the tribunal had jurisdiction to entertain Mr Saul's application for a direction entitling him to a tenancy of an agricultural holding known as Clinks Farm, Toft Monks, Beccles, Suffolk, pursuant to section 20(1) of the 1976 Act. The judge also referred the matter back to the tribunal for their decision.
The facts can be shortly stated. Mr Saul's father became a tenant of the holding by virtue of a written agreement dated 9th April 1965. He died on 21st January 1982. The appellant council are, and have at all material times been, the landlords. As a smallholding authority, they have held the farm for the purposes of smallholdings within the meaning of the legislation relating to smallholdings. In May 1982 Mr Saul applied to the Agricultural Land Tribunal for a direction entitling him to a tenancy of the holding pursuant to section 20(1) of the 1976 Act. His claim was based on the provisions of section 18 and the succeeding sections contained in Part II of that Act which introduced a new scheme for family succession on the death of the tenant of an agricultural holding.
Section 20(1) of the 1976 Act gives any "eligible person", as defined by the Act, the right within the relevant period to "apply to the Tribunal for a direction entitling him to a tenancy of the holding." So far as material, section 18 reads as follows: "(1) 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:—..…(c) a child of the deceased;..…the following sections of this Part of this Act (except sections 20(14) and 23(8), which are of general application) shall apply unless excluded by subsection (4) below."
Section 18(2) contains a definition of "eligible person". Under this definition a child of a deceased tenant of the holding will qualify if he satisfies a number of stated conditions—(a), (b) and (c). Condition (b) is that: "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".
Section 18(3) somewhat relaxes condition (b) in a case where a survivor of the deceased during the relevant period has been attending a full-time course at an establishment of further education. However, section 18(4) contains provisions which have the effect of rendering the succession provisions of Part II inapplicable in certain stated circumstances. So far as material for present purposes, it provides: "The following sections of this Part of this Act shall not apply—..…(f) if the holding consists of land held by a smallholdings authority or the Minister for the purposes of smallholdings within the meaning of Part III of the Agriculture Act 1970, and the tenancy was granted by them or him in pursuance of the said Part III".
After Mr Saul's application had been made, the matter came before the tribunal on a preliminary issue raised by the council as to whether or not the provisions of section 18(4)(f) disqualified Mr Saul from making an application under section 20(1).
Reverting to the words of section 18(4)(f), it is common ground that, on the facts, "the holding consists of land held by a smallholdings authority…for the purposes of smallholdings within the meaning of Part III of the Agriculture Act 1970, and the tenancy (of 9th April 1965) was granted by them". The whole issue on this appeal is whether that tenancy was granted "in pursuance of the said Part III" within the meaning of that phrase as used in section 18(4)(f). The learned judge, reversing the decision of the tribunal, held that it was not, and accordingly Mr Saul is not disqualified from making his application. The council now appeals from his decision.
At this point it is necessary to refer to the legislation relating to smallholdings which goes back to the last century. Its purpose has not been to create a special category of agricultural tenants: it is, we think, common ground that, broadly, its purpose has always been to increase the supply of smallholdings available for letting to suitable persons who wish to become farmers on their own account, but might not otherwise be in a financial position to do so. In this century there have been three principal batches of relevant legislation. The first was to be found in the Small Holdings and Allotments Acts 1908 to 1931, which gave local authorities certain powers to acquire land for the purpose of providing smallholdings and thereafter to let and sell it. The second was to be found in Part IV of the Agriculture Act 1947 ("the 1947 Act") which, with certain savings and exceptions, repealed the 1908 to 1931 Acts. Section 47(1), for the express purpose of affording to persons with agricultural experience an opportunity of becoming farmers on their own account, imposed a duty on county councils to provide smallholdings for letting to such persons. Section 52(1) stated: "Smallholdings provided by a smallholdings authority shall be let to the persons by whom the smallholdings are to be farmed in accordance with the following provisions of this Part of this Act: Provided that nothing in this section shall affect any letting in force at the commencement of this Part of this Act." The tenancy granted to Mr Saul's father in 1965 was granted in pursuance of Part IV of the 1947 Act.
Once the tenant of a smallholding has acquired his tenancy, he is, with certain exceptions but in most respects, in the same position as any other tenant of agricultural land. Thus, since the time when Part III of the 1947 Act introduced provisions designed to give security of tenure to the tenants of agricultural land and these provisions were replaced by the Agricultural Holdings Act 1948, tenants of smallholdings have enjoyed the benefit of the protection given by those Acts. However, neither of these two Acts conferred general rights of succession on survivors of a deceased tenant.
There then followed the Agriculture Act 1970 which (by section 113(5) and Part III of Schedule 5) repealed almost the whole of Part IV of the 1947 Act and replaced it with a large number of sections relating to smallholdings, which are contained in Part III of the 1970 Act. Though it is only necessary to refer to a few of its specific provisions, we think that the council is correct in submitting that the 1970 Act set out a new and comprehensive statutory scheme for the acquisition and management of smallholdings. Section 44 contained provisions empowering the letting of land held by a smallholdings authority for the purposes of smallholdings. Section 64(1) provided that the transitional provisions contained in Schedule 3 to the Act should have effect.
Schedule 3, which was headed "Transitional Provisions for Part III", so far as material read as follows. Paragraph 1 stated: "In this Schedule 'the repeal' means the repeal by this Act of the enactments specified in Part III of Schedule 5 thereto, and 'the repealed enactments' means the enactments so specified." We pause to mention that "the repealed enactments", with a very few exceptions, included all those provisions of the 1908 to 1931 Acts and the 1947 Act relating to smallholdings which were still in force.
Paragraph 2 stated: "Any land which immediately before the commencement of Part III of this Act is held by a smallholdings authority for the purposes of smallholdings shall, notwithstanding the repeal, continue to be held by that authority for the purposes of smallholdings, subject to any power exercisable by the authority by virtue of any enactment to appropriate or dispose of it for other purposes."
Paragraph 3, which echoed the proviso to section 52(1) of the 1947 Act, stated: "The repeal shall not affect the validity of any letting effected before the commencement of Part III of this Act."
Paragraph 9, which is of special significance for the purpose of the present appeal, stated: "Without prejudice to the preceding provisions of this Schedule, in so far as any agreement made, record, map or plan compiled and kept, or other thing done by virtue of any of the repealed enactments could have been made, compiled and kept or done by virtue of a corresponding provision of Part III of this Act, it shall not be invalidated by the repeal but shall...
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