1 Consolidation and amendment

1.18 The 1984 Act was the last in a series of amending statutes passed since the last consolidating Act in 1948. The major reforms introduced by the 1984 Act were grafted onto the principal provisions in the earlier legislation, causing considerable problems of cross-referencing and interpretation when handling the primary legislation applicable to agricultural holdings.

(i)It had previously been uncertain whether agreements contemplating both grazing and mowing for a period less than a year were outside the protection of the Act, as are grazing agreements and mowing agreements simpliciter. It is clear that all seasonal lettings of grassland were intended to be outside the security of tenure provisions, and section 2 of the Act has been amended accordingly.¹⁸

(ii)A further anomaly arose where a sub-tenant carried out works of provision or alteration of fixed equipment. The mesne landlord is liable to repay the cost of the work less any grant aid received by the subtenant. The same requirements did not formerly apply, however, between the mesne landlord and freehold owner, so that the latter may have been liable to pay compensation on termination of the mesne tenancy without such aid being taken into account. The 1986 Act therefore introduced an amendment to ensure that grants made toward such work were taken into account between a tenant’s immediate and superior landlord.¹⁹

(iii)It was also previously unclear whether sums agreed to be paid on termination of tenancy could be recovered in the same way as those awarded by an arbitrator.

(iv)Provisions were also introduced to ensure that the power of limited owners extend to all matters covered by the Act, and that the special rules as to service of notices cover all notices required under the legislation.²¹

(v)Despite the thorough review initiated by the Law Commission, a number of anomalies in the legislation remain. So, for instance, a fixed term granted for more than one but less than two years is not converted by the Act into a protected tenancy.²² It is by no means clear, however, whether such a tenancy is outside the 1986 Act altogether (ie, is not an ‘agricultural holding’) or is merely outside the security of tenure provisions. Similarly, although the Act gives a tenant the statutory right to remove fixtures and fittings,²³ it is by no means clear whether contracting out of this right is permissible.²⁴ In the same way, it remains unclear whether a tenant can contract out of his right to claim compensation for long-term improvements made to the holding.²⁵ It is to be regretted that these long-standing anomalies were not addressed by either the 1984 legislation or the Law Commission’s study prior to consolidation.

1.19 The process of statutory development did not stop with the 1986 consolidation, masterly though the latter was. The Agricultural Holdings (Amendment) Act 1990, a private measure sponsored by the NFU, was introduced to protect the security of tenure of tenants diversifying into non-agricultural activities. This proved necessary after the Court of Appeal had ruled in Bell v McCubbin²⁶ that a landlord could serve an effective notice to quit if he wanted to put the land to the same non-agricultural use himself – as no change of use was involved this would be a proposed non-agricultural user not requiring planning permission, and within Case B to Sch 3 of the 1986 Act. The 1990 Act remodelled Case B to remove this anomaly and clarify the law governing re-possession of farmland for non-agricultural user.²⁷