2 Ministry consents
5.62 Under the 1986 Act, an agreement which was the subject of approval from the Ministry, prior to grant, did not take effect as a tenancy from year on year on expiry. Approval could be granted either under s 2(1) or s 5 of the 1986 Act.
Ministry approval was available for lettings in a variety or short-term or transitional situations eg, where redevelopment was in prospect or where the landlord was planning the amalgamation or regrouping of holdings on an estate.159(a)Consent under section 2
5.63 By virtue of s 2(1), an agreement did not take effect as a tenancy from year to year under that provision if the Minister approved it before it was entered into. Section 2 consent is available for any grant by way of a tenancy less than from year to year, and for the grant of a licence of any duration. As the Ministry’s powers to grant consent ceased on 1 September 1995, there will be no tenancies granted pursuant to this provision still in existence: however, it is theoretically possible that a licence granted pursuant to s 2 could still subsist. The Ministry’s consent need not have been to the particular agreement in question – it could be granted to named local authorities or government departments,160 or named landlords, or limited to the subsequent letting of identified parcels of agricultural land.
5.64 The Minister need not have concerned himself with the particular terms of the proposed tenancy, or even the manner of its creation. Consent could also apply to an implied tenancy, eg where a tenant held over in possession and paid rent.161 Where Ministry consent was granted for the creation of a licence, it is essential that the subsequent agreement (on its proper construction) did not grant exclusive possession of the land to the licensee. In Ashdale Land and Property Co Ltd v Manners162 the Court construed a ‘licence’ agreement which gave the licensee a right of exclusive use of the land, without interruption from the licensor (or people claiming through him), as a tenancy – and thus outside the terms of the Ministry consent.
Following the application of the Street v Mountford163 principles in this case, s 2 consent would only appear to have been appropriate for licenses that were clearly non-exclusive.1645.65 Consent under s 2(1) was effective from the moment of signature by the Minister and, once obtained, could not act retrospectively to validate an agreement already entered into. The letting must have been approved prior to grant, the onus being on the landlord to prove that any conditions on approval were met. So, in Bedfordshire County Council v Clarke165 a protected tenancy arose where Ministry approval and the tenant’s signed acceptance of the tenancy both bore the same date. The landlord was unable to prove that the Minister’s consent pre-dated the tenant’s acceptance in point of time, and so the consent could not apply to exclude the operation of s 2 of the 1986 Act.
(b)Consent under section 5166
5.66 Section 5 provided for Ministry approval to be available for fixed term tenancies of between two and five years. As the Ministers powers to approve such tenancies ceased on 1 September 1995, any such tenancies will now be spent: there may, however, be a question as to the status of the tenant’s continued occupancy if s/he has held over in possession since then, and to which the following will have relevance.
5.67 If Ministry consent was obtained, the tenancy would not then continue on expiry as a tenancy from year to year. The formalities for obtaining consent differed from those applicable under s 2(1) (above), and were in some respects more stringent:
(i)the parties must have agreed that s 3 was not to apply to the tenancy.
(ii)Landlord and tenant must have made a joint application to the Ministry for approval of the agreement. cf under s 2(1) application could be made by either party, the participation of the other being unnecessary.
(iii)The consent took effect upon its being notified to both parties.
cf. under s 2(1) consent took effect upon grant, irrespective of notification to the parties themselves.(iv)The tenancy must have been in writing, containing a statement (or carrying an endorsement) indicating clearly that s 3 does not apply to the tenancy. Cf s 2(1) consent, which applied to implied as well as express tenancies.167
5.68 Whether consent was obtained under s 2 or 5, the terms of the MAF consent must have been strictly complied with – both, for example, as to the type of agreement entered into and the period of letting authorised.168 If the terms of the MAF consent were not observed, the agreement might constitute a protected tenancy with full 1986 Act protection. Construction of the MAF consent is therefore important. So,169 a MAF consent which authorised letting (under s 5) for ‘a period of not less than 2 years commencing on 1 October 1984 and ending not later than 31 September 1989’ was complied with where the tenancy was back-dated to 1 October 1984, as the term did not have to commence on the date stated, provided it ended within the period allowed. Similarly,170 a MAF consent under section 5 to ‘a term of not less than 2 and not more than 5 years commencing on the day of 13 November 1991’ was held to be operative where the parties signed the tenancy agreement on 11 February 1992 and backdated it to 13 November 1991. The date in the MAF consent was interpreted as a ‘back stop’ indicating that the Ministry was consenting to an agreement that did not go beyond 13 November 1996. Rectification of the agreement might be available where the Court finds a common intention that it was to be for a period approved by MAF, eg, where a licence under s 2 gave possession for 1 day too long.171 Where the parties made a joint application for MAF consent under s 5, moreover, the court will construe the agreement on the basis that both parties agreed that it should be one to which the 1986 Act security provisions did not apply.172