10 ‘Suitability’ for succession
8.54 Once a candidate’s eligibility for succession is established, he must prove to the tribunal’s satisfaction that he is also a ‘suitable’ person to become tenant of the holding.103 The burden of proof is on the applicant to satisfy the tribunal that s/he is suitable,104 and this will usually require the production of his/her birth certificate, the farm accounts, evidence of financial probity and borrowing arrangements, evidence of training in agriculture, and a full statement of the applicant’s assets.
The enquiry for the tribunal is at large, and unlike the position when considering the applicants eligibility (above) it is not constrained by technical rules; the tribunal can bring its expertise in agricultural matters to bear in deciding whether the applicant will be ‘suitable’ to take on the tenancy by way of succession. Suitability is, ultimately, a question of fact for the tribunal.8.55 The Act directs the tribunal to consider three matters in particular.105 It must have regard to ‘all relevant matters’ including: (i) the extent of the applicant’s training and practical experience in agriculture; (ii) the age, physical health and financial standing of the applicant and; (iii) the view (if any) stated by the landlord on the suitability of the applicant. In Dagg v Lovett,106 it was indicated that the scale of rent rise likely on the grant of a succession tenancy, and its impact on the profitability of the farm, could be a ‘relevant factor’ for consideration. Where there is more than one eligible applicant, and agreement cannot be reached, the tribunal will have to decide which applicant is the more suitable to the tenancy. Where there are competing claims and relative suitability is at issue, then the tribunal may need to categorise the relative strengths and weaknesses of the applicants. Different tribunals adopt different tests, including adopting a view of what the ‘objective landlord’ would regard as suitable, and whether one or more of the eligible applicants would be likely to be awarded a farm business tenancy on the open market (the so called ‘open market standard’). If one applicant satisfies the open market test, then it is likely that s/he will be viewed as a suitable candidate to succeed to the tenancy ahead of other applicants who do not.107 Ultimately, however, this also is a question of fact for the tribunal, on which it must exercise its expert judgment, and the exercise of that judgement will not be reviewable in the courts.