AGRICULTURAL LAW

Robert Sutherland, Advocate

Terra Firma Chambers

Rent Reviews

Morrison-Low v Paterson, SLC/233/08, 2 June 2010

•Court has to make decision based on evidence before

•no reason why parties could not choose from one of a number of different methods, e.g. agreed expert valuer, written submissions and inspection

Rent Reviews

Morrison-Low v Paterson, SLC/233/08, 2 June 2010

•comment on statutory disregards of tenant’s occupation and scarcity

•LDT’s and SLDT’s could be comparables

•current economic conditions – not appropriate to assess rent based on budget for single year

Rent Reviews

Morrison-Low v Paterson, SLC/233/08, 2 June 2010

• SFP not to be considered as farm income

•Assumptions:– potential tenant would have an appropriate level

of SFP and would be able to pay a higher rent– sufficient capital to provide equipment– a major share of profits to go to landlord

Limited Partnership

Salvesen v Riddell, SLC/2/09, 29 July 2010

•limited partnership until 28/11/2008 and from year to year thereafter - notice of dissolution served on 3/2/2003

•2003 Act, s72(9)(a)(i) – notice served otherwise than for purpose of depriving general partner of any right deriving from s72?

Limited Partnership

Salvesen v Riddell, SLC/2/09, 29 July 2010

•purpose? – to avoid the risk that 2003 Act would prevent landlord from terminating tenancy – landlord’s own plans?

•retrospective effect

•ECHR?

•intention of Scottish Parliament?

Interpretation of lease

• Forbes v Cameron, 2010 SLT 1017

• 1913 Lease - rent payable at Whitsunday and Martinmas; General Articles specify dates (15 May, 11 November)

• NQ - remove Whitsunday (28 May) 2009

• S1(4) Term & Quarter Days (S) Act 1990 cuts across principles of construction followed by SLC

Changes to the lease

Fraser v Trs of the Cawdor Scottish Discretionary Trust, SLC/75/09, 22 March 2010

•originally 2 separate leases to 2 tenants – whether amalgamation into 1 holding = 1 lease?

•tenant = father, whether subsequent discussions and correspondence = acceptance of informal assignation to son?

Irritancy

Mount Stuart Trust v McCulloch, 2010 SC 404, 2010 SLT 409

•interest payable on late rent

•rent paid after due date an irremediable breach?– landlord should have served a notice to pay

•S.13 rent review application before SLC had no effect on liability to pay rent

Land Court Procedure

• Loudon v Hamilton, 2010 SLT 984

• oral agreement, < 1yr, renewal anticipated

• stock on farm continuously v IACS returns, subsequent sales of land in parcels

• [para 29] ‘.opportunistic..deplorable..deplorable .. scandalous averments…worst of all…’

• SLC granted interdict on strength of a letter – ‘not appropriate’ – ‘suggestions’: real emergency?; hearing; caution?

Land Court Procedure

• Colstoun Trust v AC Stoddart & Sons, 2010 SC 399

• litigation to be conducted efficiently, expeditiously, fairness to all

• plea of competency could be lost by delay

• discretion, interests of justice, undesirable that rent review delayed further

• SLC should be cautious about expressing obiter dicta without full argument / hearing

Single Farm Payment

Landkreis Bad Dürkheim v Aufsichts- und Dienstleistungsdirektion, C-61/09, ECJ, 14 October 2010

•not necessary to pay monetary rent under a lease or similar

•sufficient if have autonomy for agricultural activities for at least 10 months

•provided also used for own activities not matter if also have obligations to 3rd party

Single Farm Payment

Schecke GbR & Eiffert v Land Hessen, C-92 & C-93/09, AG Opinion, 17 June 2010

•Article 8 ECHR; Articles 7 & 8, CFREU; Article 6 TEU

•Article 44a, Council Regulation 1290/2005 invalid in requiring automatic publication of names & locality of all beneficiaries together with sums received

Single Farm Payment

R. (on the application of TA Gwillim & Sons) v Welsh Ministers, 2010 EWCA Civ 1048, 6 October 2010

•“production was adversely affected” apt to cover any situation where production lower than it would otherwise have been

•includes where planned or expected increase in production could not be implemented

Cloning

Dolly & BonnieCopyright : The Roslin Institute

Cloning

Steven Innes and Callum Innes, Nairn

•used 2 cloned bulls to sire 96 cows

•meat and milk from cows entered UK food chain?

•FSA say license required as 'novel foods‘

•rules on novel foods apply to offspring of cloned animals?

•SCoFCAH to take this issue on

Consultation

Proposals to Amend the Agricultural Holdings Acts 1991 and 2003•SLDT’s convertible to LDT’s during lifetime •minimum term of LDT reduced to 10 years•amendment of S. 16 (1)-(5), 2003 Act - provisions regarding fixed equipment supplied by landlord of LDT and SLDT

Consultation

Proposals to Amend the Agricultural Holdings Acts 1991 and 2003

•‘viable unit’ test in place of ‘two-man unit’

•changes to procedures for nullification of PLA

•Morrison-Low v Paterson’s Exrs, 2005 SLT (Land Ct) 2 – amendment to S.13, 1991 Act - written notice

AGRICULTURAL LAW

Robert Sutherland, Advocate

Terra Firma Chambers