Agricultural law update Perth - 2010 11-11

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  • 1. AGRICULTURAL LAWRobert Sutherland, Advocate Terra Firma Chambers
  • 2. Rent ReviewsMorrison-Low v Paterson, SLC/233/08,2 June 2010•Court has to make decision based onevidence before•no reason why parties could not choosefrom one of a number of differentmethods, e.g. agreed expert valuer,written submissions and inspection
  • 3. Rent ReviewsMorrison-Low v Paterson, SLC/233/08,2 June 2010•comment on statutory disregards oftenant’s occupation and scarcity•LDT’s and SLDT’s could be comparables•current economic conditions – notappropriate to assess rent based onbudget for single year
  • 4. 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
  • 5. Limited PartnershipSalvesen v Riddell, SLC/2/09, 29 July2010•limited partnership until 28/11/2008 andfrom year to year thereafter - notice ofdissolution served on 3/2/2003•2003 Act, s72(9)(a)(i) – notice servedotherwise than for purpose of deprivinggeneral partner of any right deriving froms72?
  • 6. Limited PartnershipSalvesen v Riddell, SLC/2/09, 29 July2010•purpose? – to avoid the risk that 2003 Actwould prevent landlord from terminatingtenancy – landlord’s own plans?•retrospective effect•ECHR?•intention of Scottish Parliament?
  • 7. 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
  • 8. Changes to the leaseFraser v Trs of the Cawdor ScottishDiscretionary Trust, SLC/75/09, 22March 2010•originally 2 separate leases to 2 tenants –whether amalgamation into 1 holding = 1lease?•tenant = father, whether subsequentdiscussions and correspondence =acceptance of informal assignation toson?
  • 9. IrritancyMount Stuart Trust v McCulloch, 2010SC 404, 2010 SLT 409•interest payable on late rent•rent paid after due date an irremediablebreach?– landlord should have served a notice to pay•S.13 rent review application before SLChad no effect on liability to pay rent
  • 10. 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?
  • 11. 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
  • 12. Single Farm PaymentLandkreis Bad Dürkheim v Aufsichts-und Dienstleistungsdirektion, C-61/09,ECJ, 14 October 2010•not necessary to pay monetary rent undera lease or similar•sufficient if have autonomy for agriculturalactivities for at least 10 months•provided also used for own activities notmatter if also have obligations to 3rd party
  • 13. Single Farm PaymentSchecke GbR & Eiffert v Land Hessen,C-92 & C-93/09, AG Opinion, 17 June2010•Article 8 ECHR; Articles 7 & 8, CFREU;Article 6 TEU•Article 44a, Council Regulation1290/2005 invalid in requiring automaticpublication of names & locality of allbeneficiaries together with sums received
  • 14. Single Farm PaymentR. (on the application of TA Gwillim &Sons) v Welsh Ministers, 2010 EWCACiv 1048, 6 October 2010•“production was adversely affected” aptto cover any situation where productionlower than it would otherwise have been•includes where planned or expectedincrease in production could not beimplemented
  • 15. CloningDolly & BonnieCopyright : The Roslin Institute
  • 16. CloningSteven Innes and Callum Innes, Nairn•used 2 cloned bulls to sire 96 cows•meat and milk from cows entered UKfood chain?•FSA say license required as novel foods‘•rules on novel foods apply to offspring ofcloned animals?•SCoFCAH to take this issue on
  • 17. ConsultationProposals to Amend the AgriculturalHoldings Acts 1991 and 2003•SLDT’s convertible to LDT’s duringlifetime•minimum term of LDT reduced to 10years•amendment of S. 16 (1)-(5), 2003 Act -provisions regarding fixed equipmentsupplied by landlord of LDT and SLDT
  • 18. ConsultationProposals to Amend the AgriculturalHoldings Acts 1991 and 2003•‘viable unit’ test in place of ‘two-man unit’•changes to procedures for nullification ofPLA•Morrison-Low v Paterson’s Exrs, 2005SLT (Land Ct) 2 – amendment to S.13,1991 Act - written notice
  • 19. AGRICULTURAL LAWRobert Sutherland, Advocate Terra Firma Chambers