Eleventh Report of Session 2021-22 Contents

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Appendix 2

S.I. 2021/619

Agricultural Holdings (Requests for Landlord’s Consent or Variation of Terms and the Suitability Test) (England) Regulations 2021

1.In its letter to the Department for Environment, Food and Rural Affairs of 14 July 2021 the Joint Committee requested a memorandum on the following points:

Explain—

(1) the purpose and effect of the power contained in regulation 3(7) to modify the tenant’s notice, given that the notice appears to be a preliminary step pre-dating the involvement of the arbitrator; and

(2) by reference to what criteria the question of whether the modification is necessary or justified is intended to be determined.

2.In respect of question (1), there was considerable consultation with industry representatives in the preparation of this instrument. As part of that consultation, we were advised that from their experience it would be beneficial to save time and costs in certain circumstances to include provision dealing with the situation where the request set out in the tenant’s notice is not, or is no longer, accurate and ought to be amended to reflect the request that the arbitrator or third party is being asked to consider.

3.For example, where the request is made in order to access relevant financial assistance, regulation 3(6)(d) requires the notice to describe the activities proposed on the holding if the application for financial assistance is successful. If these should change between the giving of the notice and the point at which the arbitrator or third party is to make their award or determination, perhaps for reasons outside the tenant’s control to do with the terms of the financial assistance, it may be necessary and justified to amend the notice to reflect accurately the request being made and the proposed actions on the holding that are to be considered by the arbitrator or third party notwithstanding the provisions of regulation 4 (which do not restrict the arbitrator or third party to making the award or determination sought in the original notice).

4.A decision was therefore taken to include such a provision to enable the arbitrator or third party, as applicable, to modify the tenant’s notice to amend or redefine the request they are being asked to consider in order to reflect the request accurately. This is for the purpose of avoiding wasted costs and time but is limited to those modifications which are necessary and justified.

5.In respect of question (2), our view was that as this is a narrow power intended for use in respect of manifest corrections being required, no additional specific criteria were needed (particularly given the general principles set out in section 1 of the Arbitration Act 1996, the general duty of the tribunal set out in section 33 and the terms of third party determination agreements). There are also existing, analogous duties placed on the arbitrator or third party to be found in the Agricultural Holdings Act 1986, for example, under section 6(2), to consider what is reasonable and just between landlord and tenant when determining written terms of the tenancy.

Department for Environment, Food and Rural Affairs

19 July 2021