Update: agriculture

As the last agriculture update went to press (Solicitors Journal 153/41, 3 November 2009) it transpired that the RPA had 'lost' private details of thousands of farmers. After this and other errors in 2009 relating to mapping, the RPA decided to mend some of the holes in its fence '“ beginning by going after some 1,700 farmers to whom it had overpaid well in excess of £55m.

One such farmer challenged the RPA under EU Commission regulation 796/2004 when he was sent a demand for over £17,000 of repayments. The overpayments arose because there had been an inputting error when the scheme first started in 2005 which had resulted in him receiving an overpayment of £6000 per year under the scheme.

Paragraph 1 of article 73 provides that 'if undue payment is made, the farmer shall repay the amount in question plus interest'. However, article 73 provides for a form of statutory estoppel whereby: 'The repayment obligation referred to in paragraph 1 shall not apply if the payment was made by error of the competent authority'¦ and if the error could not reasonably have been detected by the farmer.' The farmer's solicitor appears to have resisted the flippant response of taking the RPA to task on the meaning of the word 'competent', and merely saw off the RPA's claim by arguing successfully that the farmer could not reasonably have detected the overpayment.

It should be noted that this is not case law, and each case should be judged on its merits. This approach should not be used to counter repayment demands where the farmer has not filled out his claim form properly or has made a fraudulent claim.

How far can a possession order extend?

Landowners frequently turn to their legal advisers for help in evicting travellers or squatters from land, and a recent case should have some bearing on the way in which a possession claim against travellers is approached.

The Supreme Court ruled in December last year that it would effectively be a contradiction in terms to grant a sort of quia timet possession order in respect of land which is not yet occupied by trespassers, particularly if it is some distance from the site in question.

Secretary of State for the Environment and Rural Affairs v Meier [2009] UKSC 11 concerned a relatively small number of travellers at Hethfelton Wood in Dorset. Some of them had been camped in woodland a few miles away from Hethfelton, but, when DEFRA issued possession proceedings for the other land, they agreed to leave, only to move to Hethfelton to join the existing encampment. A third set of people who had been ejected from other DEFRA land nearby then also moved into Hethfelton. Exasperated, DEFRA issued proceedings against all the defendants whom it could name, plus 'persons unknown'. The land subject to the claim was not just Hethfelton, but some 50 other woods covering a large part of the county; although this number was subsequently pared down to 13 sites covering an area of around 25 miles across by ten miles.

Then appeal came to the Supreme Court on two points, which Baroness Hale neatly summarised:

1. can the court grant a possession order in respect of land, no part of which is yet occupied by the defendant, because of the fear that she will occupy it if ejected from the land which she currently does occupy; and

2. should the court grant an injunction against that feared trespass?

As to the first question, the Supreme Court held that it was simply not possible for DEFRA to obtain possession of land of which it was not dispossessed, particularly since it was seeking a 'blanket' possession order spanning most of a county. DEFRA pleaded that a practice had evolved of asking the courts to include not only the area of woodland in wrongful occupation, but all other areas of woodland it owned within a specified radius.

In terms of the injunction, the point was made in judgment that injunctions are a fairly toothless remedy as far as travellers are concerned because a traveller's main asset is his vehicle, which is also his home. As such, sequestration would be 'pointless or oppressive'. Since many of the defendants are vulnerable, and most of them have young children, imprisonment may very well be disproportionate. Nonetheless, the Supreme Court upheld the injunction against the anticipated trespass on the basis that it was not 'plainly wrong' to grant it.

Points arising from Meier

Possession orders can still go further than just the occupied land, but only slightly!

As Lord Neuberger pointed out when giving judgment, 'this does not mean that, where trespassers are encamped in part of a wood, an order for possession cannot be made against them in respect of the whole wood'. What is less certain is where the crossover point lies '“ could it be asking too much to try to seek possession of a 3000-acre estate when travellers have set up camp on a sugar beet pad in the middle of it? According to Lord Neuberger, that may well be the case, and claimants should not be over-ambitious when defining land in a possession claim.

Following the guidance

This case serves as a useful reminder that a claimant (particularly an 'eminence of the state') can find his position prejudiced by a failure to adhere to non-statutory guidance. The relevant guidance here is 'Managing Unauthorised Camping' (published by Communities and Local Government and available at www.communities.gov.uk). It was undisputed that the claimant public body should comply with the guidance before starting proceedings, and that the proceedings ran the risk of being invalidated if it transpired that the guidance had not been followed. It is questionable as to whether adhering to the guidance is as relevant to private landowners as it is crucial to public bodies '“ self-help remains an available (if rather unfashionable) remedy. Nonetheless, 'roughing up' your unwelcome visitors is, putting it mildly, not going to elicit any judicial sympathy.

How useful is an injunction?

There is a fine line to be drawn here, because the Supreme Court has with one hand endorsed this injunction, while observing that it would not be likely to prove a very satisfactory remedy when the time came to enforce. As such, prospective claimants should balance the effectiveness of the threat of sequestration or imprisonment against the possibility that courts may in future be less willing to award injunctive relief in cases such as this.

How does a claimant protect the rest of his land?

Lord Neuberger expressed a preference for declaratory relief over an injunction which may well be difficult to bring to bear. His reasoning was that the court could grant a declaration that the claimant is in possession of other land and that the travellers have no right to dispossess him of it. This would help the claimant resolve any subsequent proceedings to his advantage.

One certainty now subsists though '“ blanket possession orders are history, and claimants should think less about injunctions and more about declarations.

When is a notice to quit invalid?

The 2009 case of Bradford Community Housing Ltd v Wajid Hussain, Shabna Kauser [2009] EWCA Civ 763, carries implications for a far larger class of persons than jilted lovers who refuse to give up their council houses. Agricultural tenants of residential property and Agricultural Holdings Act tenants also enjoy periodic tenancies protected by statute. Landlords need to take care when serving (or accepting) notices to quit '“ but a little less than before, it seems.

Mr Hussain and Miss Kauser lived in a council house in Bradford, which they had rented under an assured weekly tenancy since 2001. The notice provisions on the tenancy were 'not less than 28 days' written notice expiring on any Friday should he/she wish to terminate the tenancy'.

After several 'stutters', the relationship broke down irretrievably and Kauser (of her own accord) served a notice to quit on the council dated 24 January 2007. The notice specified two alternatives: 'With effect from Sunday 25 February 2007 or the day on which a complete period of [the] tenancy expires next after the end of four weeks from the date of this notice.'

It is settled law that Kauser could serve the notice to quit on her own initiative without Hussain's consent provided that the notice is for the full period. Having given notice, Kauser moved on to other accommodation, leaving Hussain in the property to face the council's possession proceedings.

One of Mr Hussain's key arguments before the Court of Appeal was that the 'catch-all' provision as to dates was invalid and that the notice was therefore invalid. As such, his security of tenure should be safe.

The Court of Appeal held that a notice containing both a date and a 'catch-all' provision was just as good at law as a notice properly calculated in accordance with the provisions of the tenancy. But for the rather unusual circumstances of this case, this should be seen as good news for the less-than-thorough tenant; however, it should not stop landlords from rejecting genuinely defective notices.

• Where short notice is given, practitioners should remember that the act of giving notice is technically a surrender and requires the consent of both tenants rather than just one.
• Paying rent, even if this is done after and with knowledge of the notice to quit, does not destroy the effect of the notice.
• Once a notice has been served it cannot be withdrawn.

And finally'¦

Despite the exchange-rate fuelled shot in the arm that farmers' finances received this year through their single farm payments, it still takes an entrepreneur to make a go of agribusiness. A young farmer agreed to buy a sow for £60 cash. He paid the seller for delivery the next day. Next morning, the seller rang to say that the sow had died during the night and unfortunately he had already drunk the purchase price, so no refund. The farmer telephoned his solicitor, who advised that his fees for opening a file would probably exceed the quantum of damages and if they didn't then the court fee for issuing proceedings certainly would.

The farmer decided to go for specific performance, and the dead animal was duly delivered. The seller asked what the farmer was going to do with her. 'There's no profit in bacon,' he said, 'I'll raffle her at the village disco, and just won't tell people that she's dead.' Incredulous, the seller left. The farmer sold £600 worth of tickets that night. 'Surely someone complained once they saw the pig,' the seller later enquired. 'Yes, the winner was a bit peeved, but I gave him double his money as a refund, and he still has a winter's worth of pork chops and bacon if he gets on with butchering it!'

Profit: £530, or the value of roughly two acres' worth of wheat harvest.