EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Menzies Lord Brodie Lord Malcolm	[2013] CSIH 47 XA89/12 OPINION OF LORD MENZIES in the appeal by THOMAS GORDON TELFER Appellant; against THE BUCCLEUCH ESTATES LIMITED Respondents: _______________

Appellant: Party

Respondents: Sir Crispin Agnew, QC; Anderson Strathern

31 May 2013

[1] I have had the advantage of reading and considering in draft the Opinion of Lord Brodie, and I am in complete agreement with the views expressed therein.

[2] For the avoidance of doubt, I agree that the argument which the appellant sought to advance before us based on the principle of unity of contract must be refused because the grounds of appeal contain no hint of such an argument. On the second day of the hearing before us the appellant sought to amend his grounds of appeal to introduce a fifth ground, founded on the principle of unity of contract. This motion was opposed on behalf of the respondents on several grounds, including that the issue of who was responsible for the state of the Duntercleuch fence in 2007 was not explored at the proof before the Land Court, that the issue was a pure question of law which could have been raised earlier in the proceedings but was not, that the respondents had been given no notice of such a line of argument and had not addressed it, and that the attempt to introduce it came far too late. Essentially for the reasons advanced on behalf of the respondents the court refused the appellant's motion. The argument which he sought to introduce was not free from difficulty, and we considered that it would not be fair to the respondents to allow it to be advanced at such a late stage, without prior notice having been given to them.

[3] I agree that ground of appeal 3 falls to be refused for the reasons explained by Lord Brodie. The Land Court made findings of primary facts which entitled it to draw the conclusion which it reached that the Duntercleuch fence was a separate item. It cannot be argued that there was a material legal flaw in their approach. I would answer the third question raised by the appellant in the grounds of appeal in the negative. I too consider that the approach of the Land Court in considering individual items of fixed equipment rather than looking at the equipment as a whole was correct, and I would answer the fourth question in the negative.

[4] For the reasons given by Lord Brodie, I would answer the first and second questions in the affirmative. It does not appear to me that the distinction between "renewal" and "replacement" in this context is the material issue. The Duntercleuch fence was a readily understood item of fixed equipment as at the date of the PLA in 1971, and remained a readily understood item of fixed equipment as at the date of the appellant's notice in October 2007. It performed (or was intended to perform) the same function at both these dates; it forms the match with the farm of Clenries in the Duntercleuch valley. Whether the whole of the Duntercleuch fence was renewed between 1971 and 2007, or whether parts of it were renewed, or a number of stobs or strainers or wires were replaced (and if so, how many) appears to me to be beside the point. The point is that the Duntercleuch fence was understood and identifiable and was intended to perform the same function at both dates. In these circumstances the exercise of comparison required by section 5(4B)(b)(ii) must be carried out.

[5] I confess that I have had more difficulty with the issue of competency than your Lordships, and I found Sir Crispin's submissions on this point initially attractive. Section 88 of the 2003 Act provides inter alia that any party to a matter determined by the Land Court by virtue of the 1991 Act or the 2003 Act may appeal against the determination on a question of law within 28 days of the determination. The legal issues which are raised by the appellant in the present grounds of appeal as to the proper construction of the new provisions added to section 5 of the 1991 Act by section 60 of the 2003 Act were the subject of debate before the Land Court in 2009 and 2010, and the Land Court determined these issues in its orders dated 6 May 2009 and 3 November 2010. The appellant did not appeal against these determinations within 28 days of them, but instead allowed the dispute to proceed to a proof lasting in total 9 days in January and February 2012. It followed, Sir Crispin submitted, that the Land Court's determinations as to these legal issues could not now be competently appealed.

[6] The Land Court itself was clearly aware of the terms of section 88 of the 2003 Act, and of the possibility that an appeal might be taken against its construction of the new statutory provisions. At paragraph [143] of the court's Note attached to the order dated 6 May 2009 it stated as follows:

"Decision

[143] Counsel invited us to have in mind the decision of the Inner House on 3 February 2009 in the appeal in SLC/119/07. The court decided that an appeal could not proceed where it could not identify any determination or definitive decision in the Land Court's note. It will be for the Appellate Court considering its own jurisdiction to decide what type or types of findings are properly to be regarded as 'determinations' within the meaning of section 88. We, accordingly, avoid use of that word. However, we consider it appropriate to make the following findings based on the foregoing discussion. Our intention in making these findings is to express a concluded view on certain matters of law for the purposes of litigation between the present parties. It may be, of course, that other expressions of view in the Discussion above should also properly be regarded as 'determinations' for the purposes of section 88. We make the following explicit findings purely for the avoidance of doubt".

[7] In the Note attached to the order dated 3 November 2010 the Land Court preceded its findings [100]-[103], which are central to the issues argued before us, with the following:

"Decision

[99] It is appropriate to summarise our answers to the four questions in more formal findings or determinations..."

[8] It seems clear from the above that the Land Court was alive to the possibility that an appeal would be taken within 28 days of each of these determinations, and had the terms of section 88 of the 2003 Act in mind. For my part, I consider that an appeal could probably have been competently taken within 28 days of each of the decisions dated 6 May 2009 and 3 November 2010. The question now comes to be whether the appellant was bound to appeal at that time, or whether he was entitled to await the outcome of the proof and appeal within 28 days of the decision following proof?

[9] On reflection, I have reached the view that it is competent for the appellant, in the circumstances of this case, to refrain from appealing the earlier decisions, but to await the outcome of the proof. (It is not disputed that the appellant appealed to this court within 28 days of the decision dated 25 April 2012). Just because it was open to the appellant to appeal against the earlier decisions within 28 days of their being made, it does not follow that he was obliged to do so. The issues which form the basis of his appeal to this court were the issues which formed the substance of the decision of 25 April 2012. As part of that decision, the Land Court decided (at paragraph [66] of its Note) that the Duntercleuch march fence was not in a reasonable state of repair on the specified date and that, as the fence as it stood on that date was a replacement fence erected in 1972, it cannot be said that it was in a worse state when the PLA was made. This was an integral part of the Land Court's decision of 25 April 2012, and the appellant is in my view entitled, by reason of section 88 of the 2003 Act, to appeal against that decision "in all its parts", to use Lord Osborne's phraseology in Harvey v McTaggart and Mickel. Having regard to that authority, I am persuaded that Sir Crispin's attack on the competency of this appeal is misconceived, and that the appeal is competently before this court.

[10] I agree that this appeal should be disposed of as proposed by Lord Brodie.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Menzies Lord Brodie Lord Malcolm	[2013] CSIH 47 XA89/12 OPINION OF LORD BRODIE in the appeal by THOMAS GORDON TELFER Appellant; against THE BUCCLEUCH ESTATES LIMITED Respondents: _______________

Appellant: Party

Respondents: Sir Crispin Agnew, QC; Anderson Strathern

31 May 2013

Introduction

The parties

[11] This is an appeal to the Court of Session on a question of law against a determination by the Land Court by virtue of the Agricultural Holdings (Scotland) Act 1991. The appellant is Thomas Gordon Telfer. The respondents are The Buccleuch Estates Limited. The appeal is brought under section 88 of the Agricultural Holdings (Scotland) Act 2003. The appellant is tenant and the respondents are landlords under a lease executed on 30 November 1970 and 29 March 1971, as varied by a post-lease agreement executed on 29 March and 3 April 1971 (the "PLA"). The subjects of the lease are the lands and farm of Auchengruith (including Glenim), extending to 5149 acres, lying near Wanlockhead in the parish of Sanquhar. The subjects are illustrated in the copy plan 7/4 of process. The lease is a lease of an agricultural holding.

The issue

[12] The appeal is concerned with the re-allocation, as between the appellant, as tenant, and the respondents, as landlords, of liability for the cost of replacement or renewal of fixed equipment on the holding, by nullification of the PLA in terms of section 5(4B) of the 1991 Act.

[13] As from 1 November 1948, in terms of the Agricultural Holdings (Scotland) Act 1949 and, in particular, section 5(2)(a) of that Act, there has deemed to be incorporated in every lease for the letting of an agricultural holding an undertaking by the landlord that, at the commencement of the tenancy or as soon as is reasonably practicable thereafter, he will put the fixed equipment on the holding into a thorough state of repair, and will provide such buildings and other fixed equipment as will enable an occupier reasonably skilled in husbandry to maintain efficient production and, further, that he will during the tenancy effect such replacement or renewal of the buildings or other fixed equipment as may be rendered necessary by natural decay or by fair wear and tear. This deeming provision was re-enacted, in substantially the same terms, on consolidation of the legislation, by section 5(2)(a) of the 1991 Act. It operates to impose an obligation on the landlord to renew and replace fixed equipment as this becomes necessary. This is so irrespective of what the lease may say; there can be no contracting out: Secretary of State v Sinclair 1959 SLCR 10. However, notwithstanding the effect of section 5(2) on the lease, section 5(3) of the 1949 Act specifically provided that section 5(2) did not prohibit any agreement made after the lease has been entered into between the landlord and the tenant (otherwise, a "post-lease agreement") whereby one of the parties undertakes to execute on behalf of the other, and wholly at his own expense or wholly or partly at the expense of the other party, any work which the other party is required to execute in order to fulfil his obligations under the lease. Again, this provision permitting the liability for the cost of renewal and replacement of fixed equipment to be contractually allocated as between landlord and tenant by a post-lease agreement was substantially re-enacted in section 5(3) of the 1991 Act.

[14] Section 5 of the 1991 Act was amended by section 60 of the 2003 Act. Section 5(3) was repealed (as was section 5(5)). New subsections: (4A), (4B), (4C) and (4D), were introduced. Subsection (4D) provided that post-lease agreements made after the subsection came into force which purport to provide for the tenant to bear any expense of any work which the landlord is required to execute (which formerly were specifically permitted by the now repealed section 5(3)) shall be null and void. Subsections (4A), (4B) and (4C) relate to post-lease agreements made before the coming into force of the new provisions. In terms of subsection (4A) any agreement between the landlord and tenant, made before the coming into force of the subsection, which purports to provide for the tenant to execute on behalf of the landlord (whether wholly at his expense or wholly or partly at the expense of the landlord) any work effecting such replacement or renewal of fixed equipment on the holding as is rendered necessary by natural decay or by fair wear and tear, shall be nullified provided that the requirements of subsection (4B) are complied with. Subsection (4C) applies subsections (4A) and (4B) to post-lease agreements which provide that the tenant bear any of the expense of any work of replacement or renewal which is required to be done by the landlord.

[15] The PLA in the present case makes provision for the maintenance of the fixed equipment on the subjects and the renewal, and the payment for renewal, of fences et cetera and land drainage. The respondents are obliged to renew fences and entitled to renew land drainage but the appellant is obliged to contribute to the cost. In addition the appellant is obliged to provide haulage. Accordingly, the PLA is an agreement such as is referred to in section 5(4A) of the 1991 Act and therefore is subject to nullification on the appellant giving notice as provided by section 5(4B)(a) and the other requirements of section 5(4B) being complied with.

[16] The appellant gave notice by letter to the respondents' agent dated 22 October 2007 that the PLA be nullified as from that date. No question arises as to the formal validity of the notice but, by letter dated 9 November 2007, the respondents' agent objected to the notice on the ground that the fixed equipment on the holding did not comply with the requirements of section 5(4B).

[17] The respondents' objection put in issue the state of repair of the fixed equipment on the holding as at 22 October 2007. Included in the fixed equipment of the holding was the Duntercleuch march fence ("the Duntercleuch fence"). The Duntercleuch fence is delineated in blue on the plan 7/4 of process. It runs for some 2.5 miles. It forms the march with the farm of Clenries at the Duntercleuch valley, running north from Stood Hill down into the valley, turning north west along the south side of the water-course, then north east across the water and then east up to Sowen Dod where the march with the Hopetoun estate begins. The Duntercleuch fence is part (but only part) of the boundary of the appellant's IACS (Integrated Administration and Control System) field, number 36. Field 36 designates the whole of the hill ground of Auchengruith.

[18] The appellant applied to the Land Court for an order declaring that his notice that the PLA or any other agreement made during the lease be nullified as from 22 October 2007 was valid (application number SLC/225/07). In the procedure which followed the Land Court issued, inter alia, orders dated 6 May 2009, 3 November 2010, and 25 April 2012. It is the decision expressed in the order of 25 April 2012 which is appealed to this court. That decision determines, inter alia, that the Duntercleuch fence was a distinct and significant item of fixed equipment; that it was not in a reasonable state of repair as at 22 October 2007; and that as the fence as it stood on that date was a replacement fence erected in 1972, and therefore something different than what was there in 1971, it cannot be said that the Duntercleuch fence was not in a worse state than it was when the PLA was entered into. As a result it could not be said that the requirements of section 5 (4B) were complied with. The appellant's application to have the PLA held to have been nullified therefore fell to be refused. It is against that refusal that the appellant appeals.

The statutory provisions

[19] As between 27 November 2003 and 21 March 2011 (the relevant period for present purposes) the Agricultural Holdings (Scotland) Act 1991 provided, inter alia, as follows:

"5 - Fixed equipment and insurance premiums

(1) When a lease of an agricultural holding to which this section applies is entered into, a record of the condition of the fixed equipment on the holding shall be made forthwith, and on being so made shall be deemed to form part of the lease; and section 8 of this Act shall apply to the making of such a record and to the cost thereof as it applies to a record made under that section.

(2) There shall be deemed to be incorporated in every lease of an agricultural holding to which this section applies-

(a) an undertaking by the landlord that, at the commencement of the tenancy or as soon as is reasonably practicable thereafter, he will put the fixed equipment on the holding into a thorough state of repair, and will provide such buildings and other fixed equipment as will enable an occupier reasonably skilled in husbandry to maintain efficient production as respects both-

(i) the kind of produce specified in the lease, or (failing such specification) in use to be produced on the holding, and

(ii) the quality and quantity thereof,

and that he will during the tenancy effect such replacement or renewal of the buildings or other fixed equipment as may be rendered necessary by natural decay or by fair wear and tear; and

(b) a provision that the liability of the tenant in relation to the maintenance of fixed equipment shall extend only to a liability to maintain the fixed equipment on the holding in as good a state of repair (natural decay and fair wear and tear excepted) as it was in-

(i) immediately after it was put in repair as aforesaid, or

(ii) in the case of equipment provided, improved, replaced or renewed during the tenancy, immediately after it was so provided, improved, replaced or renewed.

...

(4A) Any agreement between the landlord and tenant made before the coming into force of this subsection which purports to provide for the tenant to execute on behalf of the landlord (whether wholly at his expense or wholly or partly at the expense of the landlord) any work effecting such replacement or renewal of the building or other fixed equipment on the holding as is rendered necessary by natural decay or by fair wear and tear shall be nullified provided that subsection (4B) below is complied with.

(4B) This subsection is complied with if-

(a) following a determination (in accordance with section 13 of this Act) of the rent payable in respect of the holding, the tenant gives notice to the landlord that the agreement be nullified as from a date specified in the notice ; and

(b) on that date

(i) the buildings and other fixed equipment are in a reasonable state of repair; or

(ii) if the buildings and other fixed equipment were in an unreasonable state of repair when the agreement was made, they are not in a worse state of repair than they were then."

(4C) Any agreement between the landlord and tenant made before the coming into force of this subsection which purports to provide for the tenant to bear any expense of any work effecting such replacement or renewal of the building or other fixed equipment on the holding as is rendered necessary by natural decay or by fair wear and tear shall be subject to subsections (4A) and (4B) above.

(4D) Any agreement between the landlord and tenant made on or after this subsection comes into force which purports to provide for the tenant to bear any expense of any work which the landlord is required to execute in order to fulfil his obligations under the lease shall be null and void."

...

60 Resolution of disputes by Land Court

(1) The Land Court shall have jurisdiction to hear and determine any of the matters referred to in subsection (2) below.

(2) Those matters are-

...

(b) any question or difference between the landlord and tenant of such a holding arising out of the tenancy or in connection with the holding, whether such question or difference arises during the currency of or on or after the termination of the tenancy;

...

(d) any other issue of fact or law relating to-

(i) a tenancy of such a holding or any other type of agricultural tenancy; or

(ii) agriculture,

which the landlord or tenant reasonably require to have resolved.

...

(6) Any application to the Land Court for a matter to be determined by the Court under this Act may be made by either party or by them jointly.

...

85.- Interpretation.

(1) In this Act, unless the context otherwise requires-

...

'building' includes any part of a building;

...

'fixed equipment' includes any building or structure affixed to land and any works on, in, over or under land, and also includes anything grown on land for a purpose other than use after severance from the land, consumption of the thing grown or of produce thereof, or amenity, and, without prejudice to the foregoing generality, includes the following things, that is to say-

(a) all permanent buildings, including farm houses and farm cottages, necessary for the proper conduct of the agricultural holding;

(b) all permanent fences, including hedges, stone dykes, gate posts and gates;

(c) all ditches, open drains and tile drains, conduits and culverts, ponds, sluices, flood banks and main water courses;

(d) stells, fanks, folds, dippers, pens and bughts necessary for the proper conduct of the holding;

(e) farm access or service roads, bridges and fords;

(f) water and sewerage systems;

(g) electrical installations including generating plant, fixed motors, wiring systems, switches and plug sockets;

(h) shelter belts,

and references to fixed equipment on land shall be construed accordingly;"

[20] Section 88 of the Agricultural Holdings (Scotland) Act 2003 provides:

""This section has no associated Explanatory Notes

(1) Subject to subsection (2), any party to a matter determined by the Land Court by virtue of the 1991 Act or this Act may appeal to the Court of Session against the determination on a question of law within 28 days of the determination; and in an appeal under this section the Court of Session may-

(a) quash, confirm or vary the determination or any part of it; and

(b) where the Court quashes the determination or any part of it-

(i) remit the case to the Land Court for further procedure; and

(ii) direct the Land Court on any question of law relevant to the case.

(2)A determination by the Land Court in an appeal may not be appealed against under subsection (1).

(3)The decision of the Court of Session in any appeal made under subsection (1) is final."

Procedure before the Land Court

[21] The Land Court's order of 25 April 2012 was made after a proof, held in February 2012, on the state of repair of five items of fixed equipment, including the Duntercleuch fence. The proof had been allowed by order of the Court dated 21 November 2011 as a proof before answer in relation to the equipment listed. Having considered the evidence led by parties over seven days, the Court concluded that as at 22 October 2007, other than one section referred to as the "Rylock", the Duntercleuch fence was not in a reasonable state of repair but that it was in no worse state of repair than the then existing fence (the "old fence") had been in 1971, when the PLA had been executed (see Note dated 25 April 2012, paragraph [30]). However, the Court went on to find that the whole of the old fence had been replaced in 1972, shortly after the PLA was made and therefore the Duntercleuch fence was something different from the old fence. The Land Court emphasised that finding in its Note dated 25 April 2012, paragraph 38:

"[38]. In our Note of 3 November 2010 we discussed the issues which might arise where an item of equipment was replaced. We did not attempt to define the circumstances necessary to demonstrate the distinction between renewal and complete replacement. We were satisfied that Parliament would not have intended the matter to turn on a careful analysis of how many old parts were used. A broad approach was required. If a fence was replaced but a significant number of old posts remained in position or if existing wires or netting [were] still used, it would fall to be treated as a renewal. However, the circumstances disclosed in the present case seem far from such a situation. An insignificantly small percentage of the old fencing material may have been used. No one looking at the fence in 1972 would have been in any doubt that the old one had been replaced. We are satisfied that there is no justification for comparing the state of the Duntercleuch fence in 2007 with the fence which there in 1971. It is simply not the same piece of equipment - even if it serves the same purpose and is located on or very close to the one which it replaced."

In its Note of 25 April 2012, prior to its discussion of the Duntercleuch fence, the Court had considered the condition of Muirhead Cottage and the Coshogle water-gate. Having made its findings in relation to the Duntercleuch fence, the Court went on in its Note to consider the state of the drainage in fields 7 and 23, these being the other instances of unreasonable state of repair founded on by the respondents. The Court summarises its findings in relation to four of the five items of fixed equipment at paragraph [65] of its Note. Two items (Muirhead Cottage and the drainage of field 7) were in a reasonable state of repair as at 22 October 2007, and two (Coshogle water-gate and the drainage of field 23) were not in a worse state of repair than they were at the date of making the PLA. Thus, by reference only to these four items, section 5(4B) was complied with. However, the Court's overall conclusion on the consequences of what it had found at the proof, appears at paragraph [66] of its Note:

"[66]. The Duntercleuch march fence is a substantial piece of the fixed equipment. We are satisfied that it was not in a reasonable state of repair on the specified date and that, as the fence as it stood on that date was a replacement fence erected in 1972, it cannot be said that it was in a worse state when the PLA was made. We determined in our Note of 3 November 2010 that it would be sufficient to prevent a tenant from setting aside a PLA if one significant item or part of the relevant fixed equipment was not in a reasonable state of repair at the date selected by him for nullification. It follows that our findings in relation to the Duntercleuch march fence prevent Mr Telfer from setting aside his PLA from 22 October 2007. For reasons discussed in the Note, this may well seem an unsatisfactory result. We have little doubt - having visited the farm in May 2009 - that Mr Telfer has been attentive to his own repairing obligations. Renewal of the fence was a matter for the landlord. However, the provisions of (4B) do not appear to us to allow examination of questions of responsibility for the state of the equipment. We find that the application must be refused."

[22] The Court's approach to the evidence led at the proof and its decision refusing the application, as stated at paragraph 66 of its Note, proceeded on a construction of section 5(4B) whereby "the buildings and other fixed equipment" meant such of the buildings and other fixed equipment which were made subject of the tenant's obligation to replace or renew in terms of the PLA. Therefore all of the fixed equipment subject to the PLA had to be in a reasonable state of repair at the relevant date if the appellant was to comply with section 5(4B)(b)(i), or in no worse state than as the date of the PLA being made, if the appellant was to comply with section 5(4B)(b)(ii). However, on the Land Court's approach, all of the fixed equipment subject to the PLA was not to be looked at as a whole but rather, leaving aside insignificant pieces of equipment, was to be considered on an item-by-item basis, with the result that if one significant item of fixed equipment was found not to be in a reasonable state of affairs then section 5(4B)(b)(i) would not be complied with. Similarly, section 5(4B)(b)(ii) would not be complied with unless each significant item of fixed equipment was not in a worse state of repair than it was when the PLA was made. Moreover, on the Court's construction of the subsection, where an item of fixed equipment had been replaced subsequent to the making of the PLA (but not where it had been renewed) it could not be said to be "not in a worse state of repair" than the equivalent item at the time of the PLA and therefore, in such circumstances, section 5(4B)(b)(ii) had no application.

[23] The Land Court acknowledges this approach and explains how it came to adopt it in paragraph [1] of its Note dated 25 April 2012:

"We heard debates in 2009 and 2010 on issues relating to the proper construction of the new provisions. We concluded that the fixed equipment was not to be looked at as a whole. Regard had to be had to individual items though minor parts could be ignored. Even if a landlord could show that a significant item, or part, of the fixed equipment was not in reasonable state of repair on the specified date, the tenant would still be entitled to succeed if he could show that it was not then in a worse state of repair than it was when the PLA was made. This was in terms of the provisions of sec 5(4B)(b)(ii). But, where the equipment had been installed after the PLA was made, the tenant would not be able to take advantage of these provisions. The equipment in question would not have been there when the PLA was made and it would not be relevant to point to the condition of earlier equipment which had been replaced. We also determined that the concept of 'a reasonable state of repair', in the context of these provisions, was an objective one to be determined by looking at the state of the equipment without regard to the parties' respective responsibilities for maintenance."

Thus, while it was only on 25 April 2012 that the Land Court determined the appellant's application, the construction of the critical statutory provision which informed its approach to determination of the application had been arrived at by the Land Court as a result of earlier procedure, namely the debate which preceded the Court's order and Note dated 6 May 2009 and the debate which preceded the Court's order and Note dated 3 November 2010.

[24] In its Note of 6 May 2009 the Land Court expressed its opinion on a number of matters which had been the subject of debate between parties. For present purposes it is only necessary to note what it said about two matters and that is at paragraphs [147] and [149] of the Note:

"[147] Section 5(4B)(b) should be construed as implicitly limited to relevant buildings and other fixed equipment; in other words to items of equipment affected by the terms of the agreement to be nullified.

[149] The concept of a 'reasonable state of repair' in section 5(4B)(b)(i) is an objective one, to be determined by looking at the state of the equipment without regard to the issue of which party is responsible for its condition. "

The Land Court referred to this as a finding. The making of findings, including the finding set out paragraph [149], is part of the Court's order of 6 May 2009. It is relevant to record what it said, at paragraph [143] of its Note, of the findings that it was about to record:

"Counsel invited us to have in mind the decision of the Inner House on 3 February 2009 in the appeal in SLC/119/07. The Court decided that an appeal could not proceed where it could not identify any determination or definitive decision in the Land Court's Note. It will be for the Appellate Court considering its own jurisdiction to decide what type or types of findings are properly to be regarded as 'determinations' within the meaning of section 88. We, accordingly, avoid use of that word. However, we consider it appropriate to make the following findings based on the foregoing discussion. Our intention in making these findings is to express a concluded view on certain matters of law for the purposes of litigation between the present parties. It may be, of course, that other expressions of view in the Discussion above should also properly be regarded as 'determinations' for the purposes of section 88. We make the following explicit findings purely for avoidance of doubt."

[25] Similarly, the Land Court made findings in terms of its order of 3 November 2010. These are the findings set out in paragraphs [99] to [107] of its Note of the same date. The findings followed a debate on four questions which had been proposed by the Court as a way of focusing certain issues of law outstanding between the parties. After a discussion of these questions, at paragraph [99] of its Note dated 3 November 2010 the Court explains, "it is appropriate to summarise our answers to the four questions in more formal findings or determinations". Among the findings set out in the following paragraphs are these:

"[100] We have concluded that the nature of work done on fixed equipment between the date of the agreement and the date in the tenant's notice is irrelevant to the question of a tenant's entitlement to nullify or set aside a PLA agreement. It does not matter who paid for the work. The test of entitlement depends on objective assessment of the state of particular items of equipment at the two dates.

[101] If an item of equipment, present at the date of nullification, was not present at the date when the agreement was made, [section 5(4B)(b)(ii)] will have no application.

[102] Even if an item of equipment, present at the date when the agreement was made, has been substantially renewed before the date of nullification it will normally fall to be regarded as the same equipment for the purposes of [section 5(4B)(b)(ii)]

[103] If an item of equipment, present at the date when the agreement was made, has been wholly replaced, it will not be available for comparison for the purposes of [section 5(4B)(b)(ii)].

[106] In considering the state of repair of buildings and fixed equipment it is necessary to have regard to each individual item. Although a broad approach to the question may have been intended, that approach must have regard to individual items. Where any significant item is not in a reasonable state of repair, it cannot be said the fixed equipment is in a reasonable state of repair for the purposes of [section 5 (4B)(b)(i)]

[107] When considering [section 5(4B)(b)(ii)] it is necessary to carry out a direct comparison of individual items. In broad terms, if an original item has been replaced by a radically different piece of equipment, [section 5(4B)(b)(ii)] will not come into play in relation to that particular equipment. In other words if such a piece of equipment is not in a reasonable state of repair there will be nothing with which to compare it."

[26] Having set out the Court's findings the Note proceeds to a discussion of future procedure. In terms of that discussion parties are required to lodge pleadings as a basis for the resolution of questions of fact relevant to a determination of the application on the Court's construction of section 5(4B)(b). On finalisation of the pleadings that parties lodged in obedience to what was required by the Note dated 3 November 2010, the Court appointed the proof in terms of order and Note dated 21 November 2011.

The grounds of appeal

[27] The appellant appeals the decision of the Scottish Land Court dated 25 April 2012 on the following grounds:

"The points of law upon which the appeal is to proceed is that the Scottish Land Court erred in law by finding

1.    'that as the relevant equipment' (Duntercleuch March Fence) 'had been put in place after the making of the Post Lease Agreement, no comparison fell to be made under section 5(4B)(ii)' of the Agricultural Holdings (Scotland) Act [1991, as amended]

2.    At paragraph (66) of the order dated 25 April 2012 the Land Court compares the Duntercleuch March Fence at 22 October 2007 with the refurbished fence in 1972, instead of the Duntercleuch March Fence when the lease was signed in 1971 contrary to the law stated at section 5(4B)(b)(ii) - 'if the buildings and other fixed equipment were in an unreasonable state of repair when the agreement was made, they are not in a worse state of repair than they were then'.

3.    That they could consider part of the fence in field 36, ie two parts of the Duntercleuch March Fence as a separate unit of fixed equipment. The unit of fixed equipment was the whole of the fence in field 36 or alternatively the whole of the fences on the farm.

4.    Alternatively, the Court should in considering sections 5(4B)(i) and (ii) have assessed the fixed equipment as a whole and not by a random approach of individual items.

The questions of law for the opinion of the court are:

1.    Can the Duntercleuch March Fence as it stood in 1971 be compared with the fence at the date of the purported termination of the Post Lease Agreement?

2.    Were the court wrong to compare the Duntercleuch March Fence at the purported termination of the Post Lease Agreement with the refurbished fence in 1972?

3.    Were the court wrong in regarding two parts of the Duntercleuch March Fence as a separate unit of fixed equipment instead of the whole of the fence in field 36?

4.    Were the court wrong to consider individual items of fixed equipment rather than looking at the fixed equipment as a whole?"

Submissions of parties

Appellant

[28] Mr Telfer submitted that the Land Court had erred in adopting, for the purpose of determining the application, the construction of section 5(4B)(ii) which it set out at paragraphs [96] and [101] to [103] of the Note attached to its order of 3 November 2010: that the state of the fixed equipment is to be assessed by looking at the individual items making up the relevant fixed equipment; that if an item of equipment, present at the date of nullification, was not present at the date when the agreement was made, section 5(4B)(ii) will have no application; and that if an item of equipment, present at the date when the agreement was made, has been wholly replaced, it will not be available for comparison for the purposes of section 5(4B)(ii). In Mr Telfer's submission, when determining, in terms of section 5(4B)(ii), whether the buildings and other fixed equipment were not in a worse state of repair than they were when the PLA was made, on a proper construction of the subsection one should consider the respective states of all the buildings and other fixed equipment on the holding as at the relevant date and the date of the making of the PLA. Moreover, where an item of fixed equipment had either been renewed or replaced (it mattered not which) subsequent to the date of the PLA, and that item remained in existence as at the relevant date, then the state of that item fell to be compared with the state of the equivalent item as at the date of the PLA. In any event, the principle of unity of contract meant that the landlord was not entitled to rely on its failure (the obligation to renew or replace being on the landlord albeit the tenant had an obligation to meet part of the cost). It was inconsistent of the Land Court to regard the Duntercleuch fence as a separate unit of fixed equipment and yet not to identify and treat separately the stretches of the fence that were in good order at the relevant date. The Land Court's approach was unrealistic. It would be unusual, particularly on a large holding, for at least some items of fixed equipment not to be in poor repair.

Respondents

[29] On behalf of the respondents, Sir Crispin Agnew QC submitted that the appeal was incompetent insofar as relying on grounds 1, 2 and 4 in that the relevant points of law had been determined by the Land Court in its decision of 3 November 2010 which had not been appealed. As far as grounds 1 and 2 were concerned, reference was made to paragraphs [101] to [103] and [107] of the Land Court's Note. Ground 3 did not raise any point of law. As far as ground 4 was concerned reference was made to paragraphs [106] and [107] of the Land Court's Note. In developing his submission, Sir Crispin referred to and adopted the written Note of Argument and Supplementary Note of Argument for the respondents. The appeal was incompetent, being brought out of time in respect of matters which had been determined on 6 May 2009 and 3 November 2010. Section 88 of the 2003 Act replaced the former procedure under section 1(7) of the 1993 Act whereby the Land Court might be required to state a special case on point of law within one month of the relevant decision. There was no further means of challenging what was determined before the Court went on to further procedure. Reference was made to Harvey v MacTaggart & Mickel Ltd 2000 SC 137. The simplified procedure introduced by section 88 of the 2003 Act was not intended to change that. Sir Crispin reminded the court that there was no equivalent in relation to the Land Court of RCS 38.8 (1) which provided, in the Court of Session, that a reclaiming motion shall have the effect of submitting to the review of the Inner House all previous interlocutors of the Lord Ordinary. Esto the appeal was not incompetent, it should nevertheless be refused because the appellant, by proceeding to proof, must be taken to have acquiesced in the decisions which he now sought to appeal. Reference was made to Maclaren Court of Session Practice, p947, Copeland v Lord Wimbourne 1912 SC 355 and Macaskill v Nicol 1943 SC ll. In any event ground 3 did not raise a question of law. It was entirely a matter of fact as to whether the Duntercleuch fence was identifiable as a separate unit of fixed equipment. There was no suggestion that no court could reasonably have come to the Land Court's conclusions. As to the merits of the remaining grounds of appeal, it was Sir Crispin's position that the Land Court had been correct in its construction of section 5(4B). He referred to paragraphs [5] to [27] and [78] to [98] of the Court's Note of 3 November 2010 and, in particular adopted the submissions recorded at paragraph [5] to [8], [20], [79] and [80] and the Court's reasoning at paragraphs [20], [21],[25], [26], and [84] to [96] albeit he did not accept the Court's distinction as between "replace" and "renew" set out in paragraphs [22] to [25] of its Note. The appeal should be refused.

Discussion

Summary of the argument

[30] The appellant appeals a decision of the Scottish Land Court expressed in an order dated 25 April 2012. The critical part of that order is in the following terms:

"FIND that the fixed equipment comprising the Duntercleuch march fence was not in a reasonable state of repair on the date specified by the tenant for nullification of the Post Lease Agreement in terms of sec 5(4A) of the Agricultural Holdings (Scotland) Act 1991, as amended, and that as the relevant equipment had been put in place after the making of the Post Lease Agreement, no comparison fell to be made under sec 5(4B)(ii), and accordingly FIND that the tenant was not entitled to nullify the Post Lease Agreement as at 22 October 2007;"

In support of his appeal, in oral submission the appellant advanced essentially four lines of argument: (first) the Land Court erred in law in having regard to the condition of the Duntercleuch fence because given that contractual responsibility for carrying out the work of renewal of that fence lay with the landlord, this was to allow the landlord to found on its own failures, contrary to the principle of unity of contract; (second) in any event, the Land Court erred in law when considering the state of repair of "the buildings and other fixed equipment" for the purposes either of section 5(4B)(b)(i) or section 5(4B)(b)(ii), by assessing or comparing the fixed equipment item by item rather than assessing or comparing the state of the buildings and other fixed equipment on the holding (insofar as subject to the PLA) as a whole (ground of appeal and question of law 4); (third) even if it were correct to assess or compare the fixed equipment item by item, the Land Court erred in law in identifying the Duntercleuch fence as a separate item as opposed to either all the fencing of field 36 or all the fencing on the holding (ground of appeal and question of law 3); and (fourth) even if it were correct to assess or compare the fixed equipment item by item, the Land Court erred in law, when considering the application of section 5(4B)(b)(ii), by not comparing the state of the Duntercleuch fence with that of the "old fence" which had been in position in 1971 when the PLA was made but had been replaced by the Duntercleuch fence in 1972 (grounds of appeal and questions of law 1 and 2).

The argument not included in the grounds of appeal

[31] I can dispose of what I have described as the first line of argument relatively shortly. As appears from the final paragraph of its Note dated 25 April 2012, the Land Court saw it as somewhat unsatisfactory that a tenant who had been attentive to his own repairing obligations was denied the opportunity offered by section 5(4A) of the 1991 Act by reason of the state of repair of a fence, renewal of which was a matter for the landlord (subject only to a contribution to the cost by the tenant together with the provision of haulage and laying out of materials). On one view the landlords by failing duly to carry out their obligations had deprived the tenant of a benefit that the Scottish Parliament had intended to confer on him by amendment of the 1991 Act. However the Land Court did not see a way open to it to translate its sympathy for the appellant's position into a legal basis for eliding the plain meaning of the statutory provision. No more do I. The application of the principle of mutuality is by no means free from difficulty and while I have endeavoured to articulate the appellant's point as favourably as I can from his perspective, I have not been able to identify a legal proposition which, if applied, would have allowed the Land Court to ignore the state of the Duntercleuch fence at the relevant date. I observe that although the appellant was critical of what he would see as failure on the part of the respondents to carry out their obligations, there is no finding here of breach of contract by the respondents. However, there is a further objection to this line of argument and that is that it is not even hinted at in the grounds of appeal. Each of the other lines of argument advanced by the appellant can be ascribed to one or to more than one of the appellant's grounds of appeal and questions of law as set out in the Form 41.25. The first line of argument is not, and for that reason alone it cannot be entertained.

The competency of grounds of appeal 1, 2 and 4

[32] While the appellant's other arguments support the grounds which appear in his form of appeal, the respondents submit that they also cannot be entertained and that is because the grounds of appeal are said to be incompetent being presented outwith the period of 28 days from the relevant determination which is provided by section 88 of the 2003 Act. Now, the present appeal was lodged with the Court of Session on 22 May 2012. That was within 28 days of 25 April 2012 (and therefore equally within 28 days of the Land Court's decision being communicated to the appellant on 26 April 2012). The respondents do not contend otherwise. Their position, however, is that the points of law on which the Land Court's decision is challenged in the appellant's grounds of appeal were all determined, following debate, in terms of the Court's order and Note dated 3 November 2010. Accordingly, if the appellant had wished to appeal on these points he had 28 days from receipt of the Court's decision dated 3 November 2010. He had not done so. He could not do so now.

[33] RCS 41.5(2)(b) requires a party who wishes to object to the competency of an appeal made under chapter 41 of the Rules of Court to do so by lodging in process and serving on the appellant a note of objection in Form 41.5 at any time before the expiry of the period of 14 days from the date of service of the appeal. The respondents appreciated this but late, necessitating their application in terms of RCS 2.1 for the respondents to be relieved from the consequences of their failure to lodge a note of objection timeously. The application came before Lord Carloway who refused it for the reasons given in his Note of 19 July 2012. Lord Carloway was not persuaded that the appeal was indeed incompetent but indicated that if there was merit in the respondents' contentions they could be addressed by the court at the summar roll hearing.

[34] Consistent with Lord Carloway's opinion, I do not see a failure to serve a note of objection in terms of RCS 41.5 (2) (b) as foreclosing the question of competency of an appeal; the rule simply provides a mechanism whereby competency can be dealt with as a preliminary issue by the procedural judge or, on a reference by the procedural judge, by a bench of three or more judges. I therefore turn to address the respondents' argument that the appeal is incompetent as being out of time.

[35] Section 88 of the 2003 Act provides that any party to a matter determined by the Land Court by virtue of the 1991 Act may appeal to the Court of Session against the determination on a point of law within 28 days. On the face of it that is just what the appellant has done. The measure of what in any particular instance was "the matter determined" by the Land Court must be the order which it pronounces. I take that to be acknowledged by the Land Court in paragraph [143] of its Note dated 6 May 2009. What the Land Court was discussing in that paragraph was the fate of an appeal in another process between the same parties, SLC/119/07. In that process Buccleuch Estates Ltd had appealed to this court (Court of Session reference XA33/08). Sir Crispin, who had appeared in that case also, confirmed that the problem he had encountered in attempting to advance the appeal was that while he wished to challenge the Land Court's interpretation of the law, he did not dispute the correctness of its disposal following a debate, that being to allow proof before answer. This court dismissed the appeal on the grounds that properly understood there was no determination to appeal against. No opinion was issued but that Sir Crispin's recollection is accurate is confirmed by the terms of the interlocutor pronounced by this court on 3 February 2009 in the appeal reference XA33/08:

"The Lords having heard counsel for the appellants and the party respondent personally on the Summar Roll; considering that the 'determination' of the Land Court was that there should be a proof before answer, and given that the appellants now accept that a proof before answer is the appropriate disposal, and given also that the court is not persuaded that it could be said that the Land Court made any other 'determination' or indeed reached any concluded or definitive view on any aspect of the law or as to the proper interpretation of the lease in question; dismiss the appeal and decern."

[36] As I would understand it, it was because the Land Court appreciated that its determinations for the purposes of section 88 of the 2003 Act were what was to be found in its orders and not in mere expressions of opinion in its Notes, that it said what it said in paragraph [143] of its Note of 6 May 2009. It recognised that it would ultimately be for the Court of Session, in exercise of the jurisdiction conferred by section 88, to identify what was and what was not a "determination". However, the Land Court indicated that it was its intention to signal, to the extent that it was able to do so, its concluded views on matters of law for the purposes of litigation between the parties. The expedient adopted by the Land Court was to express its views on matters of law in the form of findings set out in its Notes but then to make these findings by means of its orders.

[37] It is the making of the findings set out at paragraphs [99] to [107] the Land Court's Note of 3 November 2010 that Sir Crispin founded on in support of his submission on competency but if, as must be the case, one looks to the court's order of 25 April 2012 in order to discover what was determined on that day, one finds that the court determined: that the fixed equipment comprising the Duntercleuch fence was not in a reasonable state of repair on the relevant date; that as the fence had been put in place after the making of the PLA, no comparison fell to be made under section 5(4B)(ii); and that accordingly the tenant was not entitled to nullify the PLA as at 22 October 2007. These are precisely the matters which the appellant complains about in his appeal as having been determined by reason of error of law. Accepting that the Land Court expressed its concluded views on the relevant matters of law for the purposes of the litigation between the parties by means of the findings made in its order of 3 November 2010, it was only on 25 April 2012 that it made the determinations that the appellant is interested in challenging. It may be inferred from paragraph [143] of its Note of 6 May 2009 that the Land Court intended to express its decisions in such as way as to allow parties to appeal points of law as they arise in the course of an application, rather than having to wait until the application is concluded. I recognise the value of such a facility. I am prepared to accept that what the Land Court did on 3 November 2010 was to make a determination. It does not however necessarily follow that, just because the appellant could have appealed the court's findings as set out at paragraphs [99] to [107] of its Note dated 6 May 2009 within 28 days of that Note being communicated to him but did not, he is prevented from appealing a later determination by the court, albeit that the later determination was made by applying the interpretation of the law which had been set out in the Note of 6 May 2009.

[38] Sir Crispin cited Harvey v MacTaggart & Mickel Ltd in support of his submission that any determination of the Land Court, including a determination as to what was the proper construction of statute, effectively became final if not challenged within the period allowed for an appeal. Harvey is a case to which section 1(7) of the 1991 Act and rule 88 of the Scottish Land Court Rules 1992 applied. The leading opinion on the question of competency was that delivered by Lord Osborne. Section 1(7) and rule 88 allowed challenge to a determination by the Land Court by requiring a special case to be stated for the opinion of a Division of the Court of Session on a question of law. The applicant had applied to the Land Court for an order finding and declaring that she was the tenant of an agricultural holding, the lease of which was said to have been bequeathed to her by her late father. The respondents resisted the application. While there was no dispute that the Land Court had jurisdiction to determine one of these issues (the suitability of the applicant as a tenant), the parties were in dispute as to whether the Land Court had jurisdiction to determine the other issues. That position was reflected in a plea of no jurisdiction being taken by the respondents. They enrolled a motion to sist the applicant's application to the Land Court, pending determination of the matters in dispute, other than the one issue in respect of which it was accepted the Court had jurisdiction, in another court. That motion was refused on the basis that the Land Court was satisfied that all of the matters in issue in the case fell within its jurisdiction. Following upon that decision, the respondents did not lodge a requisition for the Land Court to state a special case. The application went to proof on all issues. The Land Court determined the application in favour of the applicant. Following intimation of the decision the respondents requisitioned the stating of a special case. One of the questions was whether the Scottish Land Court had jurisdiction to deal with all questions arising in the case? The applicant stated two questions of law, one of which was whether the special case was competent in respect of the question directed at jurisdiction in that the respondents had failed to request a special case within one month of the decision following the application to sist. Answering the applicant's question on jurisdiction in the affirmative, the court held that the special case was competent notwithstanding the respondents' failure to requisition a special case when the point was first decided against them on refusal of the motion to sist. Sir Crispin pointed to the fact that in Harvey, in contrast to the position in the present case, at the proof the respondents' representative had formally restated the submission that the court did not have jurisdiction to deal with all of the matters concerned and the Land Court had expressly found in its most recent decision that it did not find the additional submissions to be persuasive in changing its views to any extent.

[39] Harvey was a decision in relation to different provisions than apply here but rather than supporting the position of the respondents in the present case, as Sir Crispin argued, I would see the opinion of Lord Osborne, with which the other two members of the court agreed, as supporting that of the appellant. The critical passage, which I would see as being the nub of the decision, found at supra 149I to 150A is as follows:

"Having regard to the contents of the Land Court's decision [following proof], which I have described, it appears to me clear that a decision on the issue of the Land Court's jurisdiction to deal with all the questions arising in the case was part of their decision ... Against that decision, in all its parts, including that part, the present special case has been timeously requisitioned."

[40] Applying that approach (considering what "was part of their decision", in other words what it was that was determined in the most recent decision with a view to identifying what may be the subject of challenge on point of law) here, reinforces me in the view previously expressed that what the appellant is seeking to appeal is a matter which was determined by the Land Court's decision of 25 April 2012 and that therefore his appeal is timeous and therefore competent. In my opinion it is not possible to disentangle "how it was decided" from "what was decided". It may be that the Land Court by making the findings it did on 3 November 2010 committed itself to a particular construction of section 5(4A) and (4B) of the 1991 Act and thereby determined how it would decide the issues which emerged in the subsequent proceedings, but on these issues being determined on 25 April 2012 on an application of that construction, the "how it was decided" (the statutory construction adopted by the Land Court on 3 November 2010) becomes part of the "what was decided" on 25 April 2012, or to use the language of section 88 of the 2003 Act, part of "the determination". The determination "in all its parts" may be appealed within 28 days. In my opinion this appeal is competent. Just because much the same points could have been taken on an appeal from the order of 3 November 2010, does not prevent them being taken on an appeal from the order of 25 April 2012.

[41] Sir Crispin further argued that even if the appeal was competent it should not be allowed to proceed because, by implication, the Land Court's order of 3 November 2010 was intended to be a final interlocutor and by participating in the subsequent proof the appellant must be held to have acquiesced in it. He referred to Copeland v Lord Wimbourne and Macaskill v Nicol.

[42] In putting forward this argument Sir Crispin was relying on the proposition that an interlocutor, once acted upon as a basis for future proceedings, may not competently be reviewed. That proposition was considered, in the context of proceedings in the Court of Session, in McCue v The Scottish Daily Record 1998 SC 811 (a five judge decision). In an opinion delivered by Lord Justice-Clerk Cullen the court expressed its conclusion in these terms (supra at 824C):

"It remains for us to say that in so far as the opinions in the decisions dealing with the actings of parties after a prior interlocutor have indicated that subsequent review was excluded as not being 'competent', those observations are disapproved, for the reasons which we have already given. The true question in such cases is not one of competency but of whether the court should exercise the power of review which is available."

Earlier, the Lord Justice-Clerk had said this (supra at 820G):

"Given that there is a competent reclaiming motion, we are unable to accept that the actings of the parties, and of the reclaimer in particular, consequent upon a prior interlocutor, could have the effect of disabling the court from reviewing that interlocutor. It would mean that an interlocutor which was not beyond subsequent review immediately after the expiry of the reclaiming days acquired that quality over the course of time. However, such actings could lead the court to the conclusion that the prior interlocutor should not be interfered with."

The Lord Justice-Clerk also quoted with approval observations by Sheriff Principal Caplan (as he then was) in Newcastle Building Society v White 1987 SLT (Sh Ct) 81 (supra at 821E):

"An interlocutor which holds a defence relevant is intrinsically related to a later judgment which sustains that defence. Viewed another way, if a party fails to appeal a procedural determination in time, such failure may readily be held to be unequivocally referable to acceptance of the procedure in question, because once procedure has flowed it cannot be retrieved. The matter is different when the merits are in issue."

The Lord Justice-Clerk then continued (supra at 821F):

"No general statement can be made as to the facts which will be relevant on either side of the question whether the court should review a prior interlocutor, let alone what facts will be determinative on that question. However, it is plain that, during the course of the proceedings, importance may attach to actings which have followed on the prior interlocutor; and in the end of the day, to the relationship between the prior interlocutor and the final judgment which is the subject of the reclaiming motion or appeal."

Thus, on the appeal of a final judgment, a prior interlocutor may or may not be open to review. It is not a matter of competency. It is a matter of whether the appellate court considers the interlocutor should be subject to review in all the circumstances. If it is purely procedural or otherwise seen to be final or spent it may be that it will be held not subject to review. On the other hand, if it continues to be linked to, or is directly influential in the order which is the subject of a timeous challenge then it may be subject to review. I would see the example given by Sheriff Principal Caplan in Newcastle Building Society v White to be apposite in the present case. Just as an interlocutor which holds a defence relevant is intrinsically related to a later judgment which sustains that defence, a determination that a particular statutory construction is to be adopted is intrinsically related to a later determination which applies that construction to facts found at proof. I would reject Sir Crispin's submission on this point. This is not a case of acquiescence (whatever precisely that might mean) in a purely procedural matter. What the appellant wishes to put in issue is central to the determination which he has timeously appealed.

[43] Accordingly, in my opinion, grounds 1, 2 and 4 are competently before the court.

The competency of ground of appeal 3

[44] In support of ground of appeal 4 the appellant argued that for the purposes of section 5(4B)(c) of the 1991 Act, "the buildings and other fixed equipment" of the holding should be considered as a whole (or at least those subject to the PLA should be considered as a whole) and not as a series of individual items and I shall address that argument presently. However, ground of appeal 3 proceeds on the hypothesis that, contrary to the position taken in ground of appeal 4, it is correct to assess or compare the buildings and other fixed equipment item-by-item with a view to determining whether they are in a reasonable state of repair. On that hypothesis the contention for the appellant is that the Land Court erred in identifying the Duntercleuch fence as a separate item rather than taking as an item either all the fencing of field 36 or all of the fencing on the holding. The ground of appeal asserts that this is an error of law. The respondents in their Note of Argument dispute that. According to the respondents, all the ground of appeal does is to challenge a factual determination; no question of law arises.

[45] I agree with the respondents on this point. It does not admit of much in the way of elaboration. Where an appeal is restricted to a point of law, unless the argument is pitched as high as a contention that no reasonable finder of fact could have come to a particular conclusion, "[it] is not", as Lord Malcolm said in Jardine v Murray 2012 SC 185 at para 80, "a question of whether this Court agrees or disagrees with the decisions taken in the Land Court, but whether there is a material legal flaw in their approach." What is in issue here is whether, assuming it is appropriate to split the totality of the buildings and other fixed equipment on the holding into a number of distinct items for the purposes of assessing their state of repair, the Duntercleuch fence could meaningfully be taken as one such distinct or separate item. That is a factual conclusion to be drawn from the primary facts found by the Land Court on the basis of the evidence led and, importantly, its inspection of Auchengruith. Drawing that conclusion does not require the application of any legal rule or principle beyond the requirement that the conclusion must have a basis in the primary findings of fact. As is pointed out in the Note of Argument for the respondents, it is clear from paragraphs [20], [22] and [39] in the Land Court's Note dated 25 April 2012, that the Land Court did have such a basis. Essentially the appellant's argument was that taking the Duntercleuch fence as a separate item of fixed equipment was no more valid than taking all the fencing of field 36 or all of the fencing on the holding as a separate item. That might be an entirely tenable point of view but it was not the point of view adopted by the Land Court and, given that there were primary facts to support its conclusion, it cannot be said by this court that the Land Court was wrong. I see this as properly a matter of the competency of this ground of appeal. In my opinion, it does not raise a question of law. It is therefore incompetent.

Ground of appeal 4

[46] The Land Court held that for the purposes of section 5(4B)(c) of the 1991 Act, "the buildings and other fixed equipment" under consideration were those subject to the PLA, as opposed to the remainder of the fixed equipment on the holding. That would seem to be right and, in any event, that approach is not challenged in any of the grounds of appeal. I have to confess that I was not entirely clear from what the appellant said as to what he considers to be the fixed equipment which is subject to the PLA but for present purposes that is not important in that there is no question but that the Duntercleuch fence is part of the fixed equipment of the holding which is subject to the PLA and therefore potentially is, as the Land Court held it to be, a separate item within the totality comprehended by "the buildings and other fixed equipment" of Auchengruith. However, in his ground of appeal 4, the appellant argues that for the purposes either of section 5(4B)(b)(i) or section 5(4B)(b)(ii) of the 1991 Act, the condition of the fixed equipment of the holding should, as a matter of law, be considered as a whole and not "by a random approach of individual items".

[47] As previously noted, the Land Court expresses its conclusion on this matter at paragraph [106] of its Note dated 3 November 2010:

"In considering the state of repair of buildings and fixed equipment it is necessary to have regard to each individual item. Although a broad approach to the question may have been intended, that approach must have regard to individual items. Where any significant item is not in a reasonable state of repair, it cannot be said the fixed equipment is in a reasonable state of repair for the purposes of [section 5](4B)(b)(i)."

[48] Before going further it is important to acknowledge the special status of the Scottish Land Court and therefore the status of its decisions when they are brought before this court on an appeal on a question of law in terms of section 88 of the 2003 Act. In paragraph 46 of his opinion in Jardine v Murray supra, the then Lord Justice-Clerk observed, already famously: "The Land Court is not an ordinary court of law." Lord Gill went on to explain that it is a specialist court whose members have expert knowledge. That expert knowledge includes not just the law relating to agriculture but also the practice of agriculture in Scotland. It is informed, inter alia, by frequent inspections of agricultural holdings of the sort that was carried out in this case. In Jardine v Murray the importance of the Land Court's special status related to the respect that this court will accord to its findings in fact but in my opinion the deference which this court should show towards the Land Court goes further than that. What is in issue here when considering ground of appeal 4, and indeed when considering grounds of appeal 1 and 2, is the construction of relatively recently enacted statutory provisions, the application of which fall particularly within the jurisdiction of the Land Court and which relate, at the practical level, to matters of which the Land Court has an expert knowledge which this court does not profess: cf Jardine v Murray supra at para 49. Thus, while this court might regard itself as entirely competent in the techniques associated with the generality of statutory construction, it appears to me that it should exercise a degree of caution in differing from a construction adopted by the Land Court where that construction has been informed by the Land Court's understanding of the practical effect of the construction not only in the case under consideration but in other cases.

[49] Returning then to section 5(4B)(b) of the 1991 Act, the Land Court's reasoning which led to the construction that the state of the fixed equipment was to be assessed by looking at the individual items making up the relevant fixed equipment rather than looking at the equipment as a whole is set out at paragraphs [84] to [96] of its Note dated 3 November 2010. In my opinion, that reasoning is compelling. I agree with the conclusion.

[50] The proper objective when construing a statutory provision is to arrive at its legal meaning, the legal meaning being that which correctly conveys the legislative intention: Bennion On Statutory Interpretation (5^th edit) pp24 and 441. That is of course not to say much more than that the provision means what the Scottish Parliament intended it to mean, which might be said simply to be a restatement of the objective rather than an explanation of how one gets there. There will be cases where Parliament's purpose in enacting the legislation can be identified from extrinsic material, including the Explanatory Notes which are, in the majority of cases, now published together with bills. Once the legislative purpose is known it becomes possible to adopt a purposive approach to construction. This, however, was not a case where either party made reference to extrinsic material or, indeed, except insofar as it could be inferred from the text of the statutory provisions themselves, to what was the purpose of Parliament in enacting the 2003 legislation. That placed the focus on the grammatical or linguistic meaning of section 5(4B)(b) and therefore the ordinary meaning of the phrase "the buildings and other fixed equipment", in its proper and most known signification, read in the context of the statute taken as a whole: cf Bennion supra pp441, 443, 1181. As I have said, neither party put anything before either the Land Court or this court with a view to identifying the purpose or policy which the 2003 Act was intended to put into effect but a certain amount is readily apparent from the text. The 1991 consolidation of the legislation had re-enacted the prohibition against contracting out, by way of the terms of the lease, of the landlord's deemed obligation to put the fixed equipment on the holding into a thorough state of repair and thereafter to replace and renew it as that became necessary. However, the consolidation had also retained a provision (section 5(3)) which permitted parties to allocate the obligation to replace and renew to the tenant, through the mechanism of a post-lease agreement. The 2003 legislation can be seen as reflecting a change in policy towards one that favoured the obligation of replacing and renewing fixed equipment being borne by the landlord. That would seem to be clearly articulated by subsections (4C) and (4D) of section 5. Subsections (4A) and (4B) have something of the nature of a transitional function: they permit a tenant to transfer the obligation to replace and renew fixed equipment back to the landlord but subject to the fixed equipment being in a reasonable state of repair or at least in no worse state of repair than it was when the tenant assumed the obligation by way of a post-lease agreement. That context appears to me to fit with the notion of a "fresh start" referred to by the Land Court (first mentioned at paragraph [13] of its Note dated 3 November 2010). In other words if the landlord can be forced to assume an obligation of replacement and renewal, it would seem fair that that should be in respect of fixed equipment that is in at least reasonable condition or, if not, in no worse condition than the fixed equipment was when the tenant took on the obligation under a post-lease agreement. The Land Court considered that the idea of a "fresh start" fitted better with an item by item construction of "the buildings and other fixed equipment". I would agree. The Land Court recognised the force of the appellant's submission that in a practical sense it might be difficult to ensure that every last item was in a reasonable state of repair given that a tenant would maintain the fixed equipment on a cyclical basis. However, that, in the view of the Court, was not the proper focus. While, as had been argued on behalf of the respondents, a broad or robust approach to the assessment of the condition of individual items would be appropriate and might in part address such problems, the critical context was not one of regulating the practical day to day working of the farm but one of the setting aside of contractual arrangements negotiated by the parties to regulate their affairs. Parliament was dealing with a situation where the existing contractual obligation on the tenant was to effect necessary replacement or renewal of all the relevant items of equipment. In that context, it was quite reasonable to require the performance of current obligations to be up to date. Again, I would agree. An obligation to replace and renew specified fixed equipment when necessary is an obligation to replace or renew every item of fixed equipment when necessary. There is no very obvious reason why the landlord should not require the obligation to have been fully performed by a tenant who has undertaken it by entering into a post-lease agreement before having to resume the obligation on a section 5(4A) nullification.

[51] Developing its idea of a "fresh start", the Land Court drew attention to the consideration that a tenant may have paid rent over many years fixed on the assumption that the tenant had onerous commitments. On nullification a landlord might find these commitments to have become unenforceable. A construction which required every piece of equipment to be in a reasonable state of repair would tend to minimise that particular risk. The Land Court thought that approach to be consistent with what was proper when rights are removed retrospectively. That seems to me to be valid.

[52] In at least two respects I would see the Land Court's construction as being reinforced by it having drawn on its legal and practical expertise. Referring to its previous decision in another litigation between the parties, Telfer v Buccleuch Estates Ltd 2005 SLCR 51, the Court was able to say with a confidence which a non-specialist court would find difficult to emulate that it was not aware of "any concept of fixed equipment as a totality having been applied in any case in Scotland relating to repair obligations in an agricultural context", and "although not free from difficulty in its application, the practice has been to assess the repair obligation by reference to identifiable individual items of fixed equipment". The Court added that it was satisfied that the provisions of section 5(2) have always been understood in this sense. These are quite powerful statements. The Land Court was in a good position to make them. I take them to be an accurate summary of the understanding of the concept of fixed equipment and the approach to the assessment of its condition in practice and therefore, to revert to Bennion's language, the "proper and most known signification" of the relevant expression. The second respect in which the Land Court was able to reinforce its construction by drawing on its own particular expertise was at paragraph [92] of its Note when it had regard to the practical implications of the construction urged on it by the appellant. In the view of the Court it became clear that the appellant's construction did not in fact provide a robust approach in the sense of being one which is capable of being easily applied in practice with tolerably consistent results. Looking at matters as a whole invited attention to fractions or percentages. The approach would require consideration of the proportion of equipment which was in a reasonable state of repair as opposed to that which was not. That raised a number of questions. For example, was the percentage to be assessed by reference to the value of the whole fixed equipment in question or, perhaps, to the number of separate identifiable items making up that totality of equipment? It would, on any view, require consideration initially to be given to the state of individual items. At any given time the bulk of the fixed equipment on the farm would be expected to be in a reasonable state of repair. The focus of attention would not be on the equipment as a whole but on the items needing renewal.

[53] I would add this. In the present case it would appear that no record of the condition of the fixed equipment on the holding was made when the lease of Auchengruith was entered into. That was a matter of complaint by the appellant, because section 5(1) of the 1949 Act required such a record to be made forthwith with a view to it being deemed to form part of the lease. The same requirement appears in the 1991 Act. Thus, while in the present case there was no record of the condition of the fixed equipment and while that may be so in many other cases, the paradigm that the legislature will have had in view when enacting section 5(4B)(b) is one where there will be a record of the condition the fixed equipment as at the date of entering into the lease. While section 8 of the 1991 Act, which applies to the making of such a record does not expressly so state, I find it very difficult to imagine a record of the condition of the fixed equipment on the holding which has not been drawn up on an item-by-item basis. If I am correct about that then the legislative intention would be best reflected in an item-by-item approach to the determination of whether the buildings and fixed equipment are in reasonable or unreasonable state of repair.

[54] The Land Court concluded that part of its Note dated 3 November 2010 which gives its reasoning for the adoption of an item-by-item construction of section 5(4B)(b) as follows:

"[96] In short, we conclude that the state of the fixed equipment is to be assessed by looking at the individual items making up the relevant fixed equipment. We are satisfied that in the context of the range of the fixed equipment likely to be covered by any PLA it is appropriate to apply a very broad approach. We accept that Parliament must have been intending to address issues of substance. The expression "reasonable state of repair" can be considered broadly. Even if some parts of the fixed equipment are worn out, if they are minor parts, we accept that, in the context of this provision, they can be ignored. But, if there is any significant amount of work to be done to put any individual item into a reasonable state of repair, that will normally prevent the "buildings and fixed equipment" from being in a reasonable state of repair within the meaning of (i)."

As I have already indicated, I consider that to be the correct approach to the subsection. It is consistent with the ordinary meaning of the words. It gives the concept of "the buildings and other fixed equipment" the meaning which was attached to it in agricultural law and practice prior to the amendment of the legislation by the 2003 Act. It is workable and it reflects how assessments and comparisons of fixed equipment are likely to be carried out in real conditions. It is likely more closely to achieve the symmetry as between the situation on entering into a post-lease agreement and the situation on annulment of the agreement which would seem to be the intention of the legislature than would the suggested alternative.

Grounds of appeal 1 and 2

[55] I would understand grounds of appeal 1 and 2 and the associated questions of law 1 and 2 which appear in the appellant's Appeal, all to relate to one contention: that, even if it were correct to assess or compare the fixed equipment item-by-item, the Land Court erred in law, when considering the application of section 5(4B)(b)(ii), by not comparing the state of the Duntercleuch fence with that of the "old fence" which had been in position in 1971 when the PLA was made but which had been replaced by the Duntercleuch fence in 1972.

[56] As previously noted, the Land Court expresses its conclusion on this matter at paragraph [107] of its Note dated 3 November 2010:

"When considering [section 5(4B)(b)(ii)] it is necessary to carry out a direct comparison of individual items. In broad terms, if an original item has been replaced by a radically different piece of equipment, [section 5(4B)(b)(ii)] will not come into play in relation to that particular equipment. In other words if such a piece of equipment is not in a reasonable state of repair there will be nothing with which to compare it."

[57] Again, the point of law raised by the grounds of appeal is one of statutory construction.

[58] On the item-by-item approach to the fixed equipment adopted by the Land Court (which I consider to be correct) there is no question but that the Duntercleuch fence was not in a reasonable state of repair (and therefore was in an unreasonable state of repair) as at 22 October 2007. Subsection (4B)(b)(i) is therefore not complied with. What then about subsection (4B)(b)(ii)? It will be recollected that there would be compliance with subsection (4B)(b)(ii) for present purposes if the item of fixed equipment was not in a worse state of repair than it was on the date when the post-lease agreement was made. The Land Court said that subsection (4B)(b)(ii) had not been complied with. In its summary of formal findings in relation to the interpretation of subsection (4B)(b)(ii) set out in its Note dated 3 November 2010 the court had included the following:

"[101] If an item of equipment, present at the date of nullification, was not present at the date when the agreement was made, (ii) will have no application.

[102] Even if an item of equipment, present at the date when the agreement was made, has been substantially renewed before the date of nullification it will normally fall to be regarded as the same equipment for the purposes of (ii).

[103] If an item of equipment, present at the date when the agreement was made, has been wholly replaced, it will not be available for comparison for the purposes of (ii)."

I do not see paragraphs [101] or [102] presenting difficulty. Paragraph [103] is perhaps more problematic. At least on the court's approach, it depends upon a distinction between "replacement" and "renewal" which, in this context, I simply do not see to be warranted. It was not supported either by the appellant or Sir Crispin on behalf of the respondents, either before the Land Court or before this court (Sir Crispin's argument being that the Duntercleuch fence was not available for the purpose of comparison irrespective of whether it was to be regarded as a replacement for the old fence or whether it was a renewal of the old fence).

[59] "Replacement" and "renewal" and their corresponding verbs are clearly capable of having different meanings or at least different shades of meaning. One need not go further than section 5(4A) of the 1991 for support for that proposition in that one there finds the expression "replacement or renewal of the building or other fixed equipment". That both words are used suggests that they have or may have different meanings and that that is so in the context of the maintenance of fixed equipment. Equally, a particular physical operation may be better described as a "replacement" than as a "renewal". Sometimes that will be very clearly so, sometimes it will be less clearly so. However, whether legal significance should be attached to such linguistic subtleties is another matter.

[60] The submission made to the Land Court on behalf of the respondents by Sir Crispin and renewed before this court is recorded at paragraphs [5] to [8] of the court's Note dated 3 November 2010. Subsection (4B)(b)(ii) was dealing with the buildings or fixed equipment that existed at the time the agreement was made. The use of "the", "they" and "them" where these words appeared made this clear. This was logical where the tenant had the renewal or replacement obligation. Under section 5(4B)(b)(i) the tenant had to hand over the buildings and fixed equipment that he was responsible for in a "reasonable state of repair", and under section 5(4B)(b) (ii) to hand back the original buildings and fixed equipment in no worse state of repair. It was illogical to construe section 5(4B)(b)(ii) to the effect that if the fixed equipment had been replaced by a new item of fixed equipment, the tenant should be allowed to let it fall into the same state of disrepair as the former items of fixed equipment had been at the outset of the lease. The sensible approach was that, if something new had been interposed, it was reasonable to have regard to it. That applied even if the new equipment had been provided by the tenant. The old equipment should be regarded as having been superseded as redundant. It was no longer part of the fixed equipment. On any view, the original equipment, as it was at the outset, was no longer there. There was nothing to compare for the purposes of section 5(4B)(b)(ii). Accordingly, the tenant could only rely on section 5(4B)(b)(i). Sir Crispin accepted that this meant that, if a tenant had managed to get by, doing minimum repairs, he would be able to rely on section 5(4B)(b)(ii). But, if he had actually renewed existing equipment, he could only rely on section 5(4B)(b)(i) as the old equipment would not be there for comparison. This was justified because the tenant should be seen to have done any renewal "on the landlord's behalf". It did not matter who had actually done the work. It was a landlord's obligation which had been taken over by the tenant.

[61] The appellant's submission to the Land Court is recorded in paragraph [10] of the court's Note.

[62] The Land Court was not persuaded by the respondents' submission but clearly had difficulty in identifying a satisfactory alternative approach. At paragraphs to [11] to [17] of its Note the Court discusses how section 5(4B)(b)(ii) might impact on different post-lease agreements in differing situations but without coming to any conclusion which assisted it in construing the provision. At paragraph [22] the court admits its difficulty in identifying the precise policy behind section 5(4B)(b)(ii) and at paragraph [24] it rejects considerations of reasonableness or fairness as a means of discerning the intention of Parliament. With that by way of background the Court adopted what it described as "a practical approach to the concept of identity", the ramifications of which, with the consequent distinction between "replacement" and "renewal" are explored in paragraphs [21] to [26].

[63] I agree with the Land Court that central to an understanding of the meaning of section 5(4B)(b)(ii) is the concept of identity. That must be so on the ordinary meaning of the statutory language, certainly once "the buildings and other fixed equipment" is construed as a reference to the individual items of fixed equipment which are subject to the post-lease agreement. That is because the provision requires a comparison of the state of what, in some sense, is the same item at different points of time. Only if, in some sense, a particular item of fixed equipment that exists at the notice date is the same item of fixed equipment that existed at the post-lease agreement date can the exercise of comparison required by "not in a worse state of repair" be carried out. For the Land Court "identity" means that the items of fixed equipment must constitute one and the same physical object, subject to a degree of leeway provided by a construction of "renewal" as something less fundamental than "replacement", albeit that "there is plainly scope for much philosophical discussion of the concept of continuing identity" (see Note paragraph [20]) as the component parts of, for example, a fence, are incrementally substituted by new components as the former components fall into disrepair.

[64] I find the Land Court's emphasis on physical identity unconvincing and unnecessary. In my opinion, a more natural reading of section 5(4B)(b)(ii) is one pointing to identity of function rather than identity (more or less) of constituent parts as determining whether an item of fixed equipment present at the notice date is available for comparison with an item of fixed equipment present at the post-lease agreement date. I am encouraged in coming to that view by what is said about fixed equipment in sections 5(2) and 85(1) of the 1991 Act. "Fixed equipment" is given a wide definition in section 85(1) as including various things, from farm houses to plug sockets which, whether the expression is attached to them (as it is at section 85(1)(a) and (d)) or not are "necessary for the proper conduct of the ...holding". Similarly, the obligation on the landlord which is deemed by section 5(2)(a) is to put the fixed equipment on the holding into a thorough state of repair, and to provide such buildings and other fixed equipment "as will enable an occupier reasonably skilled in husbandry to maintain efficient production". As is perhaps no more than self-evident, the fixed equipment of a holding is made up of items with a function, the function being, in ways specific to the specific items, to enable the holding to be used for efficient agricultural production. With that in mind and remembering also that the legislature envisaged that there would always be a record of the condition of the fixed equipment on the holding and therefore something of the nature of a list of the items of fixed equipment available for various necessary agricultural purposes at the commencement of the lease, I would regard the natural meaning of "the buildings and other fixed equipment ...when the agreement was made" and "they" where that word second occurs in section 5(4B)(b)(ii) as being those items which, as at the date of the post-lease agreement, were performing the function associated with such items in such locations as they were situated. Similarly, I would regard "they" where that word first occurs in section 5(4B)(b)(ii) as meaning those items which, as at the notice date are performing the function associated with such items in such locations. Thus, if, for example, a march fence is located at a particular boundary at the notice date, for the purposes of section 5(4B)(b)(ii) its state of repair may be compared with the state of repair of the fence which was in that location performing that function at the post-lease agreement date. It will not matter whether the march fence at the notice date is composed of exactly the same stobs and wires as the march fence at the post-lease agreement date or whether some of the stobs and wires are different from the originals or whether all of the stobs and wires are different. In this example I mention location, which in the case of a fence I would suppose will generally be of relevance, but what I see as the key to determining identity of items of fixed equipment is function. If the item of fixed equipment is performing the same function at the notice date as an item of fixed equipment at the post-lease agreement date then the items are sufficiently identical to allow comparison of their respective states of repair for the purposes of section 5(4B)(b)(ii). On this construction no significance attaches to such distinction as there may be as between "replacement" and "renewal". That is a consideration which tends to confirm me in my conclusion. Agreeing with both the appellant and Sir Crispin, I see the distinction, over which the Land Court agonised, as a distinction without a difference. As I read the Act, the proper distinction is between maintenance in the sense of keeping in good repair, on the one hand, and replacement or renewal, on the other, but, for the purposes of the statute, "replacement" and "renewal" are the same thing, or at least describe the same obligation and have the same effect.

[65] I am conscious that by adopting a different construction of the statute than that adopted by the Land Court I may be seen to be offending against the principle that, in this area, this court should accord particular deference to the undoubted experience and expertise of the specialist court. I would however observe that in this instance, in adopting the construction that it did, the Land Court placed no reliance on policy or practical effect. Its analysis would appear to have been entirely linguistic and philosophical. I have therefore felt emboldened to substitute what I consider to be the correct interpretation of the statute.

[66] Given the Land Court's finding, at paragraph [30] of its Note dated 25 April 2012, that at the relevant date the Duntercleuch fence was in no worse state than the old fence had been in 1971, on what I see as the correct construction of the provision, the requirements of section 5(4B) were complied with in respect of the items of fixed equipment the condition of which was considered at the proof. The Land Court's determination must therefore be quashed. I understood from Sir Crispin that the respondents have reserved their right to challenge the appellant's entitlement to nullify the PLA by reference to other items of fixed equipment. That will be a matter for the Land Court when the case is remitted back.

Disposal

[67] This court has power in an appeal under section 88 to quash, confirm or vary the determination complained of or any part of it. Where the court quashes the determination or any part of it, it may remit the case to the Land Court for further procedure and direct the Land Court on any question of law relevant to the case. Consistent with the views expressed in this opinion I would move your Lordships to quash the determination of the Scottish Land Court of 25 April 2012 insofar as it finds that no comparison falls to be made of the Duntercleuch fence and the old fence under section 5(4B)(ii) of the Agricultural Holdings (Scotland) Act 1991 and that accordingly the tenant was not entitled to nullify the Post Lease Agreement as at 22 October 2007; to direct the Land Court that a comparison does fall to be made of the Duntercleuch fence and the old fence under section 5(4B)(ii) of the Agricultural Holdings (Scotland) Act 1991; and, quoad ultra, to remit the case to the Land Court for further procedure as accords.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Menzies Lord Brodie Lord Malcolm	[2013] CSIH 47 XA89/12 OPINION OF LORD MALCOLM in the appeal by THOMAS GORDON TELFER Appellant; against THE BUCCLEUCH ESTATES LIMITED Respondents: _______________

Appellant: Party

Respondents: Sir Crispin Agnew, QC; Anderson Strathern

31 May 2013

[68] I have had the benefit of reading in draft the opinion prepared by Lord Brodie. I have reservations as to the "item by item" approach to the construction of the relevant statutory provisions. However, I do not intend to dissent from the view taken by his Lordship in the discussion of ground of appeal 4. It supports the approach adopted by the Land Court, which, as a specialist court, has given the matter the most careful and anxious consideration. My only comment is that it is far from clear that the drafters of section 5(4B) of the 1991 Act had in view the potential diversity of post-lease agreements, not least those which, as here, place a financial liability on the tenant, with the landlord retaining executive responsibility for repairs. The statutory tests appear to proceed upon the basis of a relatively simple situation, with the tenant assuming all duties concerning the replacement or renewal of all the fixed equipment on the holding. Unfortunately the real world is likely to be more complex, and this may create difficulties for the Land Court when attempting to apply the legislation.

[69] I need not dwell on ground of appeal 4 given that Lord Brodie's views on the other matters, with which I am in entire agreement, are sufficient to dispose of this appeal in favour of Mr Telfer. In the course of the hearing, counsel for the respondents indicated that, if the appeal were to succeed, and notwithstanding the protracted nature of the proceedings so far, he would be moving the Land Court to allow an inquiry into whether nullification could be resisted by reference to other parts of the fixed equipment on the farm. It seems likely that, when making a selection of certain items for consideration by the Land Court, the landlords chose those which were most likely to result in a favourable outcome. In the result they have failed in all of them. However, if and when an application is made, it will be for the Land Court to decide whether such further procedure is to be allowed. I agree that the appeal should be dealt with as proposed by Lord Brodie.