NEWS FROM THE COURTS
COURT ROUND UP June 2010
There is a mixed bag of cases to report this month while we await the decision in the appeal of the inheritance tax case of Brander (Lord Balfour’s Executors). Just as this goes to press, we have heard that the Land Court has issued its decision in the important rent review case of Morrison-Low v Paterson’s Executors and a report of the important issues will follow in the next issue of Land Business. Lord Gill, the acknowledged judicial expert on Agricultural Law in Scotland, has given a strongly worded judgement (Loudon v Hamilton) in refusing an attempt by a grazing tenant to claim a secure tenancy.
Sheriff Principal Dunlop has held that the prevention of the right to fish for salmon by fly (as opposed to by spinner) does adversely affect the full enjoyment of salmon fishing rights and the Sheriff Court in Haddington has imposed a substantial fine on a farming partnership for breach of Health and Safety at Work legislation. Members may also wish to note that I am aware of two Scottish cases before the Commissioners where HMRC has failed in its attempts to extract penalties from executors for “negligent estimation” of property values when lodging the inventory of an estate. If executors are faced with HMRC attempts to apply penalties following the adjustment of values with the District Valuer, professional advice should be taken in the light of these decisions before such penalties are settled.
LOUDON V HAMILTON AND OTHERS [2010] CSIH 36 This case was appealed from the Land Court to the Inner House of the Court of Session. Loudon had claimed a secure 1991 Act tenancy and had also claimed £54,000 for the failure of the landlord to provide fixed equipment. The Land Court had granted an interim interdict due to “ongoing harassment” without a hearing. This interdict remained in
TUMMEL VALLEY LEISURE LIMITED V SUDJIC [SE 10/08] This case was an appeal from the decision of the Sheriff. TVL owns salmon fishings from both banks of the River Tummel and may fish for salmon by any lawful means, which include fishing by fly or spinner. Sudjic, in 2003, erected decking over the bank of the river adjacent to his house. This structure extends over the river bank for approximately eight metres and is supported at its outer end by a steel girder resting on three cast iron poles set into the bank. TVL considered the decking to be an obstruction preventing their enjoyment of the full extent of their right to fish.
The Sheriff had found that:
◆the decking did not materially interfere with the right to fish ◆the right to fish had to be exercised in a manner least
force from May 2006 to April 2008. The landlord claimed that he had
given Loudon a series of grazing lets over parts of the land, it being understood by both parties that the lets would not create a protected tenancy. The Land Court held that no secure tenancy existed. The Inner House agreed that there were three good reasons for the Land Court to reject the claim that there was a secure tenancy: 1. Loudon had not persuaded the Court he was a reliable or credible witness.
2. There had been no objection to any of four sales of land which had originally been part of the grazing agreement and the tenant had not objected to the demolition of buildings. 3. The IACS application had been submitted in each of four years on the basis of land held under a short term or seasonal let. Lord Gill said that: “This
application is another opportunistic attempt by a grazing tenant to
LANDBUSINESS ISSUE 36 JUNE-JULY 2010
prejudicial to the rights of Sudjic as a riparian owner while being consistent with TVL’s enjoyment of the full beneficial use of the right to fish.
The view of the Sheriff appeared to be that the beneficial enjoyment of the right of fishing for salmon can be satisfied as much by the ability to fish by spinning as by the ability to fish by fly. Sheriff Principal Dunlop held that
acquire a tenancy to which he had no right.” He considered the actions of the tenant to be “deplorable” and “scandalous” and criticised the pleadings as being confused. The Court concluded that agreement had indeed been reached that the lease was to be for less than a year and that there could not, therefore, be a secure tenancy. Lord Gill also gave some strong advice to the Land Court that interim interdict should only be granted in real emergency and after hearing submissions from the applicant, and, in the absence of such emergency, to hold a hearing after giving notice to the other party, to apply a stringent test in assessing the reliability of representations and to consider requiring caution (a guarantee for expenses) to be lodged.
HMA V HAMILTON FARMERS (EAST LOTHIAN)
At Haddington Sheriff Court on
the Sheriff was incorrect and that, although there was no evidence led that the inability to fish by fly had resulted in an economic loss, there is a distinction between fishing by fly and by spinner and that the prevention of fishing by fly deprived TVL of its full beneficial enjoyment of the right to fish for salmon. Accordingly, the Sheriff ordered that the decking be removed.
26 April 2010, the firm of Hamilton Farmers (East Lothian), pled guilty to a breach of section 2(1) of the Health & Safety at Work etc Act 1974. On 3 June 2008, during the construction of walls for a cattle enclosure, a farm worker was fatally injured when a concrete wall panel he was manoeuvring into place toppled onto him.
The partnership accepted that the job had been inadequately planned, no risk assessment had been carried out, the system of work employed was unsafe and unsuitable lifting equipment had been used. The Sheriff imposed a fine of £20,000.
Space prevents a full analysis of these cases. This article has been written in general terms only and the SRPBA strongly recommends specific advice is sought by members rather than relying on a summary of these cases.
LB
Richard PJ Blake WS, SRPBA Legal Adviser
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