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Professional briefing Agriculture Tackling improvements The Land Court has clarified the approach to be adopted in considering tenants’ proposed part II improvements Practitioners will know that, to preserve his right to compensation at waygo, the tenant of an agricultural holding requires to give notice, under s 38(1) of the Agricultural Holdings (Scotland) Act 1991, “of his intention to carry out… [an improvement]… and of the manner in which he proposes to do so”. Section 39 allows the landlord to give counter-notice objecting to the improvement or the manner in which it is to be carried out. The tenant may then seek the Land Court’s approval of the proposed improvement. This may be given unconditionally or on terms (including a reduction in the potential compensation), or withheld. These provisions were considered by the court in R & M Whiteford v Trustees for Cowhill Trust (Application RN SLC/174/08), 29 July 2009. Messrs Whiteford, a limited partnership, were tenants of four Dumfriesshire farms collectively known as “Abbey Farm” and two further holdings, under a 40 year lease from 1987. They ran the holding collectively as a dairy farm. They served notice of their intention to install a “voluntary milking system” (VMS), comprising a number of robotic milking units. Following a counter-notice they applied to the court for approval. Defective notice? The landlords argued (i) that the tenants’ notice was so deficient in its description of the work and how it was to be carried out that it was invalid; and (ii) that the improvement would lead to over-capitalisation of the holding. The notice was attacked on several fronts, including that it did not disclose the number of VMS units proposed and, to summarise, that discrepancies on methodology 46 / theJournal December 09 between the notice, a later notice (subsequently withdrawn) and the planning application made it impossible for them to know the tenants’ true intentions. The court held that, in deciding on the validity of a s 38 notice, it could not look beyond the four corners of the notice itself. The only criticism in that respect was failure to specify the number of units, which the court regarded as a point of detail, given that it was clear what kind of system was to be installed. (The omission was made good on the evidence, but this did not sway the court.) It did, however, observe that it is in the tenant’s interests to make a notice full and detailed, not only to avoid it being challenged as such but to avoid the risk that some element of the improvement is not eligible for compensation at outgo, because the landlord has been given insufficient notice. Test for approval On the landlords’ second objection, the court held that the test in The court viewed this as an objective test to be applied without regard for what it thought the applicants should be doing or might do instead assessing whether it should approve (unconditionally or on terms) or disapprove an improvement was the formulation in Gill, Agricultural Holdings (3rd ed), distilling previous case law: whether it was “reasonable and desirable” on agricultural grounds for the efficient management of the holding. The court viewed this as an objective test to be applied without regard for what it thought the applicants should be doing or might do instead. In any given situation there might be a range of possibilities (from “adventurous” to “safe”), all of which were reasonable. However, it then appeared to contradict itself by observing obiter that it was entitled to refuse consent if, in all the circumstances (including the availability of the alternative), it considered that there was an alternative which was clearly preferable to the tenant’s proposal, albeit both were reasonable on their own terms. Although the court found that the VMS was not the only means available for improving the efficiency of Whitefords’ dairy enterprise and that what was proposed was financially the more risky of the options available, it was nevertheless reasonable and desirable on agricultural grounds for the efficient management of the holding and, accordingly, should be approved. As a subsidiary issue, the landlords argued for a reduction in the tenants’ ultimate claim for compensation, since a clause in the lease that the two holdings were to be used “as livestock and cropping units” meant that the court, in applying the reasonable and desirable test, had to confine itself to Abbey Farm: the other units could not be used for grazing dairy stock, or growing feed for dairy cattle elsewhere, and could, accordingly, not be taken into account in assessing the carrying capacity of the holding for dairy purposes. The court, however, inferred that the restriction prohibited use as dairy units as such, but not use for anything to do with dairying, however remotely, and grazing and cropping for dairy stock was permitted. The case, accordingly, covered a wide range of interesting points – in particular the court’s exposition of the test to be applied to a proposed improvement and its observation on the framing of a tenant’s notice in order to preserve the right to compensation, although this restates what I have always understood to be best advice. Alasdair G Fox, Anderson Strathern LLP www.journalonline.co.uk
Can rules be devised to protect the integrity of sporting contests by ordering replays, or allowing television evidence to inform refereeing decisions? In the wake of Les Bleus’ questionable triumph over the Republic of Ireland in the playoff match to reach FIFA’s 2010 World Cup finals, the game of football has come under significant scrutiny. The goal that France scored to decide the contest was clearly shown by television to have involved the football connecting with a French player’s hand, twice, unseen by the referee, in the immediate buildup to the crucial goal being scored. If spotted, the goal would not have stood. This “injustice” led to the Republic’s football association and politicians calling for a replay. FIFA are considering the introduction of a rule allowing for replays in their tournaments, and possibly the introduction of television replays and further match officials for the 2010 finals, to improve the quality of decision making during the sporting contest. A replay rule? Is a replay rule likely, or indeed desirable? Apart from the obvious significant practical difficulties of organising a replay within a congested fixture list and securing the release of players (whose release from club football can only be compelled during specific “international” fixture windows), a rule would be inherently dangerous for the sporting body using it. It would grossly undermine www.lawscotjobs.co.uk Camera angles In American football, played under the auspices of the NFL, the use of television is more widely available. Teams have the ability to issue a set number of challenges to refereeing decisions Professional briefing Sport the role of the match officials and the concept of finality enshrined in the Laws of the Game, per law 5: “The decisions of the referee regarding facts connected with play, including whether or not a goal is scored and the result of the match, are final”. This principle is echoed in many different sports and is regularly upheld by the refusal of the Court of Arbitration for Sport and the Olympic Association to allow any challenge, whether direct or indirect, to sporting decisions that are taken on field and in play. Generally, the civil courts have been very content to decline to interfere in sport by reviewing “sporting decisions”. In any rule that would allow FIFA to intervene and order a replay, some form of discretion would likely be necessary and FIFA would, in exercising that discretion, leave itself open to challenge on the decision making process. Otherwise the agreement of both participating sides would be required. In the writer’s view, FIFA is likely to be very reluctant to introduce a replay rule. TV evidence and additional officials? Televised broadcasts of football matches have become widely available through terrestrial television, satellite television, internet streaming and now even iPhones and other handheld devices. The wealth of English soccer is underpinned by significant broadcasting agreements. Sponsors are drawn to televised matches. Managers, pundits and the public alike believe that the introduction of a television match official is inevitable and only a question of time, to help preserve the sporting contest’s credibility. However, the question that FIFA will ultimately have to answer in considering whether to introduce video evidence, is the extent to which it should be used; and how to translate that into a meaningful and certain sporting law. In rugby union a “television match official” (TMO) is appointed for many high profile televised matches. The TMO takes advantage of up to 13 different camera angles available in the outside broadcast unit to issue a live ruling when requested by the match referee. Rugby’s rules provide that the TMO can only be asked whether or not a team has grounded the ball so as to score a try. The concept works well; the TMO may only rule on this aspect of play, and not matters such as a forward pass in the phase of play leading to the score. In American football, played under the auspices of the NFL, the use of television is more widely available. Teams have the ability to issue a set number of challenges to refereeing decisions in any phase of play and not simply scoring opportunities. It has been mooted that television could be used in football to determine whether the ball crossed the line between the posts, commonly the subject of controversy. Such an analysis, if allowed, would be easy to provide for and readily understood. Yet it would not be available to rule out a goal such as that controversially scored by France, where the alleged foul was in the buildup phase. If television is going to further influence football and take an active role in the outcome by assisting in refereeing decisions, FIFA’s draftsmen will need to ensure that the new rule is precisely framed in order that it clearly specifies when the televised pictures may be reviewed, that the rule may be consistently applied, and to underpin the credibility of the sporting contest. However, no such rule will entirely prevent or remedy human error, whether it be the referee missing a foul or the defenders not clearing the ball, which is as much a feature of sporting contests as is sporting prowess. Bruce A Caldow, Partner, Harper Macleod LLP December 09 theJournal / 47
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