THE COURT

(Sheriff MacLeod, Mr J Smith, Mr A Macdonald)

CAPITAL INVESTMENT CORPORATION OF MONTREAL LIMITED v ELLIOT

(Application RN SLC 94/09 – Order of 11 June, 2014)

AGRICULTURAL HOLDINGS - DETERMINATION OF RENT UNDER SEC 13 OF AGRICULTURAL HOLDINGS (SCOTLAND) ACT 1991 AS AT WHITSUNDAY 2009 - RENT BASED ON OPEN MARKET EVIDENCE OF LIMITED DURATION TENANCY SUITABLY ADJUSTED - DISTINCTION BETWEEN SCARCITY AND NORMAL COMPETITION IN THE MARKET PLACE - MARRIAGE VALUE - WHETHER INCREASE APPROPRIATE FOR 1991 ACT TENANCY - USE OF 1991 ACT SITTING TENANT NEGOTIATED RENTS AS CROSS-CHECK - WHETHER THESE SHOULD BE ADJUSTED TO TAKE ACCOUNT OF SINGLE FARM PAYMENT - COMMENT ON VALUE OF EVIDENCE AS TO BUDGETS

The landlords applied to the Court for a determination as to the rent properly payable for the farm of Roxburgh Mains, Kelso, part of their Roxburghe Estate, in terms of sec 13 of the Agricultural Holdings (Scotland) Act 1991 as from Whitsunday 2009. At proof they contended for a rent of £67,876 per annum (£106.96/acre) whilst the tenant contended for a rent of £30,593 (£48.21/acre). The passing rent was £27,500 (£43.34/acre). The landlords led evidence of the open market letting of a comparable farm on a neighbouring estate (Palace Farm, Crailing) on a Limited Duration Tenancy (LDT) as at Martinmas 2009 (no one suggesting that conditions had changed in the interim such as to undermine the value of such evidence) which had attracted 27 offers ranging from £23,760 per annum (£55/acre) to £55.000 per annum (£127.31/acre) from which the landlords (Lothian Estates), having decided to prefer a new entrant to farming, had selected an offer of £34,478 per annum (£79.81/acre). The applicants argued that there was a distinction between distortion due to scarcity and normal, healthy, competition in the market place and that only the highest of the foresaid offers was distorted by scarcity. They argued that, as well as the adjustments which required to be made in respect of physical differences between the farms, an uplift should be applied to reflect the advantages of a 1991 Act tenancy, such uplift to be calculated on the basis of a tenant’s alleged capital interest under such a tenancy. The tenant argued that no such uplift was appropriate, the rent of agricultural land under a 1991 Act tenancy being unrelated to its capital value. The landlords also led evidence of four 1991 Act sitting-tenant negotiated rents on their own estate and the tenant advanced a negotiated 1991 Act settlement on a neighbouring estate. The landlords argued that an upward adjustment of these rents was required to reflect the fact, as they averred, that landlords had been excluding Single Farm Payment (SFP) from consideration when these had been agreed due to uncertainty in the law at that time. The case also features proposed adjustments to comparables to reflect differences in altitude, building provision (including cottages), repair and maintenance obligations, soil conditions, suitability for potatoes, yield differences and the provision of a private water supply.

HELD that (1) the open market evidence available was the starting point and had to be given pre-eminence (Morrison-Low v Paterson’s Executors 2012 SC 373 applied); (2) in considering open market value the Court was not bound to accept, as determining that value, the rent paid by the successful bidder, since a landlord’s choice may be informed, as here, by particular preferences not widely shared in the market place, but was instead obliged to consider the whole range of offers received; (3) in a situation in which scarcity of lets was admitted and there was evidence of intense competition it was a necessary inference that scarcity was to some extent driving up the level of bidding and therefore producing distortion; (4) such distortion could not be measured by any formula yet devised and the Court had to continue to hypothesise a reasonably balanced market (Aberdeen Endowments Trust v Will 1985 SLT (Land Ct) 23); Morrison-Low v Paterson’s Executors) and it was not sufficient, in doing so, to exclude only unsustainably high offers; (5) there was a distinction to be made between distortion due to scarcity and a premium paid for special amenity (Metropolitan Holdings Ltd v Finegold ([1975] 1 WLR 349) and, making that distinction, even in a reasonably balanced market Palace Farm would have attracted significant competition, as would Roxburgh Mains; (6) applying these considerations, even in a reasonably balanced market the hypothetical willing tenant would have paid a rent of at least £40,000 for Palace Farm; (7) on the evidence, a discount for marriage value was not appropriate; (8) whilst an upward adjustment for a 1991 Act tenancy was in principle to be expected (Morrison-low v Paterson’s Executors at paras [50] and [51]) there was no room for it on the facts of this case; (9) the result of the open market evidence adjusted as aforesaid and for the various physical differences between the farms and the terms on which they were held was a rent for Roxburgh Mains of £48,982 per annum (£77.19/acre); (10) so far as the 1991 Act comparables were concerned, the negotiated rents required to be adjusted upwards to reflect the fact that the applicants at least (landlords of four of the five such comparables) had not been taking account of SFP when these rents had been agreed and the landlords’ methodology for such an adjustment appeared appropriate; (11) when so adjusted these rents approximated very closely to the rent produced for Roxburgh Mains on the basis of the open market evidence and there was, therefore, no basis on which the result of the open market evidence required to be modified in the light of these negotiated settlements nor did that result fall to be modified because of current economic conditions in the relevant sectors of agriculture nor for any of the other regards or disregards contained in sec 13; (12) notwithstanding that it could not be supported by the budgetary evidence in the case, the rent arrived at was realistic given what people were clearly willing to pay in the open market, suitable adjustment being made for the effects of scarcity as aforesaid; and (13) rent properly payable as at Whitsunday 2009 determined to be £48,982 per annum. Observations as to the relevance of budgetary evidence where there was sufficient evidence of open market rent and negotiated comparables and comment as to whether, although it was understandable that parties would want to leave no stone unturned in a case such as this, it was necessary or desirable to go into the evidence in so much detail in future if improvements in terms of the speed and economy with which rent cases were dealt with were going to be achieved.

The Note appended to the Court’s order is as follows:

I INTRODUCTION

[1] This is an application by the landlord applicants to determine the rent properly payable for the holding of Roxburgh Mains, Kelso, as at 28 May 2009 in terms of sec 13 of the Agricultural Holdings (Scotland) Act 1991 (“the 1991 Act” or “the Act”).

[2] The holding is part of Roxburghe Estate of which the applicants are heritable proprietors. The respondent, Mr John Elliot, is tenant of the holding in terms of a 1991 Act lease between himself and Peter Frederick Lindsay Batchelor, as Factor and Commissioner for Capital Investment Corporation (Guernsey) Limited, dated 1 June 1992 (production 2). He took entry at Whitsunday 1993. The lease was for a period of one year, to the term of Whitsunday and separation of crop 1994, and from year to year thereafter. The lease has been varied by a Post-Lease Agreement of even date with the lease itself (production 4) and a subsequent agreement dated 21 and 23 May 1996 (production 5). The present rent is £27,500 plus Value Added Tax and was agreed by Minute of Agreement dated 22 and 24 June 1999 (production 6). It took effect from Whitsunday 1999.

Parties’ positions

[3] In terms of the application as lodged the landlords proposed a rent of £38,300. Their final submission was that the rent should be fixed at £67,876 (£106.96/acre). The tenant’s position has undergone much less radical change: it began at the level of the passing rent and finished at £30,593 (£48.21/acre).

The hearing

[4] We heard evidence over 15days in September 2013 and January and February of this year, following which parties lodged written submissions on which we held a hearing on 26 March. The applicants were represented by Mr Robert Sutherland, advocate, and the respondents by Mr Hamish Lean, solicitor.

Inspections

[5] We carried out a preliminary inspection of the review subjects and parties’ comparables (save for, because of time constraints, Windywalls) before the proof commenced and a more detailed inspection of the review subjects, Palace, Over Roxburgh (the one of the landlords’ comparables thought most directly comparable to Roxburgh Mains) and Smailholm (the tenant’s only comparable) farms between the close of evidence and the hearing on submissions.

Witnesses

[6] For the applicants evidence was given by Mrs Kathleen Patricia Blair, Factor of Lothian Estates; Mr Alan Forrest Nisbet FRICS, Managing Director of Buccleuch Rural Solutions, Estate Managers; Mr Jonathan Robert Mitchell Henson MRICS, Director of Rural Business, Savills, Estate Agents; Mr James Muir Padgett Galbraith FRICS, Chairman, CKD Galbraith, Estate Agents; Mr Gordon Campbell King FRICS, a partner in D M Hall LLP’s Rural Practice Division; and Mr Roderick Edward Jackson Dip Estate Management, MBA, FRICS, the applicants’ Estate Factor. For the respondent evidence was given by Mr Neil George Campbell Thomson, joint tenant of Caverton Mill Farm, Kelso; Mr Thomas Richard Oates MRICS, partner in George F White, Valuers and Surveyors,and the respondent himself.

[7] We found the witnesses to be both credible and reliable. There was little difference between them as to matters of fact, only opinion. Mr Sutherland attacked the credibility and reliability of Mr Oates’ evidence on the basis of changes in his position on certain matters as between the dates on which certain productions were prepared and either the dates of later productions or his evidence at proof. For example, by the time he came to give evidence he had changed his view as to how the effect of scarcity on the rent of Palace Farm was to be calculated from his position as stated at para 3.12 of production 125. However we accept Mr Oates’ explanation of these changes as having been the product of further consideration and discussion with colleagues.

Our treatment of evidence and submissions

[8] We do not consider it necessary to set out all that was said by each witness in a sequential narrative of the evidence. That would add greatly to the length of what is, even without it, a long judgement without proportionate benefit. Instead, in what follows, we summarise the evidence on each disputed issue as it arises. We do not, however, include in these summaries anything but the most passing reference to the extensive evidence we heard as to hypothetical budgets for Palace and Roxburgh Mains farms. That is because it served no useful purpose, standing the general status of such evidence as a matter of law (as discussed hereinafter) and the sufficiency of evidence as to open market value and rents of comparable farms in this particular case.

We deal with parties’ closing submissions in the same way.

The approach we have taken

[9] The evidence in this case has included evidence of the open market letting of a comparable farm (Palace Farm, Crailing) on a 15 year Limited Duration Tenancy (LDT) as at Martinmas 2009 together with evidence of negotiated rents for 1991 Act tenancies at several other farms, some on Roxburghe Estate (Over Roxburgh, Roxburgh Newton, Caverton Mill and Windywalls – all landlords’ comparables), and one on Mellerstain Estate (Smailholm Mains – the tenant’s only comparable). In obedience to the wording of sec 13 of the Act and in accordance with the guidance given by the Lord Justice-Clerk, as Lord Gill then was, in Morrison-Low v Paterson’s Executors (infra) we have given pre-eminence to the open market rent evidence. Although, obviously, the rent which Palace Farm was to fetch as at Martinmas would not have been known at Whitsunday 2009 the evidence relating to it is good evidence as to what bidders were prepared to pay around that time. No one suggested that anything happened in the intervening six months to lessen its relevance or undermine its validity. We have therefore set out to arrive at an open market rental value for Palace Farm as at 2009 in terms of sec 13 and then adjusted that to reflect the differences between that farm and Roxburgh Mains. We have then compared the result with the evidence of the sitting-tenant comparables, suitably adjusted. We have used that evidence as a cross-check on the result of the open market evidence.

II LEGISLATION AND AUTHORITIES

Sec 13 of the Agricultural Holdings (Scotland) Act 1991

[10] So far as relevant, the wording of sec 13 of the 1991 Act is as follows:-

“13. (1) Subject to subsection (8) below, the landlord or the tenant of an agricultural holding may, whether the tenancy was created before or after the commencement of this Act, have determined by the Land Court the question what rent should be payable in respect of the holding as from the next day after the date of the notice on which the tenancy could have been terminated by notice to quit (or notice of intention to quit) given on that date.

(2) In relation to such a question, the Land Court shall determine, in accordance with subsections (3) to (7A) below the rent properly payable in respect of the holding as from the ‘next day’ mentioned in subsection (1) above.

(3) For the purposes of this section the rent properly payable in respect of a holding shall normally be the rent at which, having regard to the terms of the tenancy (other than those relating to rent), the holding might reasonably be expected to be let in the open market by a willing landlord to a willing tenant, disregarding –

(a) any effect on rent of the fact that the tenant is in occupation of the holding; and

(b) any distortion in rent due to a scarcity of lets,

but having regard to the matters referred to in subsection (4) below.

(4) For the purposes of determining the rent payable under subsection (3) above, the Land Court shall have regard to the following –

(a) information about rents of other agricultural holdings (including when fixed) and any factors affecting those rents (or any of them) except any distortion due to a scarcity of lets; and

(b) the current economic conditions in the relevant sector of agriculture.

(5) The Land Court shall not take into account any increase in the rental value of the holding which is due to improvements –

(a) so far as –

(i) they have been executed wholly or partly at the expense of the tenant (whether or not that expense has been or will be reimbursed by a grant out of moneys provided by Parliament) without equivalent allowance or benefit having been made or given by the landlord in consideration of their execution; and

(ii) they have not been executed under an obligation imposed on the tenant by the terms of his lease;

(b) which have been executed by the landlord, in so far as the landlord has received or will receive grants out of moneys provided by Parliament in respect of the execution thereof;

nor fix the rent at a higher amount than would have been properly payable if those improvements had not been so executed.”

Cases

Aberdeen Endowments Trust v Will 1985 SLT (Land Ct) 23
Baird’s Executors v Inland Revenue Commissioners 1991 SLT (Lands Tr) 9
Broadlands Properties Estates Ltd v Mann RN 449, 5 May, 1994
Buccleuch Estates Ltd v Kennedy 1986 SLCR 1
Compton Beauchamp v Spencer [2013] 2 P & CR 15
Crown Estate Commissioners and Gunn 1961 SLCR App 173
Grant v Broadland Properties Ltd 1995 SLCR 39
Kinnaird Trust and Boyne 1985 SLCR 19
Morrison-Low v Paterson’s Executors 2012 SC 373
Morrison-Low v Paterson’s Executors SLC/233/08, 2 June, 2010
Ross v Campbell SLC/150/10, 22 October, 2013
Trustees of J W Childer’s Trust v Anker [1997] 73 P & CR 458

Texts

Hon Lord Gill, The Law of Agricultural Holdings in Scotland, 3rd ed (1997)

III THE REVIEW SUBJECTS

The farm itself

[11] Roxburgh Mains is a mixed arable and livestock farm extending to 634.57 acres, comprising 467.3 acres of arable land, 154 acres of pasture and 13.27 acres of land under roads, buildings etc. It sits at an elevation of 75 – 130 metres above sea level in the Teviot Valley. In terms of fixed equipment, it has extensive buildings, extending to 48,803 sq ftand residential accommodation comprising a substantial farmhouse (Council Tax band G), one three-bedroomed cottage and one two-bedroomed cottage. One of the cottages is occupied by the tenant’s son, the other, we understand, by a worker on the farm. The land is predominantly grade 3(1) in terms of the Macaulay Land Use Research Institute classification, with some grade 3(2). Part of the grade 3(1) is shown as having a soil restriction and all of the grade 3(2) has a wetness restriction. There are two water supplies; a private supply and a Scottish Water “Business Stream” supply. The private supply is from a borehole situated behind the steading. It supplies the farmhouse, cottages, farm buildings, and troughs situated in fields in the vicinity of the farm house, as well as two cottages no longer in the lease, three other farms and part of Roxburgh Village. No charge is made for water from this supply but how the existence of this free supply is to be treated for renting purposes is one of the issues in the case.

[12] Macaulay Institute Grade 3(1) land is described, in terms of the Institute’s explanatory notes (see production 243), as “Land…capable of producing consistently high yields of a narrow range of crops (principally cereals and grass) and/or moderate yields of a wider range (including potatoes, field beans and other vegetables and root crops)”. We deal specifically with potatoes below but, in general terms, that is an accurate description of the arable land of the holding. The explanatory notes also refer to yields of arable crops on Grade 3 land generally being variable due to “soil, wetness or climatic factors” and, as has been said, areas of the farm are shown as being affected by soil and wetness restrictions. The wetness restriction, which was confined to part of the area known as “The Moor” close to the west-north-west boundary of the farm, has been largely ameliorated by reclamation carried out by Mr Elliot (see production 145). The soil restriction, which takes the form of a relatively high stone content, is more intractable. No part of the farm is unaffected but it is more pronounced at the south and south-west ends of the farm, diminishing as one moves north and east. Contractors have been engaged to remove stones periodically over the years of Mr Elliot’s occupation but the removal of stones from arable fields is an annually recurring task for his employees. Mr Elliot has permission to sell the stones so removed but has never done so, finding uses for most of them on the farm.

[13] The cereal crops for which the land is suitable include winter wheat, spring oats and spring barley. In 2009 the respondent was achievingaverage yields of 3.3 tonnes/acre for wheat and around 2.0 for spring oats/barley. He used oilseed rape as a break crop and achieved an average yield of 1.3 tonnes/acre for it. Previous cropping regimes have included potatoes but not since 1985.

[14] In terms of buildings, the holding is a fully equipped farm with a mix of traditional, stone-built, buildings and more modern (the most modern dating from 1973) portal frame buildings clad in a mixture of fibre-cement and corrugated iron. There are a number of pole barns used for forage and straw storage but these are tenant’s improvements. Some of the buildings have been adapted by the provision of an internal cattle handling system. There is a purpose-built grain store, weather and vermin proof (or readily capable of being rendered vermin-proof), but of the older variety with flat-floored grain bins requiring manual emptying. The conveyor system is a tenant’s improvement. Production 131 is a copy of part of a record of the holding prepared in June 1994 and contains a range of photographs which are still reasonably accurately illustrative of the buildings on the holding. They show, among other things, how some of the older buildings have been adapted for modern use, as by the creation of new or enlarged openings for access by modern machinery; for example, photographs C4 and C37. There is a dispute about whether one of the buildings is to be regarded as part of the fixed equipment provided by the landlord. We deal with that later.

The lease

[15] Clause 7 of the lease provides as follows:-

“The tenant shall at his own expense perform the following specific works:-

(i) Every fifth year of the tenancy, the Tenant shall carry out such necessary repairs to the roofs and ironwork as may be required to permit of their being adequately painted, and he shall thereafter employ practical tradesmen to apply two coats of best quality paint to the whole of the insides and outsides of all doors and the outsides of the window frames and to the whole outside woodwork and ironwork of all the buildings on the farm …;

(ii) The Tenant shall annually employ practical tradesmen to overhaul the roofs of the buildings and to effect such repairs as are required and in particular he shall keep in good order the gutters, rhones, downpipes and gulleys and, if called upon to do so, he shall produce receipted accounts verifying the due performance of the work, and he shall at all times keep all rhones, gutters and roof valleys free of leaves, weeds or other obstructions.

(iii) The Tenant shall annually scour, dig out and clean all ditches and minor water courses as may be necessary to maintain them at sufficient width and depth and shall keep clear from obstruction all field drains and their outlets, repairing all those that are broken.

(iv) As often as may be necessary, the Tenant shall cause to be cleaned out all traps, cesspools, and septic tanks on the farm.

(v) The Tenant shall maintain throughout the tenancy and leave at his awaygoing in good order all water supplies, wells, pumps, troughs, water pipes and water fittings of every description, whether in the farmhouse or cottages or in or on the land. Pipes and fittings damaged by frost or other cause shall be repaired without delay by the Tenant. The water pump serving the farm as well as other Estate properties will be maintained by the Proprietor, but the Tenant shall have the responsibility of checking the working of the pump daily and advising the Proprietor at once of any deficiency in supply or defect of the pump.

(vi) The Tenant shall keep all hedges properly trimmed and shall not remove or destroy hedges or hedgerow trees.”

[16] Clause VIII of the landlords’ Regulations and Conditions, which form part of the lease, provides as follows:-

“The Tenant shall accept as being in a thorough state of repair the whole Fixed Equipment (as the same is defined in Section 93(1) of the Agricultural Holdings (Scotland) Act 1949) with the exception of those items which are specifically mentioned in the Official Record as being defective, and the Proprietor hereby undertakes to have the said defective equipment (except such Fixed Equipment as may be obsolete and no longer in use) put into a thorough state of repair as soon after the commencement of the Tenancy as is reasonably possible and the Tenant shall be bound to maintain the Fixed Equipment as provided by Section 5(2)(b) of the said Act.”

[17] The foregoing provisions were varied by said Post Lease Agreement, in terms of which the tenant undertook to maintain the fixed equipment in good tenantable condition throughout the tenancy and to renew the same when necessary, with the exception of the main walls and principal timbers of the farmhouse, cottages and roofed buildings and all permanent fences, hedges, dykes, gate posts and gates which were to be maintained and renewed as necessary by the landlords, subject, in the case of the walls, hedges etc., to the tenant bearing half the cost.

IV THE OPEN MARKET EVIDENCE

Palace farm itself

[18] Palace Farm extends to 432.47 acres. In terms of its Letting Particulars (production 136), that is broken down into 349.74 acres arable, 63.26 acres of fallow, 11.09acres of permanent pasture and 8.38 acres under roads and tracks. However, after discussion in the evidence as to how the fallow land was to be treated following improvement works being carried out by the Estate, there was broad agreement that it comprises, in round figures, a farmable area of 424 acres, consisting of 381 acres of arable and 43 acres of permanent pasture. It sits at an elevation of 50 – 90 metres above sea level in the Teviot Valley. The land is predominantly Macaulay grade 3(1) but with some 3(2) at the south-west end. An area of the grade 3(1) is liable to flooding where it lies adjacent to the River Teviot and is marked as having a wetness restriction. Although flood banks have been erected along the river they have not always prevented flooding. The stone content of the soil is much less than at Roxburgh Mains and stoniness is not a problem. Water is from the public supply. Prior to its present let it was a wholly arable unit (including potatoes and vegetables) but when being let in 2009 the landlords were anxious to let it as a mixed unit for the benefit of the soil. As to productivity, the letting particulars describe “approximate average annual yields” of 2.5 tonnes of spring barley per acre and 3.5 tonnes of wheat. The buildings comprise a farmhouse and steadings consisting of a mix of modern portal frame buildings and traditional buildings. Traditional buildings have been adapted for modern use. There is no purpose-built grain store, only an open-fronted storage shed. There are no cottages.

The lease

[19] The farm was let on a 15 year LDT from Martinmas 2009. The agreed rent was £34,478. Under certain exceptions, the tenant accepted the fixed equipment as being in a thorough state of repair and sufficient for the size of unit. The continuing maintenance obligation was to be on the basis of a full repairing lease but there were exceptions in that the cost of external painting, drainage, maintenance of flood banks and cutting of hedges was to be shared equally.

Fixing the open market rental value of Palace

Evidence

[20] Advertisement of the let produced a great deal of interest. Twenty-seven offers resulted. The range is set out in the following table. It is based on productions 135 and 217, the former prepared by Mr Jackson and the latter by Mr Oates. The numbers in the left hand column are Lothian Estates’ reference numbers and correspond to the numbering of summaries of the offers prepared by Mrs Blair, their Factor (production 134).

Tender
Number
Rent
Offered
Rent
per Acre
Root Crops
Intended?
Farmhouse
Included
24 £55,000 £127.31 HIGHEST Yes
17 £47,500 £109.95 Yes
5 £47,000 £108.80 Yes
22 £45,000 £104.16 Yes
13 £45,000 £104.16 Potatoes No
12 £43,000 £99.54 Potatoes Yes
11 £43,000 £99.54 Potatoes No
15 £42,200 £97.68 Potatoes Yes
14 £42,000 £97.22 Potatoes Yes
20 £36,800 £85.19 Potatoes Yes
25 £36,500 £84.49 Potatoes Yes
10 £35,125 £81.30 Yes
19 £34,478 £79.81 SUCCESSFUL OFFER Yes
9 £34,250 £79.28 Potatoes Yes
8 £33,920 £78.52 Yes
2 £30,274 £70.00 Potatoes Yes
4 £30,170 £70.00 No
21 £30,000 £69.44 Vegetables Yes
18 £30,000 £69.44 Yes
7 £30,000 £69.44 Potatoes Yes
16 £29,500 £68.29 Possibly Yes
27 £29,376 £68.00 No
6 £28,000 £64.81 Potatoes No
26 £26,000 £60.18 Potatoes Yes
23 £26,000 £60.18 No
3 £23,791 £55.00 Potatoes Yes
1 £23,760 £55.00 LOWEST No

[21] Mrs Blair explained that, having received the bids, six candidates were chosen for interview. Following the interviews the Estate made two decisions which helped inform its choice of tenant. One was to prefer a new entrant to farming. The other was that they were not interested in letting the farmhouse separately.

[22] On the basis of these preferences they chose offer number 19, that of a Mr Gamble. At a rental of £34,478 (£79.81/acre) it was in the lower half of the range of offers in terms of value. There were 12 offers above it, two of which did not include the farmhouse. Had Mrs Blair not been bound by her employers’ preference for a new entrant she would have chosen a higher offer. But she would not have been inclined to accept offers of over £100/acre. She felt they might prove unsustainable. Her preference would have been for something lower. Left to herself, and making allowances for other aspects of the various bids, she would have chosen either number 20 at £36,800 (£85.19/acre) or number 11 at £43,000 (£99.54/acre). As between those, her preference would have been for the lower of the two but that was based on the fact that she had been particularly impressed by the individual and his tender rather than any deficiency or weakness in the higher offer.

[23] As it happens, offer 11 was made with the benefit of professional advice from Mr Nisbet. He was therefore well placed to speak to it. It was based on a budget which he had helped prepare. He was satisfied that it was a good, robust, sustainable offer made by clients who were not “men of straw”. His evidence was that most landlords would have accepted it or one of the offers close to it: an offer with a “4” at the front of it, as he put it. He thought Lothian Estates were “missing a trick” by not letting out the farmhouse separately.

[24] Mr Jackson gave evidence that Roxburghe Estates would have accepted one of the higher offers. Their approach was to start at the top and work down. When they reached an offer they reckoned to be sustainable, all else being equal, they accepted it. In his calculation of open market value for Palace he excluded the top offer. He thought it contained a scarcity premium. He then took an average of the next six offers which included the farmhouse. That came to £44,450. He then looked at the offers which excluded the farmhouse. There were two of those within the same range as the six which had produced the foregoing average; one of £45,000 and one of £43,000. The average of these figures, £44,000, was very close to the £44,450 arrived at in his first calculation. So he submitted that £44,000 was a reasonable open market value. In his view that figure excluded both scarcity and marriage value.

Submissions

[25] Mr Sutherland referred us to sec 13 and to the following passage from the opinion of the Lord Justice-Clerk in Morrison-Low:-

“[49] Section 13 implies that the Land Court should take as its starting point the primary evidence of rents set in open market lettings on 1991 Act tenancies of comparable holdings. The court must then adjust that evidence to allow for differences in the physical characteristics of the holdings and the provisions of the leases. It must disregard the sitting tenant factor and, as I shall explain, in considering evidence of a rent achieved in open market competition, it must decide to what extent, if any, the rent is distorted by reason of a scarcity of lets. It must adjust the evidence of the comparables, if need be, to take account of current economic conditions in the relevant sector of agriculture and apply the specific regards and disregards set out in sec 13(5), (6), (7), and (7A), which I need not discuss.

[50] Even without the SFP question, the rent assessment in this case would have been a difficult exercise. The court had to consider what the rent would be if the holding were to be let on the open market on an 1991 Act tenancy; but there was no evidence of any such let. The court had to assess the rent on secondary evidence, as will now usually be the case.

[51] Nevertheless, however difficult a sec 13 review may now be, it is important to keep in mind what the bidder in the hypothetical open market letting would be bidding for; namely, the right to be a tenant of the holding with security of tenure under the 1991 Act; with the right to enforce certain potentially onerous liabilities on the part of the landlord in respect of fixed equipment (1991 Act, sec 5); the rights to certain statutory compensations and payments at waygoing (1991 Act, Pts V, VI); and with the prospect that the tenancy might continue in the tenant’s family for an indefinite number of generations (Succession (Scotland) Act 1964 (cap 41), sec 16; 1991 Act, secs 11, 12). To these advantages I would add the further benefits conferred on 1991 Act tenants by the 2003 Act, not least the qualified right to buy.

[56] The best evidence in a sec 13 valuation is evidence of an open market letting of a 1991 Act tenancy of a comparable holding at or near to the valuation date. For the reasons that I have given, there will rarely be evidence of any such letting. The best evidence in such cases, in my opinion, will be evidence of rents achieved in open market lettings of limited duration tenancies …

[63] In a sec 13 valuation evidence of a rent for a limited duration tenancy let on the open market is not ideal. The Land Court must adjust it, usually with the help of expert evidence, in order to arrive at the rent at which the holding would be let on the open market on a 1991 Act tenancy, with all the advantages for the tenant that I have described. Nonetheless, it is primary evidence of the open market in the letting of agricultural land and therefore in such circumstances, in my view, the best available evidence.

[64] A more indirect, and less satisfactory, indicator of open market value is evidence of rent reviews agreed between landlords and sitting tenants under existing 1991 Act tenancies of comparable holdings.

[65] In my opinion, the valuation of an open market rent on the basis of a farm budget should be a method of last resort. The profitability of the holding is obviously a relevant consideration in the framing of an open market offer; but, as the Land Court has rightly held, questions of profitability must invariably be subsidiary to the open market criterion (Buccleuch Estates Ltd and Kennedy, supra, at p 23). It is fallacious, in my opinion, to assume that a successful open market offer would be no greater than a budget for the holding would indicate. A farm budget may provide no more than a snapshot of the position as at the valuation date. It is critically dependent on certain key assumptions and on sensitive variables, such as cereal prices … An open market bidder may take a wider view.

[66] There can be many reasons why in the real world of open market competition a credible offer would exceed the amount that an expert’s budget might be thought to justify. In this case the Land Court recognised that it might not always be the case that an open market rent would be set at no greater figure than a realistic budget for the holding would justify (para 64); but later, in its discussion of sec 13(4)(b), it said that it accepted ‘that the open market rent would not be one which was beyond the capacity of the holding’ (para 82). I am not convinced that that is so. Even if there were no scarcity of lets, it is conceivable that open market bidders might offer greater rents than a budget would justify if they took a certain view of market trends, particularly since the successful bidder would have the safety net of periodic rent reviews under sec 13.”

[26] The open market test assumed a willing landlord and a willing tenant. In considering what amounted to a willing landlord, the view of this court in Crown Estate Commissioners and Gunn (at p. 175) that “It may reasonably be expected that a landlord will accept the highest offer made in the open market consistent with the well-being of the holding and the safeguarding of its fertility” remained applicable.

[27] In the light of the foregoing guidance from Morrison-Low the tenant’s approach in this case, relying on hypothetical budgets for both Roxburgh Mains and Palace, was flawed. Mr Sutherland then went on to criticise the reliability of the various budgets which had been produced by Mr Oates. Reverting, at a later stage in his submissions [para 41], to the assessment of an open market rent for Palace, it was, he submitted, appropriate to consider what rent might have been achieved in the open market by a hypothetical landlord who did not adopt the policies and preferences of Lothian Estates. Such a landlord would note that there were eight offers grouped in the range £42,000 - £47,500 with a further offer above that which would have been disregarded as a freak offer. Mr Jackson’s assessment of an open market value of £44,000 was therefore reasonable and, in Mr Sutherland’s submission, made an appropriate allowance for any scarcity or marriage value premium in any of the higher offers.

[28] Mr Lean began his submissions by discussing the sort of tenant Lothian Estates had been looking for. Although this preference had not been identified in the letting particulars, for fear of restricting interest, they had wanted to encourage a new entrant who would pay a sustainable rent and look after the landlord’s fixtures. They were also looking for an able tenant who would farm well. No decision had been taken not to look for an open market rent and Mrs Blair’s own preferred candidate, not affected by a preference for a new entrant, would have been offer number 20, offering a rent of £36,800 or £85.19 an acre.

[29] In Aberdeen Endowments Trust v Will the landlords of two comparable farms had had a preference for younger men as tenants and the leases contained residential clauses requiring tenants to live on the farms and work them as single units. Despite these restrictions the Court had not taken the view that the true open market rent was higher than the offers accepted. In Mr Lean’s submission the open market rent for Palace Farm was the rent accepted by the landlord. It was the result of an agreement between a willing landlord and willing tenant. He referred to the Court’s discussion of open market rent in Crown Estate Commissioners and Gunn:

“[O]ne might expect a landlord to exercise some foresight in the selection of his tenant, in the long term interest of the holding and not necessarily always to accept the highest offer of rent, which may not always (although sometimes it may) be made by a person likely to farm the holding on sound lines and safeguard its future productivity. Thus, although evidence of offers made in the open market is important, the Court is not necessarily bound by what are shown to be ‘freak’ offers, since a landlord may be expected to think of the permanent wellbeing of the holding, and the security for future payments of rent, and to prefer a somewhat lower rent which is likely to continue to be paid by a well-run and profitable farming enterprise to a very high rent which the holding, if properly farmed, cannot support indefinitely. Thus, offers of rent which would lead to the short term exploitation of fertility are properly excluded. An open market rent is an economic rent. The rent is not so high as to be uneconomic for the holding if properly farmed by a tenant of adequate resources with a proper degree of skill and efficiency using modern methods and observing the rules of good husbandry so as to realise the potential of the holding.” [p 175]

[30] Mr Nisbet, Mr King and Mr Jackson had all been happy to accept that Lothian Estates, having had sight of the budgets supporting the offers, were best placed to decide who was the most suitable tenant. We should therefore hold that the open market rent of the farm was the rent of £34,478 which they had accepted.

Decision

[31] It may be thought that sub-sec 4(a) of sec 13 precludes us from looking at anything other than the successful offer for Palace because it says only that we are to have regard to “information about rents of other agricultural holdings”. That is in contrast to the position prior to the amendment of sec 13 by sec 63 of the Agricultural Holdings (Scotland) Act 2003, when sec 13(4)(b) expressly allowed the arbiter, if necessary, to have regardto “the entire range of offers made as regards any lease of subjects which are comparable after regard is had to the terms of that lease”. Other aspects of the 2003 Act’s amendment of subsec (4) were criticised by the Lord Justice-Clerk in Morrison-Low (at paras [53] and [54]). This is another context in which it has not proved helpful. However, Mr Lean did not go as far as to argue that we could not look at the range of offers. What he argued was that, on the facts of this case, we should hold that the offer accepted reflected the open market rental value.

[32] We are persuaded that we can and indeed must look at other offers. We can do it because the words “information about rents of other agricultural holdings … and any factors affecting those rents …” are wide enough to be taken to include rents offered as well as rents being paid and we have to do it in order to carry out our task under subsec (3), which is to determine “the rent at which … the [subject] holding might reasonably be expected to be let in the open market by a willing landlord to a willing tenant disregarding any distortion in rent due to a scarcity of lets”. In looking at Palace, the question for us is “What does what happened when Palace Farm was put on the open market tell us about the rent at which Roxburgh Mains might have been let on the open market at Whitsunday, 2009?” In order to answer that question we have to be able to look at the range of offers received and not just the offer accepted.

[33] The fact that a particular offer within a range has been accepted by the landlord does not, of itself, make it determinative of the open market value of a holding. That is because the landlord’s decision may have been influenced by factors, such as particular preferences, which would have carried no weight with other willing landlords. Nor is the highest offer received, simply by virtue of being the highest offer, determinative of it. That is because it may be unsustainably high, in which case the landlord would not be willing to let.

[34] Guidance as to how we might identify the open market rental value (subject to any scarcity discount) of a holding from a range of offers received is given in Gunn in the sentence quoted by Mr Sutherland, which comes immediately after the passage cited by Mr Lean. It says “It may reasonably be expected that a landlord will accept the highest offer made in the open market consistent with the well-being of the holding and the safeguarding of its fertility”. That accords with the approach Roxburghe Estates would have taken had they been letting Palace Farm and also with Mrs Blair’s position, although Roxburghe Estates would have accepted a higher rent than Mrs Blair was prepared to accept.

[35] Although Mr Jackson’s approach to working out the open market rental value of Palace was both reasoned and reasonable (he did not suggest that open market value was equivalent to the highest offer which would have been accepted by his employers), we think great weight has to be attached to Mrs Blair’s view since she knew the farm best and was best placed to know what a sustainable rent for it would be. Although she had a particular preference for offer 20, at £36,800, she also thought offer 11, at £43,000 was acceptable. Her restriction was that she would be suspicious of offers as high as £100/acre. In other words, of the offers received, £43,000 (at £99.54/acre) was as high as she would have been prepared to go.

[36] Accordingly, giving weight to Mrs Blair’s evidence as to the highest offer she would have regarded as sustainable and to Mr Nisbet’s evidence that his clients’ offer at £43,000 was sustainable, we have come to the view that the open market rental value of Palace Farm let on a 15 year Limited Duration Tenancy as at Martinmas 2009 is reasonably assessed at £43,000 per annum. The next question is whether that figure contains any element of distortion due to scarcity of lets.

Scarcity

[37] Everyone who gave evidence agreed that in 2009 there was a scarcity of farms available for let on LDTs in the Scottish Borders. Although we heard that Lothian Estates had subsequently leased two other farms on LDTs, as at 2009 the letting of such a farm as Palace on a 15 year old lease seems to have been a unique event and it surprised no-one that it produced 27 offers. On the approach of parties and the Court in previous cases the foregoing facts would, in and of themselves, have been taken as proving distortion due to scarcity. Aberdeen Endowments Trust v Will, one of the first cases decided by the Court following upon the introduction of the requirement to discount for distortion due to scarcity by sec 2 of the Agricultural Holdings (Amendment) Act 1983) (“the 1983 Act”), is an example. It seems to have been assumed in that case that a large number of offers received for two comparable farms ( 24 for one and 18 for the other) proved distortion due to scarcity. No one argued the contrary. In the present case, however, the landlords argue that there is a difference between distortion due to scarcity and the results of normal market competition and that what we see in all but the highest of the offers for Palace is the latter.

Evidence

[38] Mr Nisbet, Mr Jackson, Mr King and Mr Oates all gave evidence on scarcity. Mr Nisbet’s evidence was that the effect of scarcity was represented by the extent to which a bidder was prepared to offer the landlord more than 50% of the pre-rent surplus brought out in the bidder’s budget. Anything above 50% (unless otherwise explained) was due to scarcity. That was, he said, the only true yardstick. In cross-examination, however, he resisted the notion that when his clients had offered Lothian Estates something like 60% of their budgeted pre-rent surplus that was because of scarcity. Nevertheless, in re-examination he re-affirmed that anything in excess of a 50% split in favour of the landlord was distortion due to scarcity. Using his hypothetical budget for Palace, production 322, he agreed with Mr Sutherland that his evidence was that the appropriate way in which to calculate scarcity was as follows:-

Rent offered £45,903.00
Less one-half of pre-rent surplus (£76,505/2) £38,252.00 (rounded down)
£7,651.00
£7,651 as percentage of the rent offered (£45,903) was 16.67%

[39] Mr Jackson, who had sat in on Mr Nisbet’s evidence, understood it differently. He took Mr Nisbet to be saying that his clients’ bid of £43,000 contained nothing for scarcity, nor for marriage value. That had caused Mr Jackson to change his mind. He had previously thought it reasonable to assume that the landlord and tenant would share the pre-rent surplus equally and that any excess above 50% in favour of the landlord would be a distortion due to scarcity. Having heard the evidence of Mrs Blair and Mr Nisbet he had changed his view. He continued to think that the highest offer was distorted by scarcity but not the others. He therefore contended that £44,000 (worked out as previously) represented open market value undistorted by scarcity.

[40] Since hearing Mr Nisbet’s evidence Mr Jackson had gone to see one set of bidders for Palace. As it turned out, although Mr Jackson had not known it in advance of speaking to them, they were the top bidders. He had done so in order to find out how they had approached the framing of their offer. They had offered a 10% premium above what they calculated to be a sustainable rent. Mr Jackson thought that was clearly a premium for scarcity and it shaped his new view as to what constituted distortion due to scarcity. It was no longer the difference between 50% and whatever higher proportion of pre-rent surplus the bidder offered the landlord; it was now a premium over and above a sustainable rent, what is sometimes called key-money. One could only offer it in the hope that it would be stripped out, as being due to distortion due to scarcity, at the first review.

[41] In cross-examination he adhered to his view. That there was scarcity was not in doubt. But where, he asked, was the evidence of distortion? Not in the fact that there had been 27 offers because that did not mean that some or all of these offers had been inflated as a result of scarcity. There was no evidence of that. Except in relation to the top offer, there was no evidence of anything above a sustainable rent being offered. Asked how he could exclude the possibility of scarcity, given that he had not seen the budgets behind the offers, he said that we did not know. The evidence was simply not there. There was, therefore, no positive evidence of scarcity. The evidence was, rather, that a rent of £44,000 was a sustainable rent acceptable to the various bidders whose bids were in that area. In 2012 Roxburghe Estates had let two other farms which had attracted significantly fewer offers but the offers had, nevertheless, contained unequal divisions of the pre-rent surplus in favour of the landlords.

[42] Mr Gordon King was the third of the landlords’ witnesses to speak to this matter. For him scarcity was to be assessed in terms of what was done by individual bidders. One could not just assume that bids were inflated because of scarcity. There was certainly a scarcity of lets such as Palace Farm but distortion was another matter. There could be other reasons for people driving their bids beyond the range of the normal competitive market. What we had here was good evidence of a competitive market place. The Scottish agricultural industry was ambitious and looking to farm whatever land was available. In going through productions 134 (Lothian Estates’ summaries of the individual bids for Palace Farm) and 135 (Mr Jackson’s analysis of the range of bids) he had found no evidence of scarcity, save, perhaps, for the highest bid. A landlord would be looking out for “spikes”, being abnormally high offers usually driven by individual circumstances. Bids of that kind might be unsustainable and a landlord would reject them for that reason. Save for the top offer these productions did not disclose concern of that kind.

[43] On Mr King’s approach spikes of that kind – which were the form which he expected distortion due to scarcity to take – were to be excluded before one reached a market value. It was not a matter of deciding on the open market value and then stripping out the effect of scarcity: it was a matter of eliminating the effect of scarcity as part of reaching the true market value.

[44] As to the significance of the number of bids, he pointed out that one might have only two bids for a scarce resource. The fact that there were 27 was evidence of demand but not evidence of distortion due to scarcity. A capable and ambitious farming community was always going to show interest in a farm like Palace. There were certainly more prospective tenants than there were farms available. One would have high demand whether only one farm was coming on the market each year or five. Even if supply was doubled there would still not be enough. Nevertheless, he was not convinced that competition generated offers distorted by scarcity. People would bid more if there was competition but what we required to do was look at the individual bids for evidence of distortion due to scarcity.

[45] There were other forms of “sweeteners” which prospective tenants could offer to make their bids more attractive in a market affected by scarcity. In the commercial world that often took the form of payment of a one-off capital sum as key-money. That had no effect on rent. That tended not to happen in agriculture but there could be other sweeteners, such as the tenant being willing to erect a new building or carry out drainage. In that situation the rent would not be distorted.

[46] Distortion was a question of fact and one had to look at the individual bids for evidence of it. He had found no evidence of it in the bids here: even the highest bid had other factors which might explain why it was so high. His approach was consistent with what had been said by this court in Aberdeen Endowments Trust v Will (at page 25) as quoted at para [55] of the Court’s judgement in Morrison-Low.

[47] Mr Oates’s position was the same as Mr Nisbet’s and Mr Jackson’s original position: that anything beyond a 50:50 split of divisible surplus represented scarcity. A 50-50 split was a common starting point when working out how much a tenant could afford to offer by way of rent. Although there could be exceptional cases, it was normally necessary to offer the landlord more than 50% of the divisible surplus. He described that as a “premium”. In his opinion the need to offer such a premium was created by scarcity. There was a lack of supply of tenancies. They were scarce. That scarcity was distorting the market.

[48] The effect of that distortion on the rent accepted for Palace Farm could be calculated using a hypothetical budget and the amount of the successful offer. He had prepared such a budget; production 242. In its original form it produced a surplus of £63,880 but that figure required to be changed by way of corrections made in the course of evidence. An up-dated version (production 242a) was lodged along with Mr Lean’s written submissions and it shows a pre-rent surplus of £66,165. For present purposes, however, what matters is the methodology, not the particular figures. The scarcity premium was arrived at by subtracting one-half of the budget’s pre-rent surplus from the rent offered by the successful bidder. For reasons that are not entirely clear to us, that was then divided by two. For adjustment purposes, the resultant figure was then divided by the farmable acreage of Palace Farm, so as to produce a scarcity premium per acre. That premium per acre was then multiplied by the farmable acreage of Roxburgh Mains. The results of this calculation are shown in production 327.

[49] In cross-examination Mr Oates accepted that scarcity would not be the only factor which would cause a bidder to offer more than 50% of the divisible surplus to the landlord. Marriage value was another and there might be others particular to an individual bidder. Scarcity and marriage value would be the two most common causes.

[50] Mr Oates also accepted that the method for calculating the effect of scarcity for which he was now contending differed from the method advanced at para 3.12 of production 146, an analysis of Palace Farm as a comparable for Roxburgh Mains which he had prepared at an earlier stage of the case. It said that the scarcity premium in the accepted offer was the difference between it and the lowest offer received. As a result of further thought, analysis and discussion with others he had changed his mind and he had departed from that method in favour of the method spoken to in evidence.

Submissions

[51] As to the correct approach to be taken to disregarding the effect of scarcity on an offer for the renting of a farm on the open market, Mr Sutherland referred us to the following passage from the opinion of the Lord Justice-Clerk in Morrison-Low:

“[98] … Looking at the question of scarcity overall, I consider that the submissions for the tenants on this point are misconceived. They confuse the case where demand outstrips the supply of farms of a particular kind or of farms in a particular location, with the case where there is a general scarcity of broadly suitable farms overall. There is a distinction between a premium for scarcity and a premium for special amenity (Metropolitan Holdings Ltd v Finegold ([1975] 1 WLR 349). There could in theory be a perfectly balanced market with equal numbers overall of lessors and bidders. In such a market, there could be some holdings that attracted no offers and other that attracted keen competition. The value of an agricultural tenancy is not distorted by scarcity because it is highly sought after for the quality of the land or of the buildings; or of the convenience of the location. Marriage value is just a particular type of special amenity. It follows, in my opinion, that the observations of the Land Court in Aberdeen Endowments Trust v Will (1985 SLT (Land Ct) 23, at p 25) to the effect that the Court should hypothesise a reasonably balanced market, rather than an exact equality of supply and demand, remain a sound and practical guide to valuation.”

[52] Mr Sutherland commended to us Mr King’s view that the fact that there were 27 bids for Palace Farm was evidence of a healthy market, not evidence of scarcity. Mr King had disagreed with the tenant’s approach that anything above a 50% share of profits offered as rent was evidence of scarcity. Landlords would be wary of a bid suspected of including a scarcity premium in case it might lead to a rent reduction in three years’ time. Mr King had therefore been right to exclude the top offer. But, otherwise, the pattern of offers did not show evidence of scarcity premiums. Mr Sutherland therefore submitted that Mr Jackson’s open market value of £44,000 made an appropriate adjustment for any distortion due to scarcity.

[53] Mr Lean relied on Mr Nisbet’s evidence that a 60/40 split of profits as between landlord and tenant represented distortion due to scarcity. Anything over 50% offered to the landlord was a result of such distortion. Mr Nisbet had accepted that there had been an element of scarcity in tender number 11. The £43,000 represented a 60/40 split in favour of the landlord. If Mr Nisbet’s evidence was to be understood as meaning that only something over 60% in favour of the landlord represented distortion due to scarcity, because the norm was now to offer the landlord 60% of the profits, the fact that 60% was the norm was itself the result of distortion.

[54] Mr King’s position should be rejected. He seemed to be saying that a bidder would not make an offer which contained a scarcity premium because there was a risk that the landlord would not accept it. That was a remarkable proposition. It seemed to proceed on the basis that a landlord who accepted a bid with a scarcity premium was vulnerable to a rent reduction (to get rid of that premium) in three years’ time. That was to look at distortion due to scarcity from the wrong direction. A landlord was not at risk of having the rent reduced at a rent review because the rent previously agreed was distorted by scarcity. Distortion due to scarcity only fell to be taken into account when the rent of comparable farms was being taken into account in a rent review.

[55] Tenders that were higher than they otherwise would have been because of competitive pressure stemming from shortage of supply had to be identified and adjusted out. Mr King’s evidence appeared to be that a bid being distorted by scarcity had to do with the individual circumstances of the bidder himself, not the market place. Mr King had accepted that the market for agricultural tenancies in Scotland was not reasonably balanced. Mr King’s evidence had been based on information taken from productions 134, 135 and 217, to do with the bids submitted for Palace Farm. However, he had accepted that the party best placed to assess the quality and sustainability of these bids was Lothian Estates, since only they had access to the full supporting documentation. They were best placed to assess whether bids had been distorted by scarcity.

[56] Mr Jackson’s approach, which had changed as a result of Mr Nisbet’s evidence, seemed, nevertheless, to ignore the actual evidence given by Mr Nisbet. Mr Nisbet had given evidence that his clients’ bid had included an element for scarcity. Mr Oates’ approach had been consistent with Mr Nisbet’s, that anything above a 50-50 split represented a premium for scarcity.

[57] Mr Lean referred to the Lord Justice-Clerk’s endorsement (at para [98]) of the Land Court’s discussion of scarcity in Morrison-Low. That discussion is at paras [53] to [67] of the Land Court’s judgement. At para [57] the Court had said “It is unnecessary to reach any concluded view as to how any discount or adjustment should be assessed because the issue does not arise in this case. It is sufficient to say that it is very clear that the existing practice of the Court has been to take a practical approach” and at para [67] the discussion had concluded “we consider that, although the element of competition is not be ignored, the exercise we have to carry out is closer to the concept of a figure fully negotiated by a willing landlord and willing tenant than that of trying to guess the rent which might be offered by an eager competitor intoxicated by the atmosphere of the auction ring”.

[58] In inviting us to adopt Mr Oates’s formula Mr Lean very properly drew attention to the fact that a similar formula had been rejected by the Court in Buccleuch Estates and Kennedy.The difference in this case was that we had evidence, from Mr Oates, as to how offerers “in the real world” approached the calculation of a bid. The evidence demonstrated that, in a tendering process, an offeror would calculate the likely divisible surplus to be achieved from the farm and the proportion of that surplus which he was prepared to offer the landlord as rent would be influenced by the level of competition for the farm. It was not clear how the Court had arrived at the figures it attributed to scarcity in both Aberdeen Endowments Trust and Buccleuch. Mr Oates’ approach was rational and, although apparently rejected in Buccleuch, it was supported by the evidence in this case. Anything over 50% of the divisible surplus produced by a reasonable hypothetical budget offered as rent was to be attributed to distortion due to scarcity.

Decision

[59] We reject the submission for the landlords, which accepts, on the one hand, that lets of this kind are extremely scarce, and says, on the other, that there is no evidence of that scarcity distorting rent. We do so for three reasons.

[60] Firstly, the existence of distortion of rents due to scarcity has long been recognised as a feature of the market in the letting of agricultural holdings. It was because it was happening that the requirement to hypothesise a market not affected by scarcity was introduced by the 1983 Act. The letting of Palace Farm is exactly the sort of situation in which we might expect it. The resource was scarce. The demand was high. The competition was intense. It was not a reasonably balanced market, such as we are required to hypothesise (this court in Aberdeen Endowments Trust at page 25, approved by the Court of Session in Morrison-Low at para [97]). In a reasonably balanced market supply would be greater and competition therefore less intense. Accordingly it is reasonable to expect that some of the bids will have been affected by awareness of the scarcity of what was being bid for.

[61] Secondly, we think the applicants’ submission is based on a false distinction between the effects of normal competition and the effects of scarcity. The applicants say that what we have here is normal competition, not a market distorted by scarcity. But normal competition will always take account of the relationship between supply and demand. Where supply is scarce and demand high competition will be heightened. It is implausible in these circumstances to say that the level of bids is not affected by scarcity. Indeed it makes no sense to say that the level of a bid is affected by competition but not by scarcity where scarcity is a factor in determining the intensity of the competition. In the present case the inescapable conclusion is that scarcity influenced the bidding to some extent.

[62] Thirdly, and crucially, contrary to the applicants’ submission, there is positive evidence of distortion due to scarcity in this case. Mr Nisbet gave evidence that the offer on which he advised had been affected by scarcity (albeit, as will be seen below, we do not accept his measure of its effect) and Mr Jackson gave evidence that the top offer included a premium for scarcity (albeit we do not accept that distortion due to scarcity was confined to the amount of that premium). These are the only two offers in respect of which we have evidence as to how they were arrived at. What other positive evidence would one expect? One would not expect the effect of scarcity to be explicit ex facie of the offers submitted. Only the bidder, or someone in a position to know how the offer was arrived at, could give direct evidence of it. We have such evidence in respect of only two offers for Palace Farm and both speak of scarcity having affected the level of rent offered.

[63] For these reasons we have decided that the level of bids for Palace Farm was distorted by scarcity. We now come to the difficult task of eliminating it. In that respect Aberdeen Endowments Trust is the leading case. In that case the Court considered the purpose of the (then) new sec 7(1)(A), inserted into the Agricultural Holdings (Scotland) Act 1949 by sec 2 of the 1983 Act, and, at page 25, said this:-

“The new provisions of Section 7(1)(A) are thus designed to remove any enhancement in rental value due to a distorted market which sometimes resulted in levels of rent being determined by arbiters greatly in excess of going rates under agreements reached between other sitting tenants and landlords and possibly beyond the viability of the holdings themselves. Hence the aim, more easily expressed than calculable, of trying to remove any element of distortion due to scarcity of lets or other factors.”

[64] In expressing itself in that way, the Court did not intend that part of the mischief being aimed at by the 1983 Act was the fixing of rents at higher levels than those being negotiated with sitting tenants. That would make the open-market subordinate to negotiated rents, whereas the Court elsewhere re-affirmed the primacy of the open market, saying that it remained “the underlying Scottish criterion” (p 25).

[65] But nor did the Court in Aberdeen mean to exclude, as being distorted by scarcity, only bids which were beyond the viability of the holdings: in other words, unsustainable bids. What was to be removed was “any enhancement in rental value due to a distorted market”, not just bids beyond the viability of the holding. This is consistent with the wording of the legislation post-1983. If the exclusion only of unsustainable bids was what was intended it would have been easy for the legislation to say that. But it doesn’t. Instead sec 13(4) of the 1991 Act prior to its amendment by sec 63 the Agricultural Holdings (Scotland) Act 2003 talked of the open market being “distorted by scarcity of lets” and the need to hypothesise “a market which was not affected by such distortion” and, following said amendment, of the need to disregard “any distortion in rent due to a scarcity of lets”. And that, in turn, is consistent with the fact that the open market itself excludes unsustainable bids: landlords will recognise them for what they are and reject them. So the Court is required to go further than that for the purposes of properly determining the rent under sec 13. It has to identify and eliminate the extent to which bids have been pushed beyond the level to be expected in a reasonably balanced market.

[66] For guidance on how to do that we re-visit what the Court, chaired by Lord McGhie, said in its discussion of scarcity at paras [53] to [58] of its judgement in Morrison-Low to which Mr Lean referred. We derive from it the following guidance:-

(1) That the existing practice of the Court in assessing any discount or adjustment for scarcity was to take a practical approach and did not involve the assumption of equal numbers of vacant farms and prospective tenants (para [57]).

(2) That although there was a need to protect the tenant from artificially high rents which risked going beyond the viability of the holding, the use of an open market test did not mean giving the tenant a favourable rent (para [62]).

(3) That implicit in the concept of distortion is the existence of a more genuine value which could be identified (para [62]).

(4) That where there was clear evidence of a market rent based on a reasonable number of comparables there would be no need for a disregard for scarcity (para [62]).

(5) That the Scottish Parliament had deliberately not adopted the approach of assessment based on potential earnings or profitability as had been done in the English Agricultural Holdings Act 1986 (para [63]).

(6) That, although the implication of an open market test is that the landlord is entitled to the highest figure which could be obtained on the open market, the assessment the Court has to carry out is “closer to the concept of a figure freely negotiated between a willing landlord and a willing tenant than that of trying to guess the rent which might be offered by an eager competitor intoxicated by the atmosphere of the auction ring” (para [67]).

[67] It is clear from the foregoing that the Court does not accept that the extent of distortion due to scarcity can be calculated by reference to a formula. That approach was also rejected by the Court in Buccleuch Estates and Kennedy as Mr Lean drew to our attention. The formula under discussion there was “Open market rent accepted minus viable rent having regard to the potential profitability of the farm equals distortion due to scarcity and other factors” (page 16 of the report). The Court rejected it, saying:

“We do not consider this suggested formula to be in accordance with the wording of the 1983 Act which treats profitability questions as subsidiary to the open market criterion which in an evenly balanced market should at least in theory reflect profitability.”(Page 23)

[68] Nothing said in the present case has persuaded us that this formula is any more appropriate for use in this case than it was in that one. We therefore reject it for the same reasons as the Court in Buccleuch.

[69] The formula used by Mr Nisbet and Mr Oates, and also originally by Mr Jackson, is somewhat different. It says that anything offered by way of rent in excess of a 50-50 split of the hypothetical pre-rent profit is due to scarcity, unless it is accounted for by some other factor. For a number of reasons we are unable to accept this approach.

[70] Firstly, – and obviously – it has no statutory foundation. Secondly, as we understand it, a 50-50 split is meant to reflect a perfectly balanced market, where the landlord gets half the profit for making the land and fixed equipment available and the tenant gets the other half for his work and investment. What we are required to hypothesise, however, is a reasonably balanced market. That is because a perfect equilibrium of supply and demand would break the link with the open market; this court in Morrison-Low atparas [60] and [61], affirmed by the Court of Session at para [98] of its judgement. So the very foundation of the formula is unsound. Thirdly, as was recognised by the Court in Buccleuch Estates and Kennedy, it departs from the primacy of open market evidence. Fourthly, unless one has access to the successful bidder’s budget, it involves an uncomfortable coupling of the hypothetical and the actual: an expert’s hypothetical budget being taken as the base line against the rent actually offered. Fifthly, as Mr Sutherland pointed out, there will usually be more than one way in which to farm a holding. Some ways will be more profitable than others and therefore produce a higher divisible profit. Some farmers will operate more efficiently than others, with the same result. Sixthly, - and this is perhaps merely stating earlier points in a different way – it leaves no room for the effect of competition in a reasonably balanced market. Even where there was no scarcity it is entirely possible – indeed likely – that a bidder wanting to secure a lease in face of even a single competitor would offer something more than 50% of his budgeted divisible profit to the landlord.

[71] So, approaching scarcity on the basis of budget-based formulae is wrong. Instead what we have to ask ourselves is what the level of rent would have been had the market not been affected by scarcity; had it been, instead, a reasonably balanced market. In addressing that task the Court has always, as in Aberdeen, acknowledged its difficulty and has found itself having to make very broad judgements based on its expertise as a specialist court. Taking the same approach here, and applying the guidance from Morrison-Low set out above, we hypothesise a reasonably balanced market. In arriving at an open market rental of £43,000 we have already excluded offers which risked going beyond the viability of the holding. We remind ourselves of Lord Gill’s observation that even in a perfectly balanced market some farms would attract more offers than others and that “[t]he value of an agricultural tenancy is not distorted by scarcity because it is highly sought after for the quality of the land or of the buildings or of the convenience of its location” (Morrison-Low para [98]).

[72] Palace is an attractive farm, very conveniently situated on either side of the A698, with large, easily worked fields and a house and steading in good order. Even in a perfectly balanced market it would attract competition, as would Roxburgh Mains and all of the comparables. It is fair to assume that bidders would have some knowledge of rents passing on other tenancies, although possibly not on LDTs, in the locality. The landlords would certainly be aware of other rents on their own estate but possibly also on others. We take for our purposes – as the kind of information of which bidders may have been aware – the 2009 rents of the comparables in this case. These were as follows:-

Roxburgh Mains Over Roxburgh Roxburgh Newton Caverton Smailholm Windywalls
Type of tenancy 1991 Act tenancy 1991 Act tenancy 1991 Act (limited partnership) 1991 Act tenancy 1991 Act tenancy 1991 Act tenancy
Rent (ex vat) £27,500 £31,400 (ex cottages) £22,000 (ex cottage) £34,000 (ex cottages) £25,000 £36,000
When agreed Whit 1999 2008 Whit 2009 Whit 2008 Whit 2009 Whit 2008
Acreage 634.57 acres 651.14 acres 416.30 acres 662.53 acres 590.00 acres 616.15 acres
Rent per acre £43.34 £48.22 £52.85 £51.32 £42.37 £58.43

[73] A bidder with knowledge of these rents would, therefore, know that the landlords were likely to be looking for something in the £50s/acre at least. We think, however, that these figures, even in the situation we are hypothesising, would have been regarded as very much the floor rather than the ceiling of the range of likely bids. We say that simply because these rents were the result of negotiations with sitting tenants and not open market bidding. On the basis of the offers for Palace Farm which actually materialised we have assumed that bidders would have worked out that the farm could profitably be farmed at rents of up to our open market rental value of £43,000. We bear in mind that it was a sealed bid/closing date situation and therefore not one in which bidders were likely to be “intoxicated by the atmosphere of the auction ring”.

[74] Knowing that there was competition, a bidder would ask how high he would have to go to stand a reasonable chance of getting the tenancy. In our view, even if there had been a reasonable supply of farms such as Palace coming onto the market in 2009 (such that the market was reasonably balanced), some bidders would still have given it, if not their best shot, then, at least, a good one. Even if other broadly comparable farms could be expected to come on the market shortly, why would a bidder wait for another one if Palace suited his purpose? Even in a reasonably balanced market there would, after all, be no guarantee of getting the next one either.

[75] In these circumstances our judgement - based on (a) the foregoing knowledge of existing 1991 Act rents in the locality, (b) our inspection of the farm, and (c) our knowledge, as a specialist court, of the state of the farming industry in 2009 – is that in a reasonably balanced market Palace Farm would still have achieved a rent of at least £40,000. Accordingly we consider that this figure fairly states its open market rental value as at Whitsunday 2009 stripped of distortion due to scarcity.

Marriage value

Evidence

[76] The evidence about marriage value was unsatisfactory. Production 217 notes which offers had marriage value, in the eyes of the compiler, and which did not. But it was prepared by Mr Oates, not Mrs Blair, and therefore involved inferences which he was less well placed to make than she was. It was based on production 134, a redacted summary of the offers, which was prepared by Mrs Blair. It is not easy to be sure what production 134 tells us about marriage value since the location of any other farms or land held is not disclosed. Mrs Blair herself confirmed that offers 17 (£47,500) and 22 (£45,000) did not have marriage value. Mr Oates accepts (on production 217) that numbers 15 (£42,200) and 5 (£47,000) had no marriage value. Mr Nisbet’s evidence in relation to offer 11 was not entirely clear. He denied the offer had marriage value – referring to it at one point as having “anti-marriage value” – but he did seem to us to be describing a situation in which the combination of his clients’ base unit and Palace would justify a scaling up of their machinery, which is a kind of marriage value.

[77] Mr King also gave evidence about marriage value. He did so on the basis of having perused productions 134 and 135. He had not found evidence of marriage value in any of the offers. There was evidence that most of the bidders farmed elsewhere but it was not said where. It could be in, for example, Caithness or Oxfordshire in which case there would be no marriage value.

[78] He thought offer number 5 (£47,000) clearly contained no marriage value: the bidder’s previous farm had been sold. Numbers 12 (£43,000) and 14 (£42,000), although they referred to other farms, could not be said to contain evidence of marriage value because we did not know where these other farms were. There was nothing to suggest they were local. Number 15 looked like someone who managed or worked on a farm rather than owned or tenanted one: there was no evidence of marriage value. In number 17 (£47,500) there was an existing farm but the intention was to establish a new beef fattening herd and grow the cereals required for the stock on Palace Farm. That, combined with the fact that again we did not know where the existing farm was, meant that there was no evidence of marriage value. (We ourselves note that Mrs Blair’s summary of this offer contains a suggestion that the bidders may be coming out of their existing tenancy.) Number 22 (£45,000) showed potential for marriage value but again we did not know where the other farm was. Number 4 (£30,170) contained positive evidence of marriage value because it said that Palace would be farmed along with an existing hill farm. This showed that the landlords had looked for positive evidence of marriage value and noted it when they found it. Where there was no such note we had to assume there was no marriage value.

[79] His own view was that a farm like Palace would justify investment in its own equipment, as a sufficient, stand-alone unit. Also the fact that most of the bids included the farmhouse supported the notion that Palace was going to be run as a farm managed in its own right.

[80] In cross-examination he accepted that Lothian Estates were better placed to assess marriage value in bids than he was: they had more information. Mr Lean asked whether there would be marriage value where an existing business required to invest in new machinery because of obsolescence and used the new machinery over two farms. He replied that an existing business enhanced by taking on Palace would be able to offer more rent because it was spreading costs over the whole enterprise. That, indeed, was his understanding of what marriage value was. In re-examination, on Mr Sutherland pursuing this line, Mr King said that if the original farm was not being retained there would be nothing with which to marry Palace and that if the intention was the scaling-up of investment and the full equipping of Palace in its own right, independently of the other business, there would be no marriage value. (We think the questioning in re-examination proceeded on a misunderstanding of Mr Nisbet’s evidence. Our understanding was that, although his clients intended to give up other land in the event that they got Palace, they intended to retain their base unit and use new machinery across both it and Palace.)

Submissions

[81] Mr Sutherland acknowledged that marriage value had to be stripped out of the rent of comparables; Trustees of J W Childer's Trust v Anker. Under reference to Compton Beauchamp v Spencer he defined it as “the additional rental value which is created by marrying a holding with other land occupied and farmed by the same tenant in order to create opportunities and economies through farming both areas in conjunction and which would not be available if the holding was farmed alone” (para 7 of written submissions). He then analysed the offers submitted as to whether they showed evidence of marriage value. Some of them – numbers 4, 18, 20, 23 and 27 – did. Others – numbers 5, 8, 10, 14, 15 and 17 – suggested that there would no marriage value as any existing farm was being given up. Mr Jackson’s approach, which involved excluding the offers which did not include the farmhouse, was appropriate. This would exclude the offer on which Mr Nisbet had advised. Yet Mr Nisbet had referred to the situation as one of “anti-marriage value”. None of the offers for which there was evidence of marriage value had been used by Mr Jackson in determining the open market rent of Palace. Therefore no reduction for marriage value was appropriate.

[82] Mr Lean submitted that Lothian Estates had been better placed than anyone to assess whether there was marriage value in the offers. Mrs Blair’s evidence should be preferred to Mr King’s analysis of the offers. Mr Nisbet’s evidence, properly understood, amounted to a description of marriage value in his clients’ offer because it involved a scaling up of machinery which would be justified by operating Palace along with their existing holding. Mr Jackson had misunderstood Mr Nisbet’s evidence and his approach to marriage value was therefore wrong.

Decision

[83] We do not consider it appropriate to make any deduction for marriage value. The picture appears to us to be that while some of the offers in excess of £40,000 included marriage value several did not. In particular, we hold that offers 5 (£47,000), 15 (£42,200), 17 (£47,500) and 22 (£45,000) did not have marriage value. Even Mr Oates’ assessment of the bids as shown in production 217 shows that two of them, number 15 (£42,200) and 5 (£47,000), had no evidence of marriage value. The evidence in relation to some of the other bids is not so clear but it is significant, in our view, that seven of the offers over £40,000 included the farmhouse, indicating that the bidders were likely to use the farm as an independent unit rather than in conjunction with an existing base. Although we agree with Mr Lean that Mr Nisbet’s evidence, on a proper reading of it, is to be taken as describing some element of marriage value, the fact that other offers above £40,000 did not persuades us that no deduction for marriage value is appropriate.

V APPLYING PALACE OPEN MARKET VALUE TO ROXBURGH MAINS

[84] Accordingly our conclusion is that the open market rental value of Palace Farm being let on a 15 year LDT as at Martinmas 2009, discounted for scarcity, was £40,000. Divided over 424 farmable acres, that produces a figure of £94.34 per farmable acre. In order to give distinct values to the different categories of land, we consider round figure values of £70 per acre for the permanent pasture and £97 per acre for arable to be reasonable.

[85] Applying these values to Roxburgh Mains produces a rental figure of £45,328 for the arable land (£97 x 467.3). So far as permanent pasture is concerned, we have divided the total of 154 acres into two categories comprising 102.56 acres of better quality and 51.44 acres of poorer pasture (fields 3765 and 4400, comprising “The Moor”), both parties agreeing (and our inspections confirming) that the Moor was of poorer quality than the rest. Applying the foresaid rate of £70/acre to the better quality produces a total of £7,179. We think 75% of that rate (£52.50) is appropriate for the poorer quality land, producing a round-figure total of £2,700 for it. Accordingly the pre-adjustment rent for Roxburgh Mains based on Palace is as follows:-

467.3 acres arable @ £97/acre = £45,328
102.56 acres better quality pasture @ £70/acre = £ 7,179
51.44 acres poorer quality pasture @ £52.50/acre = £ 2,700
TOTAL £55,207

We now require to consider what adjustments to that figure are appropriate.

(i) Agreed adjustments

[86] Two adjustments to the Roxburgh Mains rent as based on Palace have been agreed in the Joint Minute of Admissions. One is a reduction of £4,500 to reflect the difference in the tenant’s repairing and replacing liabilities between the farms (para 4 of the Joint Minute and production 235). The other is a reduction of £375 described as being in order to take account of cattle handling facilities provided by the tenant at Palace Farm (para 10 of the Joint Minute).

(ii) Adjustment for 1991 Act tenancy

Evidence

[87] The central evidence here is that of Mr Henson. He had been instructed by the applicants to report on how the value of a 1991 Act tenancy compared with an LDT and what adjustment, if any, in rental should be made between them. His report is production 192.

[88] He was asked to explain the main differences between the two types of tenure. He did so. His evidence on this was largely uncontroversial: the advantages of a 1991 Act tenancy as against an LDT are well understood and we need not repeat them. Suffice to say that Mr Henson stated them fairly and accurately both in oral evidence and in section 4 of his report.

[89] It was Mr Henson’s evidence that, over and above these advantages, a 1991 Act tenancy had a capital value for the tenant. That value equated to around 25-35% of the market value of the farm. No such value was acquired under an LDT unless the lease was for a substantial period: Mr Henson did not say how long that would have to be but was clear that 15 years was too short. In addition, in a 1991 Act tenancy, there was the “hope value” associated with the possibility that an absolute right to buy would be introduced.

[90] This capital value could be used as a means of adjustment between the rental of an LDT and a 1991 Act tenancy. It involved a valuation of the farm, the calculation of a rental value for the tenant’s capital interest and then a discount to reflect the possibility that the tenant may never be able to realise the capital value.

[91] Grade 3(1) arable land was reasonably valued at £6,000 per acre. The value of the tenant’s interest was therefore between £1,500 and £2,100 per acre. A reasonable assessment of open market yield for, or return on, arable land was 1.5%. That produced a rental equivalent of £22.50 to £31.50 per acre. An appropriate rate of discount, to reflect the possibility that the tenant may never see any of that value, was 50%. So the premium payable by way of additional rent on a 1991 Act tenancy was reasonably assessed at £11.25 to £15.75 per acre.

[92] The 25-35% range of values for the tenant’s interest was derived from market evidence, the guidance contained in section 55 of the 2003 Act (which deals with the right to compensation for yielding vacant possession), and Baird’s Executors v Inland Revenue Commissioners (in which the value of the tenant’s interest was valued at 25%). As to the first of these, he himself had been involved in a number of cases – perhaps three or four a year – in which 1991 Act tenancies had been brought to an end by the tenant being bought out. The sum paid had been based on a percentage of the value of the farm. The buying-out was sometimes at the instigation of the landlord and sometimes at the instigation of the tenant. Another situation was where the tenant was buying the farm and paid only a percentage of the open market value of the farm with vacant possession, to reflect the existence of the tenancy. Landlords were prepared to pay more than the value of statutory waygoing claims in order to get rid of a 1991 Act tenancy, which was a significant burden on the capital value of the farm. The situation was no different from any other commercial lease being bought out: it was only rarely that the tenant did not exploit the value of his interest. Landlords varied in their willingness to enter into such arrangements; hence the need to discount the rental yield by 50%. A 15 year LDT had no capital value.

[93] In cross-examination Mr Henson resisted the notion that the tenant’s capital interest was theoretical. It was not theoretical, it was real. It was based on evidence. He accepted that this was new methodology. It had resulted from Morrison-Low. He agreed that not every tenant could realise the value of that interest. There had to be a willing seller. But the fact that there was a capital value was shown by the depreciation in the value of a farm burdened with a 1991 Act tenancy. That depreciation was much greater than the capital value of the tenancy – the “appreciation in the tenant’s position”, as Mr Henson put it – but the existence of one reflected the existence of the other. The use of a 50% discount was not predicated on a one-in-two chance that the tenant would be able to realise the value of his interest. In re-examination he explained that if the odds on such realisation were as high as one-in-two a discount of 25% would be more appropriate. But Mr Henson thought his discount of 50% was a fair allowance to cover reasonably anticipated eventualities. There might be extreme cases – such as a farm which had high development value because of its situation – where 50% would be too high a discount. But for the generality of cases it was reasonable.

[94] He did not think the right to assign an LDT (sec 7 of the 2003 Act) was a great advantage compared to the benefits of a 1991 Act tenancy. So far as the requirement to provide fixed equipment and the waygoing compensation provisions were concerned, these were broadly the same. However, in reality tenants on LDTs were much more apprehensive about making investments than those on 1991 Act tenancies. The compensation provisions in the legislation were the same but tenants under short tenancies did not have the confidence to rely on them.

[95] Mr Henson agreed that general partners in limited partnership 1991 Act tenancies did not have the same security of tenure as individual tenants. Their position was somewhat closer to that of tenants under limited duration tenancies but still not identical. There were differences between the position of a general partner in a limited partnership 1991 Act tenancy and an individual under such a tenancy but these were not as great as those between the position of a tenant under an LDT and a tenant under a 1991 Act tenancy. He accepted, however, that since the key advantage of a non-limited-partnership 1991 Act tenancy was security of tenure, there was no difference between a general partner in a limited partnership 1991 Act lease and an individual under an LDT: neither of them enjoyed that degree of security of tenure. He accepted that it was therefore reasonable to look for a difference between rents as between the two types of 1991 Act tenancies. But other factors disguised the difference in security. What these factors were was not explored more fully but we took from this answer that, due to them, one did not see the difference in rent one might expect to see because of the different degrees of security. Reality did not always reflect what one might expect: for example why were LDT rents typically 20% higher than sitting tenant, secure tenancy, negotiated settlements?

[96] Mr Henson’s approach was broadly endorsed by Mr King. If anything he thought it conservative. He thought Mr Henson’s report could have made more of the importance of security of tenure in terms of a family establishing roots in a locality with all that entailed and the valuation could have included other elements of value, such as the buildings, rather than just the bare land.

[97] By the time Mr King gave his evidence the Practitioner’s Guide to Scottish Agricultural Rent Reviews had been published by the Central Association of Agricultural Valuers, Royal Institution of Chartered Surveyors Scotland and the Scottish Agricultural Arbiters & Valuers Association. Mr Lean referred Mr King to paras 15.5 and 15.5.5-15.5.11 which deal with “Non-1991 Act Comparables”. At para 15.5.8, under the heading of “Security and Succession”, it says “It might … be that landlords would have as much interest in keeping a tenant as a tenant will wish to avoid the inconvenience of moving unnecessarily”. It was not Mr King’s experience that landlords wanted to keep tenants on 1991 Act tenancies. Landlords wanted “management control” and the ability to bring tenancies to an end. Tenants preferred long term security but landlords preferred management control. In any event there was no evidence that landlords wanted tenants in place on 1991 Act tenancies on anything other than a rent which reflected the tenant’s security of tenure. He acknowledged that rents for LDTs and SLDTs were habitually higher than for 1991 Act sitting tenants. Nevertheless tenants valued the security of tenure of a 1991 Act tenancy and that could and should be reflected in the rent.

[98] Asked whether an uplift was appropriate for the qualified right to buy under the 2003 Act, Mr King thought it was. If one had two identical farms for let, one available under a 1991 Act tenancy and one not, the qualified right to buy was a factor which helped make the former more attractive.

[99] Under reference to paras 15.5.23-24 of the Practitioner’s Guide (which have to do with finance charges a tenant may incur in exercising the right to buy and the possibility that the opportunity to exercise the right to buy might be too remote to be usefully valued) Mr King said that his experience was that whenever secure tenants had the opportunity to buy or be paid out they engaged with it. They were ordinarily interested in “capital participation”. It was, however, relevant to have regard to the circumstances of the particular farm in question. Despite the fact that there had not been a sale of a farm to a tenant on Roxburghe Estate in 28 years the possibility of the opportunity to buy materialising was not too contingent or remote to be usefully calculated. There were some estates on which tenants had bought their farms where five years ago one would have said that there was no prospect of them ever being able to do so. Where there was a firm prospect of being able to buy it may be that the rent should be higher but whatever the situation on a particular farm the existence of the possibility of being able to buy should be taken into account.

[100] Mr Jackson also accepted Mr Henson’s approach. Indeed he adopted it in preference to what had been his own, which had been based on comparison of capitalisation of the tenant’s budgeted profits under an LDT and under a 1991 Act tenancy. Using Mr Henson’s approach, but applying different values to the various categories of land, he calculated the rental premium on a 1991 Act tenancy as compared to an LDT for Palace Farm at £8,000. That sum should be added to the Palace open market rent (as otherwise adjusted) to make it comparable with Roxburgh Mains. In cross-examination he accepted that in the 28 years for which he had worked for Roxburghe Estates no farm had been sold to a tenant and no tenant had been bought out.

[101] Mr Nisbet thought that if Palace had been offered on a 1991 Act tenancy it would have attracted a higher number of bidders and his own clients would probably have increased the landlord’s share of the divisible surplus to 65% in the hope of getting such a tenancy. But that would have been the absolute maximum possible, without compromising the sustainability of their operation.

[102] Mr Oates thought no premium was appropriate. He had never seen it applied in the many reviews he had carried out since the Court of Session’s judgement in Morrison-Low. These included negotiated reviews in which Palace had been used as a comparable. An uplift had never been applied. He agreed with what was said at paras 15.5.7 and 15.5.8 of the Practitioner’s Guide. Stability and continuity in arrangements were valuable to landlord and tenant alike. The right to buy would not be in the mind of a tenant bidding for a 1991 Act tenancy. That was because the landlord would know about the right to buy and would not be minded to let the farm if he had any intention of selling it further down the line.

[103] As to tenants being bought out, he knew of cases where tenants had given up holdings with “zero compensation”. Given Roxburghe Estates’ history of not selling to tenants or buying tenants out he saw no reason why a hypothetical incoming tenant would allow any uplift in his offer against the possibility of one or other of these things happening. Asked whether the rent for Palace would have been higher had it been let on a 1991 Act tenancy, he did not think so. Letting on a 1991 Act tenancy would be such a rare event that it might generate a higher rent but when one allowed for scarcity the under-lying rent would not be higher. Any differential in rent would have had to do with the difference in repairing obligations as between a 1991 Act tenancy and an LDT; it would have nothing to do with the tenant having an interest in the capital value of the holding. Furthermore, Mr Henson’s 25-35% assessment of that capital interest was a big assumption. The value of land was driven by factors other than return in the way of rent. There was no link between the capital value of agricultural land and rent.

[104] Asked about the rents of limited partnership 1991 Act tenancies, these were no different from the rents paid by individual tenants. He had carried out around 90 rent reviews since 2009, about 20% of which had involved limited partnership tenancies. In the “real world” landlords and landlords’ agents carrying out such reviews made no distinction as between the two types of tenant and had even told Mr Oates that there was no difference. In his experience the differences in security of tenure played no part in the level of rents being agreed.

Submissions

[105] Mr Sutherland referred to what had been said about the advantages of a 1991 Act tenancy in Morrison-Low, as already quoted. These had also been described in evidence by Mr Henson and Mr King. Mr Henson’s report (production 192) showed how the tenant’s interest could be valued. It would be open to us to take a different approach, and arrive at a different figure, on the basis of Mr Nisbet’s evidence of bidders being prepared to offer a 65:35 split for a 1991 Act tenancy. That sum should be not less than £4,000 on top of the landlords’ headline open market rent of £44,000. That was on the view that £44,000 was likely to be 55% of the divisible surplus (splitting the difference between 50% and 60%) and that a bidder for a 1991 Act tenancy would have offered the landlords at least 60% of the budgeted surplus.

[106] Mr Lean pointed to a lack of evidence “in the real world” demonstrating the difference between a 1991 Act open market letting and a letting on an LDT. Mr Henson had accepted that there was no standard methodology by which valuers measured this difference. No such methodology had previously been tested by the Court. Mr Henson had accepted that not every tenant would be able to realise the capital value of which he spoke. That was why he applied a 50% reduction. So Mr Henson’s methodology had to be treated with great care. Paragraph 14.2.5 of the Practitioner’s Guide stated that the capital value of land was “very unlikely to be relevant to the assessment of rent”. There was no historical or logical connection between the two. Capital values tended to be influenced by a wider range of factors than those bearing on agricultural rents. Mr Henson had acknowledged that a prospective tenant would take account of the particular Estate’s history as to selling farms to sitting tenants. Where there was no such history such a tenant would probably offer less. Roxburghe Estates had never sold to a sitting tenant, nor paid a “golden handshake”, in Mr Jackson’s 28 years in their employment. Paragraph 15.5.24 referred to this remoteness in the context of the qualified right to buy, saying that unless there was a realistic prospect of a sale in the near future, the capital value may be “too contingent to be material or usefully calculable”.

[107] LDTs and 1991 Act tenancies to limited partnerships were both forms of fixed duration tenancies. Yet there was no evidence of different rental values as between fixed duration tenancies and secure 1991 Act tenancies. One of the landlords’ comparables (Roxburgh Newton) was let to a limited partnership yet the landlords acknowledged that there was no difference in the rent to reflect the different degrees of security of tenure. Mr Oates had dealt with 90 sitting tenant rent reviews with leases to limited partnerships making up about 20% of the total, yet there was no difference in rental treatment between these and a fully secure 1991 Act tenancy to an individual.

[108] Mr Nisbet had given evidence that there was a limit to what someone could offer for a 1991 Act tenancy linked to the economic sustainability of the tenants’ operation. A tenant would not go beyond a 65:35 split of the divisible surplus for a 1991 Act tenancy. A tenant who ended up unable to pay the rent had no security of tenure regardless of the type of lease.

[109] Mr Galbraith and Mr Oates had both been aware of the open market letting of Palace Farm when they came to negotiate the rent of Smailholm in 2012 yet no uplift had been applied to the Smailholm rent to reflect the different types of tenure. There was no automatic adjustment in the market place for such a difference and the applicants had failed to justify one in this case.

Decision

[110] We have no doubt that in principle a 1991 Act tenancy ought to be more valuable than an LDT. That seems to us too plain to require explanation. The advantages of 1991 Act tenancies are well known. Paragraph [63] of the Lord Justice-Clerk’s opinion in Morrison-Low, already quoted,makes clear that an upward adjustment is to be expected. So we do not have any difficulty with the expectation that a 1991 Act tenancy would attract a higher rent than an LDT. The difficulty is in giving effect to that expectation on the facts of this case.

[111] The problem is that the bidders in the higher range of offers for Palace were already offering their maximum or close to it. Thus Mr Nisbet thought there might have been some slight leeway for his clients to have offered more had they been bidding for a 1991 tenancy but not much. We ourselves have no doubt that bidders would have raised every available penny in order to try to get a 1991 Act tenancy. So we would have expected offers to have been higher, although not, we think, by more than £2,000 to £3,000 (because bidders were already so near their limit). But that would have made no difference because the landlords would not have accepted an offer higher than £43,000 for fear of it proving unsustainable. The farm’s productivity remains finite whatever the nature of the tenancy. A tenant who has a 1991 Act tenancy may be able to obtain finance on better terms from his bank than someone on an LDT (although that was certainly not proved on the evidence) and, with investment, may farm more profitably in the long run but these speculative possibilities would not have allayed Mrs Blair’s concerns about the sustainability of rents above £43,000. It does not seem to us, therefore, that there is room for the application of a 1991 Act premium on the facts of this case.

[112] Having come to that conclusion on the facts we do not propose to express any view as to the interesting argument advanced by the applicants on the basis of Mr Henson’s evidence. We have set out his evidence and the applicants’ argument above for the sake of the record and lest it should be of interest in another case. But we think it better to leave it to be re-argued in a later case, if so advised, rather than express an opinion on it in this case, where there is no room to apply it even if sound.

[113] Mr Lean made no submission that there should be an adjustment the other way – by way of reduction of the Palace rent – to reflect the fact, spoken to by Mr Henson and Mr King, that LDTs are habitually let at rentals well in excess of 1991 Act tenancies. This is not the first time the Court has heard evidence to that effect. We heard it also in Ross v Campbell. We do not think such a submission would have been well founded. The difference between the two levels of rent arises simply because one is comparing open market competition with sitting tenant negotiations.

(iii) Soil characteristics

[114] The Joint Minute also agrees (para 9) that a reduction is required to the Palace rent “to reflect the differences in soil characteristics and the consequences thereof” but does not agree an amount.

The evidence

[115] What follows is compiled from the evidence of Mrs Blair, Mr Elliot, Mr Jackson and Mr Oates and the relative documentary evidence.

[116] As has already been mentioned, Palace is at a lower altitude than Roxburgh Mains. This makes it what Mr Oates described as an “earlier farm”. Both farms are predominantly Grade 3(1) in terms of MacAulay Institute classification (production 129) although Palace has a significant area of 3(2) at its south-eastern end. As previously noted, part of the Grade 3(1) land at Palace is affected by flooding from the River Teviot to the extent that the symbol “w” appears against it on the soil classification map and part of the Grade 3(1) land at Roxburgh Mains by stones to the extent that the symbol “s” appears against it close to its southern boundary. Palace is generally low-lying, with very little fall and water therefore takes some time to drain. It floods occasionally. It flooded twice in one year relatively recently (Mrs Blair thought this was in 2007) but that was exceptional.

[117] Again as previously noted, the stoniest fields at Roxburgh Mains are to the south-west and there is a general improvement as one moves north-east, an improvement which extends through the neighbouring farm of Over Roxburgh. The stoniest fields are Purgatory (8600), Whinfield (0004) and The Moor (3765). Additionally Mr Elliot mentioned the fields known as Pond (4032), The Hill (7368), The Glebe (0005) and the Road Field (1700) as being significantly affected but the last of those only “to an extent” (Mr Elliot’s evidence and productions 130 and 335). But, although he made particular mention of the foregoing fields, he gave evidence that all of his fields have a very high stone content. Our inspection confirmed the existence of high stone content for arable land of this classification.

[118] As to the level of any reduction, Mr Jackson proposed a reduction of 5% in the global rental figure (not just confined to the arable ground). That was for stoniness, which he considered to be the only soil characteristic requiring adjustment.

[119] Mr Oates approached the matter as one of soil quality affecting yield. He dealt with the stoniness as a separate matter requiring a further deduction to reflect the cost of stone removal. It was Mr Jackson’s position that there was no substantial difference in yield between Palace and Roxburgh Mains.

[120] The Palace letting particulars (production 136) show (at para 5) approximate average annual yields of “up to” 2.5 tonne/acre for spring barley and “up to” 3.5 tonne/acre for wheat. The use of the words “up to” suggest that the figures are maxima rather than averages and that is what we take the position to be.

[121] Production 169 is a handwritten note taken by Mr Jackson at, or shortly after, a meeting with Mr Elliot during a rent review on 1999. It notes average yields of 3.3 tonnes/acre for wheat, 2.2 t/acre for spring oats/barleyand 1.3 t/acre for oil seed rape. In evidence Mr Elliot accepted the figures for wheat and oil seed rape. He explained that he would have had accurate figures for these because they were sold off the farm. He thought he had made a mistake with the figure for spring oats/barley, however. Most of these were consumed on the farm so he could not be so sure of the figure but he thought the true yield was more like 2 tonnes/acre.

[122] Mr Oates produced a budget for Palace (production 242) based on an output of 3.5 t/acre for winter wheat and 2.2 t/acre for spring barley. The former figure is at the top end of the range suggested in the letting particulars prepared by Lothian Estates (production 136) whereas the figure for spring barley is lower (2.2 as against 2.5 t/acre). His figures were derived from conversation with Mr Gamble. He suggested that productivity at Palace may have increased since Mr Gamble’s arrival. Mr Gamble had spoken of the soil being depleted on his arrival. The suggestion was that the farm was not then performing to its full yield potential and, therefore, that the letting particulars’ figure for wheat was lower than the farm could actually produce. On the basis of his figures he argued that there was a 10% difference in yield between Palace and Roxburgh Mains.

[123] Mr Oates was subjected to detailed cross-examination on his figures for yield and the sale prices of crops and livestock in 2009. Reference was made to output figures for Caverton Mill (production 168), on any view of the evidence at least as good a farm as Palace. Mr Oates said he would expect the figures for winter wheat to be similar at the two farms. Production 168 shows otherwise. There is a spike in 2000 where a yield in excess of 4 t/acre was achieved but in the years 2001 to 2007 (the last year shown) a yield as high as 3.5 was achieved only in 2002 and 2004. In 2006 it was less than 3.0 t/acre. The figures for spring barley are consistently above Mr Oates’ figure of 2.2 t/acre for Palace, ranging as high as around 2.7 t/acre in 1999 and 2003 but, as we understood his evidence, it was largely on the basis of output of wheat that Mr Oates was basing the adjustment he proposed to the Palace rent to reflect lower yield at Roxburgh Mains.

[124] Mr Oates produced two budgets for Roxburgh Mains (productions 158 and 241). They contain different figures, the changes being due to further reflection and research. Mr Oates stood by the second of the two. It is based on a winter cropping regime of winter barley, winter wheat and oil seed rape. He postulated a yield of 2.75, 3.2 and 1.2 t/acre for them respectively. He did so on the basis of conversations he had had with Mr Elliot as to what was realistic. On the basis of these figures, compared with the figures for Palace (although there is no oil seed rape figure for Palace), he contended for a 10% reduction in the Palace rent to take account of lower yield at Roxburgh Mains.

Submissions

[125] Mr Sutherland submitted that there was no basis for an adjustment as large as 10% for yield difference. He submitted that the overall difference, taking the range of crops grown into account, was more like 2.89%, which is just over half what Mr Jackson was prepared to allow.

[126] Mr Lean did not elaborate on this issue in closing submissions but the tenant’s position is that we should accept Mr Oates’ evidence.

Decision

[127] The substantial difference in the soil quality is its stoniness. Despite the occasional flooding of parts of Palace, wetness is not really a significant problem on either farm. The stoniness is said to cause two problems. One is lower crop yields. The other is the expense of having stones removed. Mr Jackson’s suggested 5% reduction in the Palace rent was intended to cover both. The tenant separates the two problems and claims a reduction for each.

[128] We prefer the tenant’s approach because it makes what we are doing more transparent. Accordingly in this section we address the question of yield and in the next section we deal with the cost of stone removal.

[129] So far as yields at Palace Farm are concerned we prefer the information contained in the letting particulars as being more authoritative than the yields predicted in Mr Oates’ budget. Likewise, so far as yields at Roxburgh Mains are concerned, we prefer Mr Elliot’s evidence as to what he actually gets to Mr Oates’ hypothesised figures. So the comparison is between an “average of up to” 3.5 t/a for winter wheat at Palace and an average of 3.3 t/a at Roxburgh Mains, and “up to” 2.5 t/a for spring barley at Palace against an average of 2.0 t/a (Mr Elliot’s revised figure given in evidence) at Roxburgh Mains. The trouble with that comparison, of course, is that we are not comparing like with like. If 3.5 and 2.5 are maximum yields at Palace then the average will be less and, therefore, closer to the Roxburgh Mains figures. So there is no point in making a calculation based on these figures. However, it is clear that although the yield for wheat may be very similar on both farms there is a difference in the barley yield. From our inspection of the two farms it would not surprise us if there was some difference, Palace being the better farm. But neither the figures nor our inspection would justify a reduction of anything approaching Mr Oates’ 10%. On the other hand, we think the 2.89% put to Mr Oates in cross-examination (as a result of comparison with yields at Caverton Mill) is too low. Mr Jackson was prepared to accept a reduction 5%; this was an across-the-board reduction, not just confined to the arable land but it was also intended to include something for the cost and inconvenience of stone removal.

[130] Account also has to be taken of the fact that Palace is an “earlier” farm than Roxburgh Mains, with the flexibility of operation which that brings. It is convenient to do so under this head. We think that Mr Jackson’s 5% reduction is appropriate to cover these matters as well as yield difference. But, because we are making a separate adjustment in respect of the cost of stone clearing, we confine it to the arable land at Roxburgh. Based on a rental rate of £97/acre for that land, a 5% deduction amounts to £4.85/acre. Over the 467.3 arable acres of Roxburgh Mains that amounts to a reduction of £2,266.

(iv) Stone clearing

Evidence

[131] Mr Elliot gave evidence that stones have to be cleared from all fields annually. “Every time we grow a crop”, he said, “we have to lift stones by hand”. We saw it happening during our second inspection. It is, he said, a job his men “detest”, as we can well understand. He also gave evidence that, in addition to what is done annually by his own employees, he has to hire extra labour for the task from time to time. He spoke to production 210, a schedule of invoices vouching some of the costs he has occurred over the years. There would have been other times, he said, when labour or contractors had been hired for stone clearing over and above the occasions represented by these invoices. These invoices were for casual labour and took no account of his permanent employees’ time spent on the task.

[132] These invoices were subjected to analysis in cross-examination. One appears to be dated 1978, which long pre-dates the lease. There are several for the years 1996-99 inclusive. There are four for 2003 but they appear to relate to The Moor (not part of the arable land) and there is one for 2009. Most include VAT. Mr Elliot confirmed that he had permission from the Estate to sell the stone removed from the fields but he had found a use for most of it on the farm, as in the creation of corrals and hard-standings. He had not sold any.

[133] Mr Oates gave evidence that an adjustment for the cost of additional labour for stone clearing was appropriate. He based his figure on said invoices. However he accepted in cross-examination that it was inappropriate to include VAT and that some of them related to The Moor.

Submissions

[134] Mr Sutherland subjected the invoices to further scrutiny in his submissions. They referred to only six years within an overall period of 14 years. Accordingly there were eight years for which no invoices were produced. Since Mr Elliot had kept and produced those invoices there was no reason why he could not have produced invoices for work done in other years, if significant expense had been incurred in these missing years. The inference we were invited to make was that the invoices produced represented the only expenditure on stone clearing over these 14 years. The fact that Mr Elliot had permission to sell the stone was a compensating benefit, albeit he had not thus far done so.

Decision

[135] The evidence on this was unsatisfactory in two senses. One is that the evidence of the cost of additional labour is incomplete according to Mr Elliot. The other is that there is no evidence as to the time taken up on the task by Mr Elliot’s own employees. We appreciate that their time is not an additional cost to Mr Elliot as such, but an allowance for “opportunity cost” in terms of unavailability to do other things when engaged in stone-clearing is appropriate.

[136] With reference to production 210, eliminating the 1978 invoice and those which relate to The Moor and deducting VAT from the rest leaves a total of £7,032.42. Averaging that over the five years for which relevant invoices are produced comes to £1,406.48. There is no evidence that this level of expenditure, in the engagement of third parties to remove stone, was being incurred every year. If, therefore, £7,032.42 represents the total expenditure (net of VAT and confined to arable land) from 1996 to 2009, the average annual cost is only £502.32.

[137] Although it would be open to us to confine our adjustment to that figure, as the only figure proved in the evidence, we consider that our knowledge as an expert court allows us to go beyond that and that the proper discharge of our function requires us to do so. What we have done, therefore, is consider what the hypothetical tenant would allow for stone clearing. On the basis of the Court’s own knowledge of these matters we have hypothesised five men being paid £8 an hour clearing an average of 10 acres of arable land each hour. That is a cost of £4 per acre. Over the arable acreage of 467.3 acres that comes to £1,869.20. We consider that is a fair figure to allow as an annual cost for stone clearing, subject to a modest adjustment for the value of the stone removed. Overall, therefore, we consider a reduction of £1,700 in what would otherwise be the Roxburgh Mains rent is a reasonable provision to make for the cost of stone clearing.

(v) Water

[138] Roxburgh Mains takes its water from two sources. The north and west end of the farm and the corralsare on the Scottish Water “Business Stream” supply. The rest of the farm, including all of the buildings,is on a private supply provided by the landlords. It takes the form of a borehole which also serves other farms and the village of Roxburgh in addition to Roxburgh Mains. There is no metered charge for this supply as there would be for a public supply. But how the supply should be treated for rental purposes is a matter of dispute.

Evidence

[139] Mr Elliot explained that he had come to Roxburgh Mains as a result of accepting the tenancy in lieu of that of Rawburn Farm, where he had been previously. That was because the Estate wanted greater control of the grouse moor around Rawburn. He had told Mr Batchelor, Mr Jackson’s predecessor as Roxburghe Estate Factor, that he would do so only if he got the new farm on the same terms and conditions as the old. Rawburn had a free, private water supply and he had taken Roxburgh Mains on the same terms, except that, in lieu of any charge, he would undertake to keep an eye on the borehole and pump, checking it daily and reporting any problem to the Estate. That had been the arrangement ever since entry. He denied that water consumption from the private supply had increased substantially due to higher livestock numbers since the arrangement had been made. The corrals, where much of his additional stock was watered, were supplied by Scottish Water.

[140] Mr Jackson knew nothing of an agreement between Mr Elliot and Mr Batchelor as to there being no charge for the water supply. Mr Batchelor had not told him about any such agreement, it was not set out in the lease and the Estate had no record of it, despite Mr Batchelor having been a meticulous man. Keeping an eye on the water supply was not onerous and was something which Mr Elliot would want to do in his own interests. Any agreement made by Mr Batchelor would have been on the basis of water usage at the time. Mr Jackson’s understanding was that usage was now substantially more.

Submissions

[141] Mr Sutherland invited us to hold that the written lease had not been varied by any agreement between Mr Elliot and Mr Batchelor. His understanding of the evidence was that any such agreement had been made prior to the lease being entered into, yet it was not reflected in the lease. On the contrary, the Regulations and Conditions for the letting of Roxburghe Estate farms, which were incorporated into the lease, contained a provision (Clause II(c)) permitting the Estate to charge for a private water supply. Had there been any agreement of the kind spoken to by Mr Elliot that would have been taken out. In terms of sec 13(3) of the 1991 Act, the Court had to determine the rent “having regard to the terms of the tenancy” and there was no evidence that a free water supply was a term of the tenancy. At its highest, the agreement between Mr Batchelor and Mr Elliot had been a gentleman’s agreement, not amounting to some sort of antecedent qualification on the terms and conditions of the written lease.

[142] Mr Lean did not deal with this issue specifically in his written submissions but it was clear enough that he wanted us to hold that the agreement spoken to by Mr Elliot had the effect of incorporating a condition into the lease that there would be no charge for private water supply, by way of increase of rent or otherwise.

Decision

[143] We accept Mr Elliot’s evidence on this. We found him to be a credible witness. We therefore hold that there was such an agreement, made orally, between himself and Mr Batchelor. Although the lease does not refer to it explicitly, its terms are consistent with such an agreement. Clause 7(v) of the lease says “The water pump serving the farm as well as other Estate properties will be maintained by the Proprietor, but the Tenant shall have the responsibility of checking the working of the pump daily and advising the Proprietor at once of any deficiency in supply or defect of the pump”. That reflects part of the agreement spoken to by Mr Elliot. The provision in the Regulations and Conditions referred to by Mr Sutherland is permissive. It allows a charge to be made. If this power was ever exercised it could only have been by the charge for the water being included in the rent, because there is no suggestion that Mr Elliot has ever been invoiced for it separately. But that is not the sort of charge the provision seems to us to contemplate. It makes no mention of an increase in rent but suggests, rather, a distinct, separate, charge.

[144] Had the power been exercised by way of inclusion of a charge in the initial rent, that is the situation in which we would have expected the relevant part of Condition II(c) to be deleted or disapplied. Similarly, had the power been exercised at the outset of the lease, a meticulous Factor, such as Mr Batchelor, could be expected to have recorded it. Accordingly, we consider that the absence of documentation, far from being adverse to Mr Elliot, favours his position. His position is further fortified by the fact that he has been discharging the function of monitoring the supply throughout the lease. We therefore hold that the terms of the lease are to be taken as including agreement that no charge will be made for the private water supply by way of rent or otherwise. Accordingly no adjustment to the Palace rent in respect of water supply is appropriate.

(vi) Buildings

[145] The landlords contend that the Palace rent (and that of the comparables) requires to be adjusted to reflect the difference in the provision of buildings as between the holdings.

Evidence

[146] Mr Jackson’s methodology was to assess the total floor area of all of the landlords’ buildings, adjusted for type and quality, and divide that by the acreage of the farm, giving a figure for square footage per acre which could then be used for comparison with other farms. The adjustment made for type and quality was to count the more traditional and less functional buildings at only half of their floor area. He then applied build costs to the excess at a rate of £13.27/sq ft, a figure derived from a number of sources including the Farm Building Cost Guide (Scottish Agricultural College, 2005),less any grant applicable. This produced a capital value on which a rental return of 10% was charged. That percentage rate was derived from the Post Lease Agreement, in terms of which additions to the fixed equipment carried out by the proprietor were to bear interest on their net cost at that rate (PLA clause 3). In cross-examination he explained his reasoning as being that if the provision of buildings by the landlord had originally been the same as on the comparable farms and if the landlord had then gone on to provide additional buildings at Roxburgh Mains interest on the net cost of these extra buildings would have been charged at 10%. It was true that lower rates of interest were used in relation to certain other farms on the Estate, but that was the rate for Roxburgh Mains. It was also true that when one compared some of the comparables with each other the variation in building provision was not reflected in the rent but it was nevertheless appropriate to take account of it in a comparative exercise. Rent was not just based on the bare land of a holding; it took account of the fixed equipment provided by the landlord as well. Some mechanism was required which would allow comparison of building provision as between holdings. That had been recognised by this Court in Broadlands Properties Estates Ltd v Mann and the method he had used was the same as used by the Court in that case.Production 202(b) shows the calculation, bringing out an adjustment of £2,616.

[147] Mr Oates’ position was that no adjustment of this kind was appropriate but, if he was wrong about that, Mr Jackson’s approach was flawed because it valued only the excess square footage which one holding had compared with another, whereas the whole floor area of all of the landlords’ buildings had to be taken into account. In any case an adjustment was not appropriate because when offering for a holding one would not be valuing the buildings separately. One would be looking to make the best use of the fixed equipment provided. Lack of equipment could be a limiting factor but where there was over provision of buildings one would not want to be paying rent for the excess; a bidder would not want to pay rent for something he did not need.

Submissions

[148] Mr Sutherland invited us to adopt Mr Jackson’s approach and its results under reference to Broadland Properties Estates Ltd v Mann.

[149] Mr Lean submitted that an adjustment was only appropriate where it could be demonstrated that a difference in the landlord’s provision of building had, or would have, a material influence on the rent paid. That had not been demonstrated here. He drew attention to the following passage from the Court’s decision in Broadlands:-

“As a help in the comparability studies of the buildings we have calculated the extent of the floor areas of buildings provided by the landlords on the subject holdings. From that figure we have deducted an area equivalent to that which has been provided by the monies received as grant aid by the landlords. We have expressed this in terms of square metres per acre, and then compared the result with the areas of similar provision on the comparables.

Whilst we have made this comparison, we have not rigidly applied it in making adjustments and have taken into account the quality and usefulness of the buildings in question. For instance a derelict bothy or byre is of much less rental value than a new portal frame building. We have however found it to be a helpful indicator in making adjustments between holdings. The adjustments which we have made therefore take account of the individual nature of the provision on each holding.” (p 12)

[150] Mr Lean referred to production 236, an analysis by Mr Oates of the landlords’ approach to the valuation of buildings. That disclosed that there was no relationship of any kind between the relative provision of landlords’ buildings and the relative rents.

Decision

[151] We consider that it is appropriate to make an adjustment to the Palace rent to reflect the more generous provision of buildings at Roxburgh Mains. Individual bidders may or may not make specific provision for buildings when calculating the rent they are prepared to offer. Individual bidders may or may not intend to make full use of the buildings on a generously equipped holding. But all of that is beside the point. What the Court is engaged in at this point in the exercise is an objective comparison of holdings. The extent of provision of landlords’ buildings is something which varies from one holding to the next. It is therefore necessary to make an adjustment for it. The Court has no basis for assuming that the hypothetical tenant will not be prepared to pay a higher rent for a holding with more buildings. Instead the contrary assumption is the appropriate one: one would expect a tenant to pay more for more. There may be a limit to that, of course. It is possible to imagine a holding so lavishly provided that no hypothetical tenant is going to have a use for it all. But if such a state of affairs exists anywhere it is not at Roxburgh Mains, where good use seems to be made of all building provision. We would expect prospective tenants bidding for the farm to anticipate making similar use of them.

[152] As to Mr Jackson’s particular approach, it seems to us to be a fair and reasonable way of carrying out the exercise of comparison. It is a refinement of the Court’s self-confessedly “rough and ready” (see, for example, its comparison of the Crowhall and Corrachie holdings at page 66) methodology in Broadlands.We do not see in it the fundamental flaw which Mr Oates suggested. On the contrary, it seems to us to be logical to have regard only to the extent by which floor area square footage/acre on one holding exceeds that on another. Accordingly we adopt Mr Jackson’s approach.

[153] However, before we apply it, we have to rule on a building, the status of which was in dispute. It is building number 15 on production 211. The doubt arises from the historic treatment of the building and productions 121, 213 and 324 comprise correspondence between the respondent and Mr Jackson relating to it. It was formerly a cattle shelter with a mono-pitch roof. It was in a dilapidated state. Although the letter is not produced, the respondent seems to have written to Mr Jackson on 24 August 2005 suggesting that it should be replaced with a cattle court and bull pens. Production 324, dated 7 September of that year, is a copy of Mr Jackson’s reply. Chronologically, although not sequentially in terms of production numbers, it was followed by productions 212, being the respondent’s reply of 20 September, and 213, being Mr Jackson’s response dated 20 October agreeing matters. It is not necessary to go into the detail of this correspondence. The agreement which emerges from it is that the Estate would erect the frame and roof of the new building while the respondent would be liable for concreting and drainage work as well as the provision of some telegraph poles as stanchions. The respondent decided not to go ahead with the bull pens. The resulting building was to continue to form part of the fixed equipment of the farm, replacing what had gone before (production 212) but was not to result in an increase in rent (production 212) and the work to be undertaken by the respondent was not to be treated as a tenant’s improvement for the purposes of compensation (production 212). The respondent argues that the building should not be treated as part of the fixed equipment provided by the landlord for the purposes of this rent determination. But that appears to us to confuse the Estate’s agreement that the additional provision they were making should not result in an increase in rent at that point in time with willingness that it should not be treated as part of the fixed equipment at all, which the Estate clearly did not agree in terms of the foregoing correspondence. The result is that the building forms part of the fixed equipment. Accordingly no adjustment falls to be made to Mr Jackson’s calculation and we give effect to it by an addition of £2,616 to the Palace rent.

(vii) Cottage

[154] There are no cottages at Palace. There are two in the lease of Roxburgh Mains. One is occupied by Mr Elliot’s son. Although we do not have a clear note of it, we understand the other to be occupied by an employee. The lease contains a power to resume cottages which are unused.

Evidence

[155] Mr Jackson explained that although there was a power to resume unused cottages in the lease the Estate sometimes gave tenants permission to sub-let them. On the assumption that one of the cottages would not in fact be needed by a hypothetical tenant, it was likely that consent to a sub-let would be given. On that basis, Mr Jackson argued that an adjustment of the Palace rent equivalent to the anticipated rental income of the cottage less 30% for repairs and periods when the cottage may be vacant was appropriate. The adjustment he proposed was £2,800 but since this would yield no benefit to the tenant (his profit from the letting being wholly swallowed up in the rent for the farm) in cross-examination he was persuaded to modify the adjustment to £1,400, so that the Estate and tenant were benefiting equally from the sub-letting of the cottage.

[156] There was conflicting evidence from Mr Nisbet and Mr Oates as to what labour regime a hypothetical tenant would apply: Mr Nisbet favouring the use of contract labour and Mr Oates envisaging most of the work being done by full-time employees. Mr Oates’ calculation (production 239) brought out a labour requirement of 3.3 employees but this was corrected to 3.04 in the course of cross-examination. Mr Nisbet spoke to the use of contractors as being common in the industry and he expected a hypothetical tenant to adopt that practice. Mr Oates’ reasoning was that livestock needed people to be available round the clock although they would not always actually be engaged in tending the stock. Accordingly, since employees were going to be needed for that purpose anyway, it made sense to use them for the rest of the work of the farm when they were not engaged with the stock and thus reduce any need to employ contractors.

Submissions

[157] Mr Sutherland urged us to adopt Mr Nisbet’s view. As Mr Nisbet had said, the use of contractors was common in the industry. In this case the prospect of freeing up one of the cottages for sub-letting was a positive reason for using contractors. We should adopt Mr Jackson’s proposed adjustment of £1,400.

[158] Mr Lean, correspondingly, adhered to Mr Oates’ position, which meant that both cottages would be required for farm workers. No adjustment was therefore appropriate.

Decision

[159] We prefer Mr Oates’ position on the question of what kind of labour regime a hypothetical tenant would be likely to employ. We agree that it would be desirable to have employees available to tend to the needs of the livestock and that it would make sense to make the most efficient use of their time. Accordingly we consider that both cottages would be required for employees and that no adjustment is therefore appropriate under this head.

(viii) Potatoes

[160] There are two issues which determine whether an adjustment should be made in respect of potatoes. The first is whether its suitability for potatoes enhanced the open market rental value of Palace Farm. The second is whether Roxburgh Mains is suitable for potato growing.

Evidence

[161] So far as the first of these issues is concerned the crucial evidence is production 217 and what it shows about whether the bidders for Palace intended to grow potatoes. Half of them (13) did. Of those offering a rent of greater than £40,000, five did and four did not. The four which did not were the four highest offers. Mr Nisbet gave evidence that his clients had intended growing potatoes at Palace and he thought most people would. But he accepted that production 217 showed that not everyone who had offered had intended to do so. Mr Oates also included potatoes in his hypothetical budget for Palace and explained the value of sub-letting ground to potato growers in terms of the high rents paid.

[162] As to the second issue, we heard a lot of evidence but it is not necessary for us to go into it in detail given the view we have taken, below, on the first issue. So we shall summarise it. Mr Jackson and Mr Nisbet both spoke to the suitability of Roxburgh Mains for potato growing. It had been done in the past. Production 335 was a map showing the fields in which potatoes had been grown, in rotation, from 1967 to 1985. It would require irrigation but that was possible from the River Teviot and evidence was led as to its cost. Mr Jackson gave evidence that Mr Forrest, the previous tenant, had told him that Roxburgh Mains was a good potato growing farm. Mr Forrest had given up for reasons unrelated to the suitability of the farm for potatoes. Mr Jackson also gave evidence of potatoes being grown, or having been grown, on Over Roxburgh and Roxburgh Newton. The reasons for which potato growing had stopped on Over Roxburgh included an employee having been taken ill, weather conditions and poorer market conditions. Mr Nisbet said that the Teviot Valley was well known for growing potatoes. The previous tenant had grown potatoes. With reference to the stone content of the soil, modern machinery, such as de-stoners, made the growing of potatoes more feasible on areas previously thought unsuitable.

[163] Mr Elliot gave evidence that he had often discussed with Mr Forrest his reasons for having stopped growing potatoes. The reasons were to do with the stoniness of the soil. Mr Elliot had been contemplating sub-letting some fields to a potato merchant but Mr Forrest had told him that the modern machines used by potato growers would pulverize the drains, cancelling any benefit of the sub-let. In former times potatoes had been lifted by hand but it had become more difficult to get people to do that. That had been another reason for Mr Forrest giving up. When the remark attributed to Mr Forrest, about Roxburgh Mains being a good potato growing farm, was put to him, Mr Elliot replied “Well, he gave it up, which says it all.” The fact that potatoes had not been grown since 1985 meant that the ground was very clean. There was always demand for clean ground from potato growers but no one had ever approached him about leasing ground at Roxburgh Mains for potatoes.

Submissions

[164] Mr Sutherland submitted that whilst it sounded logical that a hypothetical tenant would pay more for a farm on which he could grow potatoes, or sub-let to potato growers, the evidence here showed that in the real world that proposition did not always hold true. The offers disclosed no correlation between an intention to grow, or sub-let for, potatoes and levels of rent offered. The mid-point of the range of offers was £39,380 and 10 of the offerers who intended to grow potatoes or vegetables were below that. Of the five offerers above the mid-point who intended to grow potatoes none of them was among the four highest bidders. Accordingly there was no correlation between the rent being offered and the likelihood of growing potatoes. Mr Sutherland then went on to discuss what level of adjustment would be appropriate were we to hold that an adjustment should be made but, since that is not the conclusion we have come to, we need not go into that.

[165] So far as the second issue was concerned, Mr Sutherland referred to the evidence given by Mr Jackson and Mr Nisbet. Their evidence in relation to the suitability of Roxburgh Mains for potatoes was fortified by the fact that potatoes had been grown on Over Roxburgh each year from 1989 to 2012 (production 178). Although there had been evidence about issues with drainage, stone and damage caused by harvesting machines there had also been other reasons for the tenant there having given up the growing of potatoes. A bidder for Roxburgh Mains in 2009 would have known that potatoes were being grown on the neighbouring farm, which was of very similar land quality. It was likely, therefore, that he would have intended to grow potatoes on Roxburgh Mains.

[166] Mr Lean concentrated on the second of the foregoing issues in his submissions. He relied on the evidence of Mr Elliot as showing the unsuitability of Roxburgh Mains for potatoes. That had to do with the stoniness of the soil, the shallowness of the drains and the lack of irrigation. He referred to the reasons for which the previous tenant had stopped. Neither Mr Jackson nor Mr Nisbet had personal knowledge of the drainage at Roxburgh Mains. Mr Elliot’s evidence as to the damage modern potato machinery would cause to the drains should be preferred. Mr Nisbet had confirmed that potato growers actively sought out land suitable for potatoes so it was telling that no one had approached Mr Elliot in all his time on the farm to ask about a sub-let. Over Roxburgh was, in Mr Elliot’s view, a better farm than Roxburgh Mains yet one of the reasons for which the tenant there had given up potatoes in 2012 had been the stoniness of the soil. From all of that we should draw the conclusion that a hypothetical tenant making an offer for Roxburgh Mains at Whitsunday 2009 would not have thought it possible to grow potatoes there profitably.

Decision

[167] So far as the first issue is concerned, the four highest bidders for Palace did not intend to grow potatoes. Although these have been disregarded (as being unsustainable) in our calculation of open market rent, they do provide evidence that there were people in the market prepared to offer in excess of our figure for open market rental who did not intend to grow potatoes. What we have identified as the open market rent is not therefore predicated on the suitability of the farm for growing potatoes: it would have attracted bids at the same level even if it was not suitable for growing potatoes. In our judgement the same would have been true for Roxburgh Mains, had it been on the open market in 2009. No adjustment is therefore appropriate in respect of potatoes.

[168] Although, given that conclusion, our decision on the second issue is not material it is appropriate that we express a view on it. We can do so briefly. The most telling piece of evidence in relation to this issue is, in our view, that no potato growers have approached Mr Elliot with a view to sub-letting land from him. That is telling because (a) it must be known that Roxburgh Mains used to grow potatoes, (b) not having grown potatoes since 1985 the ground there is very clean, and (c) there is constant demand from potato growers for clean ground, including active searching for the same. Further, we consider that a hypothetical bidder would have attached great significance to the fact that potato growing had been given up by the previous tenant. He might also attach significance to the fact that potatoes were still being grown “over the wall” on Over Roxburgh but the practice on Roxburgh Mains itself would have weighed more heavily with him. So far as the advent of modern machinery having made marginal potato land more attractive than it used to be, a bidder would, we think, be as cautious as Mr Elliot as to the risk of damage being caused by such machines. Accordingly we think such a bidder would not have intended to grow potatoes on Roxburgh Mains.

Summary

[169] The result of the foregoing adjustments is as follows:-

Unadjusted rent £55,207
Add
Additional fixed equipment at RM £2,616
£57,823
Deduct
(i) More onerous repairing obligations £4,500
(ii) Cattle-handling facilities provided by tenant £375
(iii) Soil characteristics £2,266
(iv) Stone clearing £1,700
£8,841
Adjusted rent £48,982

That figure translates into a rate per acre of £77.19 over the 634.57 acres of the whole farm and £78.84 per farmable acre.

VI COMPARABLES

[170] Subsection 4(a) of sec 13 requires the Court to have regard to “information about rents of other agricultural holdings (including when fixed) and any factors affecting those rents … except any distortion due to scarcity of lets”. Accordingly, notwithstanding that in the present case we have evidence of an open market rent, we must also consider the evidence led as to the rents of other holdings. In Morrison-Low v Paterson such evidence was described by the Lord Justice-Clerk as being “[a] more indirect [than a let on the open market], and less satisfactory, indicator of open market value”. In the present case, Mr Lean, in closing submissions, urged us to be cautious about drawing conclusions from a single open market letting and argued that it would be reasonable for us also to have regard to the sitting tenant comparables presented by the parties.

[171] There are five of these, four advanced by the applicants and one by the respondent. Mr Sutherland submitted that the respondent’s comparable, Smailholm Mains, should not be used as a comparable. That was because (i) the best evidence was the evidence as to the open market rent of Palace Farm, (ii) where using evidence of negotiated rents it was better to use farms on the same estate as comparables and (iii) more adjustment was required since it was not in the heart of the Tweed Valley, contained some Macaulay Grade 6 land and was at a higher elevation. The test was whether the nature and extent of adjustment required meant that the proposed comparable was helpful in reaching a determination of the rent properly payable; Kinnaird Trust and Boyne. The Court was entitled not to use a “comparable” where the differences between the two farms were such that the adjustments required would be too great; Grant v Broadlands Properties Estates Ltd.

[172] We reject Mr Sutherland’s submission, although we do, of course, accept that we would be entitled not to use a comparable if we thought the adjustment process would lead to an unreliable outcome. The fact that the farms are on different estates posed no significant problems for either Mr Jackson or Mr Oates in the making of adjustments and, whilst the geographical differences are undeniable and must be considered, our inspections satisfied us that Smailholm is broadly comparable to Roxburgh Mains.

[173] Mr Jackson and Mr Oates both prepared adjustment calculations for all of the comparables, arriving at rents for Roxburgh Mains on the basis of adjusting the rents of the comparables. Mr Jackson’s are at productions 341 to 345 and Mr Oates’ at 227 to 234. These were refined in the course of the evidence and updated versions were lodged in place of the originals. All of the comparables feature 1991 Act tenancies and rents agreed either in 2008 or at Whitsunday 2009. The 2009 rents are as shown in the table at para [72].Both sets of adjustments proceed on the basis of breaking down the rents of the various comparables as between arable and grass (sometimes with sub-divisions) and calculating the rate/acre for each category. These rates were then applied to the corresponding categories at Roxburgh Mains. The rates per acre were very similar and therefore produced very similar pre-adjustment rent figures for Roxburgh Mains. However these figures then had to be adjusted to take account of differences between the two holdings and the terms on which they were held. These adjustments led to widely divergent figures. We have set out the adjustments for each comparable in tabular form in an Appendix to this judgement together with a third column showing the amount of any adjustment we consider appropriate. Our decisions as to which adjustments to accept and which to reject are consistent with, and explicable by, the way we have treated adjustments of the Palace rent, supplemented by footnotes. Where parties’ figures for a particular adjustment have been fairly close (as, for example, the altitude adjustment for Smailholm) we have simply taken an average as being an appropriate adjustment.

Adjustment for SFP

[174] However, there is a major adjustment proposed by the landlords which is not shown in these tables. It is for Single Farm Payment (SFP). The landlords argue that an addition of £8,880 should be made to each of the adjusted comparable rents to reflect the fact (as they assert) that SFP was not taken into account when the rents of the comparables had been negotiated.

Evidence

[175] Most of the evidence on this came from Mr Jackson. It is not disputed that Roxburghe Estates did not take SFP into account in their 2008 and 2009 negotiations. Mr Jackson explained that they wondered whether they should and decided against it. The reason for uncertainty was, of course, that the law on the matter was not clear until the Court of Session issued its judgement in Morrison-Low on 9 February 2012. As at 2009 even this court’s decision in that case had not been delivered but the question was already a matter of controversy as between landlords and tenants.

[176] The landlords’ practice seems to have been similar at Smailholm, on Mellerstain Estate. Mr Galbraith’s evidence was that SFP had played no part in the 2009 rent negotiations for that farm. There had been a subsequent round of negotiations in May 2012, by which time the law on SFP was clear, when the rent had been increased from £25,000 to £28,500. Mr Galbraith described that as a “concessionary” rent, lower than the bottom end of the range of values the Estate had had in mind going into these negotiations.

[177] The only tenant of any of the comparables who gave evidence was Mr Thomson, one of the partners in the Caverton Mill tenancy. His evidence was that in his family’s negotiations with Roxburghe Estates they had wanted to make sure, at the very least, that not all of their SFP was taken into account because, as a result of how they had historically farmed the holding, they were getting a higher than average level of SFP. Nevertheless the partnership had taken account of SFP as part of the aggregate income of the farm. SFP was essential to the profitability of the farm and the rent the partnership had had in mind in their negotiations with Mr Jackson had been “based on how [they] could run a profitable farming business”. He was emphatic that the partnership would not have paid a rent of £52,000 for the farm. That figure is from production 171, a calculation of a possible rent for Caverton prepared in Mr Jackson’s office, which includes a figure of £61,000 for SFP as part of the gross farm output and uses factors of 12.5% and 15% of gross output in the calculation of rent.

[178] The figure proposed by Mr Jackson for this adjustment was arrived at as follows. Parties were agreed that an appropriate SFP figure for Roxburgh Mains was of the order of £60,000. To this Mr Jackson applied a factor of 14.8%. That was the proportion which the rent agreed in 1999 (£27,500) bore to the estimated gross output of the farm at that time (£185,200, inclusive of arable area payments and livestock subsidies). Applying that factor to £60,000 produces a figure of £8,880.

[179] Mr Oates was clear that tenants would have taken SFP into account in 2008 and 2009. That was because SFP was critical to the profitability of most farms. He knew of only one farm which operated profitably without it.

Submissions

[180] Mr Sutherland moved us to accept both Mr Jackson’s methodology and the evidence on which it was based and make the proposed adjustment.

[181] Mr Lean opposed this adjustment as being both methodologically wrong and unfounded in the evidence. Mr Jackson’s methodology was “not in accordance with how rents should be fixed having regard to the open market test which is set out in Section 13 and which was explained … by the Lord Justice-Clerk in the Moonzie decision” (respondent’s closing submissions, para 41). The adjustment was unfounded in evidence because, although it had been established that Roxburghe Estates had left SFP out of account when negotiating rents in 2008 and 2009, it had not been established that the tenants had left it out of account. So far as Caverton Mill was concerned, there was indeed evidence from Mr Thomson that the tenants had taken it into account.

Decision

[182] As to whether an adjustment for SFP should be made against the background of the foregoing evidence, we are satisfied that it should. We accept, on the evidence of Mr Jackson that, had the law been clear when the rents of the comparables were being negotiated in 2008 and 2009, Roxburghe Estates would have demanded, and tenants would have paid, higher rents. We say that notwithstanding Mr Thomson’s evidence that his partnership would not have paid a rent of £52,000. There may have been other reasons for not being willing to pay that particular figure but had the law been clear in 2009 and had Roxburghe Estates been prepared to take the matter to the Court both parties would have known that only an upward adjustment to take account of SFP was to be expected. We are not saying, of course, that either tenants or the Court would have acceded to whatever the landlord asked for by way of adjustment. It would have to be justified. It would have to be borne in mind that the passing rents on the comparable farms would, as at 2008 and 2009, have contained an element for subsidy based on the old output-based subsidies. However the fact remains that Roxburghe Estates were not driving as hard a bargain as they might have in 2008 and 2009 because of a considered decision not to include SFP.

[183] As to the Mr Jackson’s methodology, it seems to us both simple and sensible. It simply adds on to the adjusted rents of the comparables the share of SFP which the landlords might, in his submission, reasonably expect to get as part of their share of the output of Roxburgh Mains. It is not an approach thought up for the purposes of this case. Instead it reflects that taken in production 171, referred to above, a calculation prepared in connection with the 2009 Caverton Mill negotiations. In our view his apportionment of 14.8% of SFP to rent is not excessive, even allowing for a pre-existing element attributable to subsidy in the passing rents. Reverting to Mr Lean’s criticism of this approach as not reflecting how rents are to be fixed having regard to the open market test, it seems to us that if the law had been clear in 2009 and this had been an open market transaction tenants might well have been offering more than 15% of their SFP even in a reasonably balanced market.

[184] In accepting Mr Jackson’s approach, we found on what was said by the Lord Justice-Clerk in Morrison-Low at paras [73] – [74]:

“[73] … The important starting point, in my opinion, is that in modern times open market agricultural rents have been set in a subsidised market place. It is common ground that the output-based subsidies that preceded the SFP were recognised to be a material factor in the framing of an open market rental bid and in the assessment of rent in terms of section 13.

[74] SFP is a producer-support subsidy granted on a different basis; but it is a subsidy nonetheless. It was intended as a straight replacement for the previous system that would leave the amounts paid to farmers unchanged. I cannot see how the payment to the tenant of one form of agricultural subsidy in place of another can justify the conclusion that the new form of subsidy must be irrelevant to the assessment of open market value.”

In taking the approach he did, Mr Jackson was treating SFP in the same way as he had treated the output-based subsidies in 1999. That approach seems to us to be entirely in keeping with the passage quoted.

[185] Mr Jackson’s figure of £8,880 equates to £14 an acre over the 634.57 acres of Roxburgh Mains. Applying that addition to each of the comparables, as adjusted in the Appendix, produces the following adjusted rents:-

Caverton Mill: £42,611 (£67.15/acre)
Over Roxburgh: £49,700 (£78.32/acre)
Roxburgh Newton: £44,255 (£69.74/acre)
Smailholm: £40,524 (£63.86/acre)
Windywalls: £47,136 (£74.28/acre)

The average of these is £44,845 or £70.67 per acre. The most closely comparable of these farms to Roxburgh Mains is Over Roxburgh. It will be seen that the rent per acre arrived at for it is just £1.13 more than that arrived at for Roxburgh Mains as a result of the open market evidence from Palace.

VII CURRENT ECONOMIC CONDITIONS IN THE SECTOR AND OTHER REGARDS AND DISREGARDS

[186] Little mention was made of subsec 4(b) of sec 13 but it enjoins us to have regard to current economic conditions in the relevant sector of agriculture. It was not relied upon to increase or decrease the rent otherwise found to be payable. We think that was because conditions were reasonably stable in both the cereal and livestock sectors of agriculture in May 2009. The Common Agriculture Policy then in force, and therefore payment of SFP, still had four years to run; more than the minimum rent review period. It is worth saying that changed economic conditions since then might limit the applicability of this judgement to current rent negotiations. SFP is now virtually at an end and the detail of what is to succeed is not yet known. There is therefore much greater unpredictability in both sectors now than there was then.

[187] For the foregoing reasons nothing about economic conditions for cereal and livestock farming as at Whitsunday 2009 affects the rent we have arrived at. There was no significant time lag between the dates upon which the comparable rents were fixed and the date from which the rent for Roxburgh Mains was to be determined. There was also no relevant change in economic conditions in the industry as between Whitsunday 2009 and Martinmas 2009, when the rent for Palace was set.

[188] Although some evidence was led of improvements Mr Elliot had made to drainage at Roxburgh Mains no submission was made by either party that any of the disregards for improvements referred to in subsec (5) of sec 13 came into play and subsecs (6) and (7) are likewise not relevant.

VIII THE RESULT

[189] Given the close proximity of rents for the other comparables, once adjusted for SFP, there is no basis for modifying the result produced by the open market evidence relating to Palace Farm. That result is a rent of £48,982.

Is it realistic?

[190] The rent we have fixed represents a 78.1% increase on the passing rent. At the risk of considerable understatement, that is a dramatic rise, even allowing for the fact that the passing rent had been agreed some ten years before. It invites the question whether it is realistic.

[191] It might be thought that one way of testing this is to consider the evidence we have heard as to budgets. None of the budgets produced by Mr Oates and Mr Nisbet for Roxburgh Mains (productions 121, 158 and 241) would sustain this level of rent. Mr Sutherland made a number of detailed criticisms of Mr Oates’ budgets but the differences which can arise between hypothetical budgets and what happens in reality is best illustrated with reference to his budget for Palace Farm, production 242. It assumes that the bidder has SFP entitlements with an annual value of £39,000. Without that in the budget the surplus before rent would reduce from £66,165 to £27,165 and the hypothetical tenant would not be able to afford the level of rent actually being paid by Mr Gamble, who has no SFP entitlements. Given that sort of divergence we have felt unable to place any reliance whatsoever on budgets, even as a cross-check on how realistic our rent is.

[192] We prefer the evidence we have of what people are able and willing to pay in the real world. Checked against the rates per acre offered for Palace Farm a rate of £77.19 would be in the lower half of that range (it would have been 16th out of 27). We are persuaded on the open-market evidence in relation to Palace and the evidence of the comparables, suitably adjusted, that a hypothetical tenant would have been willing to pay that rent had Roxburgh Mains been available for let on a 1991 Act tenancy in the open market as at Whitsunday 2009. In other words we are satisfied that the rent determined is realistic.

Expenses

[193] We have allowed 21 days for motions and submissions on expenses.

Postscript

[194] The Court shares the anxiety of the industry for quicker, simpler and cheaper resolution of rent cases in the future. However, this was only the second rent case to be decided by this court since (a) the changes to sec 13 of the 1991 Act introduced by sec 63 of the 2003 Act and (b) the clarification of the law, pursuant to these changes, by the Court of Session in Morrison-Low. It was a high-value case compared to Ross v Campbell and it was therefore understandable that parties would wish to leave no stone unturned in the presentation of their cases. Thus we heard a good deal of well presented, useful evidence of both open market value and sitting-tenant 1991 Act negotiated rents across a range of five comparables.

[195] Despite the availability of that evidence, however, and notwithstanding what was said by the Lord Justice-Clerk in Morrison-Low (at para [65]) about the budgetary approach being a “method of last resort”, a great deal of evidence to do with hypothetical budgets was also led. It added significantly to the length and cost of the case without proportionate benefit. If greater speed, simplicity and economy are going to be achieved in the future – and we believe they can be – close attention will have to be paid to the guidance which now exists as to what evidence is relevant and what is not. It is also for consideration whether matters have to be explored in as much detail as they were in this case. To use what is perhaps an improbable image, a lighter touch with a broader brush might serve equally well.

APPENDIX SHOWING TABLES OF ADJUSTMENTS FOR COMPARABLES

Caverton Mill
Landlords Tenant Court
Pre-adjustment rent £30,734.08 £31,488.14 £31,000.00
Adjustments
Buildings £3,935.45 Nil £3,935.45
Improvement to farmhouse £100.00 Nil Nil[1]
Potatoes (reduced cropping area) Nil (£4,863.62) Nil
Repairing obligations £2,760.00 £2,760.00 £2,760.00
Stone content Nil (£785.06) Nil
Stone clearing Nil Nil (£1,700.00)
Water supply (farm) £1,516.00 Nil Nil
Yield Nil (£4,673.00) (£2,266.00)[2]
Adjusted rent £39,045.53 £23,926.46 £33,729.45
Rent/acre £61.53 £37.70 £53.15
Over Roxburgh
Landlords Tenant Court
Pre-adjustment rent £30,373.00 £30,600.69 £30,500.00
Adjustments
Buildings £9,404.40 Nil £9,404.40
Improvement to farmhouse £100.00 Nil Nil
Repairing obligations £1,760.00 £1,760.00 £1,760.00
Stone content Nil (£392.53) Nil
Stone removal Nil Nil (£850.00)[3]
Water supply (farm) £1,656.00 Nil Nil
Water supply (cotts) £636.00 Nil Nil
Yield Nil (£2,336.50) Nil
Adjusted rent £43,929.40 £29,631.66 £40,814.40
Rent/acre £69.23 £46.70 £64.32

Roxburgh Newton
Landlords Tenant Court
Pre-adjustment rent £31,674.00 £31,888.48 £31,750.00
Adjustments
Buildings £5,969.13 Nil £5,969.13
Improvement to farmhouse £100.00 Nil Nil
Repairing obligations (£1,500.00) (£1,500.00) (£1,500.00)
Stone clearance Nil Nil (£850.00)
Stone content Nil (£392.53) Nil
Water supply (farm) £2,867.00 Nil Nil
Water supply (cotts) £636.00 Nil Nil
Yield Nil Nil Nil
Adjusted rent £39,746.13 £29,995.95 £35,369.13
Rent/acre £62.63 £47.27 £55.74

Smailholm Mains
Landlords Tenant Court
Pre-adjustment rent £29,906.75 £25,258.14 £27,600.00
Adjustments
Altitude £1,495.00 £1,263.00 £1,380.00
Buildings £3,249.00 Nil £3,249.00
Improvement to farmhouse £100.00 Nil Nil
Potatoes (reduced cropping area) Nil (£2,184.17) Nil
Repairing obligations £260.00 £260.00 £260.00
Stone clearance Nil Nil (£850.00)
Stone content Nil (£362.69) Nil
Water supply (farm) £2,867.00 Nil Nil
Water supply (cotts) £636.00 Nil Nil
Yield Subsumed in entry for altitude above Subsumed in entries for altitude, potatoes and stone content above Subsumed in entry for altitude above
Adjusted rent £38,513.75 £24,234.28 £31,639.00
Rent/acre £60.69 £38.19 £49.86
Windywalls
Landlords Tenant Court
Pre-adjustment rent £31,407.00 £33,938.37 £32,700.00
Adjustments
Buildings £7,755.47 Nil £7,755.47
Improvement to farmhouse £100.00 Nil Nil
Potatoes (reduced cropping area) Nil (£3878.61) Nil
Repairing obligations £1,760.00 £1,760.00 £1,760.00
Stone content Nil (£785.06) Nil
Stone clearance Nil Nil (£1,700.00)
Water supply (farm) £2,150.00 Nil Nil
Yield Nil (£4,673.00) (£2,266.00)[4]
Adjusted rent £43,172.47 £26,361.70 £38,249.47
Rent/acre £68.03 £41.54 £60.28

[1] This adjustment had to do with the installation of a new, or replacement, skylight in the RM farmhouse. It was mentioned only in passing in Mr Jackson’s evidence. We reject it as being inadequately explained and vouched for.

[2] We have allowed the same 5% reduction as applied to the Palace rent

[3] 50% of sum allowed for stone-clearing in the adjustment of the Palace Rent

[4] Again we have used the same 5% rate as used in the Palace and Caverton Mill comparisons. Although we have not inspected Windywalls nothing in the evidence suggested to us that it is better in terms of soil productivity in relation to Roxburgh Mains than these farms are.