One uncertainty about the Agricultural Holdings Act 1986 is the question of whether a consensual grant of a farm tenancy before 14 November 1976 (the date of the coming into force of the Agriculture (Miscellaneous Provisions) Act 1976) will count as one of the two permitted statutory successions, in the same way as would a similarly consensual grant of a tenancy after that date.

Until now there has been no direct case law on the point, although there were some obiter comments in Saunders [1993], where it was said that ‘successions’ could be deemed to have taken place before the enactment of legislation which permits them (ie a pre-1976 consensual grant could be one of the allowed successions).

We now have a recent decision on this point. T’s father was granted a tenancy in 1973, which replaced his grandfather’s 1947 tenancy. T was granted his tenancy in 1998, with it being common ground that the 1998 tenancy counted as one of the two allowed successions. The question was whether the 1973 tenancy also counted as a succession; if it did, then T’s son would not have an opportunity to apply for succession on T’s death or retirement. The judge found in favour of T, on the basis that the 1973 tenancy did not count. He summarised the commonly held view that ‘if the statute is construed so as to apply to pre-1976 consensual grants, its operation would be capricious. Many families would have been entirely excluded from the statutory scheme because two voluntary successions had taken place years before the statutory right of succession had been conceived’. Accordingly, it now seems clear that any handover which took place before 14 November 1976 will not count as a statutory succession under AHA 1986. See note on Kemp v Fisher [2010] (unreported) noted in [2010] SJ 1 June 25.