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The Earl of Kinnoull: I thank my noble friend for the clarity of his reply and the wisdom of his words. I am happy to withdraw the amendment.

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Amendment, by leave, withdrawn.

Clause 20 agreed to.

Clause 21 [Amount of compensation for planning permission]:

The Deputy Chairman: I must point out that Amendment No. 73 should read "leave out from the second ("the").

[Amendment No. 73 not moved.]

Clause 21 agreed to.

Lord Gallacher moved Amendment No. 74:


After Clause 21, insert the following new clause:

Compensation for damage by game or hunting

(".—(1) Where the tenant of a farm business tenancy has sustained damage to his crops—
(a) from any wild animals or birds the right to kill and take which is vested in the landlord or anyone (other than the tenant himself) claiming under the landlord, being animals or birds which the tenant does not have permission in writing to kill; or
(b) from any hunting activity where the landlord and not the tenant is able to give permission for hunting to take place across the land which is the subject of the tenancy—
he shall, if he complies with the requirements of subsection (2) below, be entitled to compensation from his landlord for the damage.
(2) The requirements of this subsection are that the tenant shall give his landlord—
(a) notice in writing within one month after the tenant became, or ought reasonably to have become, aware of the occurrence of the damage;
(b) a reasonable opportunity to inspect the damage—
(i) in the case of damage to a growing crop, before the crop is reaped, raised or consumed, and
(ii) in the case of a damage which has already been reaped or raised, before the crop is removed from the land; and
(c) notice in writing of the claim, together with full particulars, within one month of the year in respect of which the claim is made.
(3) For the purposes of subsection (2) above—
(a) seed once sown shall be treated as a growing crop whether or not it has germinated; and
(b) "year" means any period of 12 months ending in any year with 29 september or with such other date as may be agreed between the landlord and the tenant.
(4) The amount of compensation under this section shall in default of agreement made after the damage has been suffered be determined by arbitration under this Act.").

The noble Lord said: The amendment seeks to add a new clause to the Bill. The purpose of the clause is to provide circumstances in which there can be compensation to the tenant of a farm business tenancy if he has sustained damage to his crops by game or hunting. The clause, I believe and hope, is self-explanatory, but it may be for the convenience of the Committee if I mention one or two points contained in it which I believe justify its tabling and show that the conditions suggested for compensation and arbitration are such that the clause, taken as a whole, is reasonable.

First, as I said, the purpose of the clause is to compensate where damage has been sustained,

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    "from any wild animals or birds the right to kill and take which is vested in the landlord or anyone (other than the tenant himself) claiming under the landlord, being animals or birds which the tenant does not have permission in writing to kill";

and, secondly,


    "from any hunting activity where the landlord and not the tenant is able to give permission for hunting to take place across the land which is the subject of the tenancy".

In those circumstances, subject to compliance with subsection (2) of the clause, the tenant may be entitled to compensation from his landlord for damage. Subsection (2) specifies the conditions for qualifying for a damage payment; that is:


    "notice in writing within one month after the tenant became, or ought reasonably to have become, aware of the occurrence of the damage;


    "a reasonable opportunity to inspect the damage—


    (i) in the case of damage to a growing crop, before the crop is reaped, raised or consumed, and


    (ii) in the case of a damage which has already been reaped or raised, before the crop is removed from the land; and


    (c) notice in writing of the claim, together with full particulars, within one month of the year in respect of which the claim is made".

Finally subsection (3) qualifies subsection (2) as follows:


    "seed once sown shall be treated as a growing crop whether or not it has germinated".

The definition of a year is given under the paragraph (b).

Under subsection (4) it is provided that:


    "The amount of compensation under this section shall in default of agreement made after the damage has been suffered be determined by arbitration under this Act".

We feel that the Bill omits that important aspect of relationships between a farm business tenant and his landlord, and that some attempt should be made during this stage of the Bill to discuss the matter. I hope that the new clause will enable the Committee to have that discussion. I beg to move.

5.15 p.m.

Lord Mountgarret: I hope that my noble friend will consider seriously accepting the amendment. It seems to be entirely fair. I believe that I am right in saying—no doubt I shall be corrected if I am wrong—that under the Agricultural Holdings Act 1948 tenants are entitled to compensation for game damage. It is right that there should be a similar provision in the Bill. If a tenant does not wish to make any claim for game damage, that is up to him. If the tenant is upset by the hounds and the hunt going over his land, it is a matter between the tenant and the landlord. If the landlord wants to see the tenant right on that, that is fine, otherwise the tenant may come to some arrangement with the hunt. As I say, it is only fair, and I hope that my noble friend will go some way towards accepting it, if not immediately, before the Bill leaves this place.

Earl Howe: I am grateful to the noble Lord, Lord Gallacher, and to my noble friend for their remarks. The new clause proposed by the noble Lord, Lord Gallacher, seeks to address what we all appreciate can be an unfortunate problem which a tenant of a landlord who has reserved the shooting rights to himself (or perhaps

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vested them in some third party) may from time to time suffer. In respect of game damage, the clause has been modelled closely on Section 20 of the 1986 Act, but it has been extended to deal also with any damage to crops caused by a local hunt.

The question we have to decide is whether the Bill should provide for such a situation or whether it should be for the tenancy agreement to do so. If the tenancy agreement provides for the tenant to be compensated by the landlord for game damage, Clause 28 will enable any dispute that arises to be referred to arbitration. Where the tenancy agreement provides an alternative dispute resolution procedure under Clause 29, either party may still have access to arbitration under Clause 28 if they prefer.

There is a separate problem with the amendment. Little benefit would be derived from the amendment where land under a diversified farm business tenancy was damaged by hunting activities. The clause deals only with damage to crops. It would not help resolve claims where other damage to a holding was sustained. The clause suffers from, shall we say, a lack of flexibility, and as the industry itself has already been prepared to accept that parties should make their own arrangements for dealing with these matters—an approach which I favour—I hope that the noble Lord will feel able to withdraw the amendment.

Lord Carter: The Minister referred to Clause 28. He said that under the terms of the tenancy, any dispute could be referred to arbitration. Subsection (1) refers also to "under any custom". Will he explain what that means? Will it help cover the point?

Earl Howe: I regret that while the noble Lord was asking his question my attention was occupied elsewhere. I should be grateful if he would ask me again.

Lord Carter: The phrase appears at page 13, line 9. The Minister referred to "the terms of the tenancy" but Clause 28(1) refers to:


    "the terms of the tenancy or under any custom".

I presume that means the custom of the country. Would that provision apply to the situation that we have been discussing?

Earl Howe: I am grateful to the noble Lord for pointing out that part of the Bill. It had escaped my notice. I shall take advice and write to him about it.

Lord Gallacher: I am grateful to the noble Viscount, Lord Mountgarret, for his support. The Minister will not complain if I say that his attitude to the proposed new clause is somewhat lukewarm. I understand the reasons why he feels that way about the Bill.

He sought to assure me that what I am seeking in the new clause can be provided for in the tenancy agreement—and, indeed, it can. However, the tenancy agreement may involve hard bargaining between the parties. There may be rivals who wish to be parties to the agreement; in other words, the landlord has a choice. In those circumstances, the tenant whose agreement should include terms relating to damage by game or hunting could find himself the runner-up in the stakes

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of such a contested agreement. However, if provision appears on the face of the Bill, which is what we wish to see, the tenant's position is considerably strengthened in asking for that to be included in the agreement or in relying on the clause for the protection to which he feels entitled.

The Minister said that the drafting of the amendment was deficient in that it lacked flexibility as regards the buildings. If he had been more than lukewarm about the matter I should have been happy to take it away and include a provision about buildings. However, he has agreed to write to my noble friend regarding the reference made to another part of the Bill, which may or may not have a bearing on this aspect. Therefore, I shall seek the leave of the Committee to withdraw the amendment and indicate to the Minister that at a later stage we may feel disposed to return with a reference to buildings and a firmer intention to warm him up a little as regards his attitude to this clause. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 22 to 27 agreed to.

Clause 28 [Resolution of disputes]:


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