Kirby & Ors v Baker & Metson Ltd

For Case B(b)(ii) of the Agricultural Holdings Act 1986, an order approved by both Houses of Parliament means an order approved through the affirmative procedure. Approval is not established merely because an order laid under the negative procedure has not been annulled.

The words must be read in their statutory context. Case B(b)(ii) identifies parliamentary approval as a requirement separate from the existence of a general development order. Treating every general development order as sufficient would make that requirement redundant. Legislative history and parliamentary statements did not resolve the ambiguity.

The claimants were agricultural tenants and the defendant their landlord. The defendant served a notice to quit under Case B of Schedule 3 to the Agricultural Holdings Act 1986, relying on a proposed non-agricultural use permitted by the Town and Country Planning (General Permitted Development) (England) Order 2015.

The arbitrator decided as a preliminary issue that the 2015 Order was an order approved by both Houses of Parliament within Case B(b)(ii), although it had been made under the negative procedure. The claimants appealed under section 69 of the Arbitration Act 1996. The central issue was whether Case B(b)(ii) required the affirmative procedure or permitted either procedure.

1. The appeal was allowed. The arbitrator had erred in law in concluding that the 2015 Order satisfied Case B(b)(ii).

2. The affirmative procedure requires a draft instrument to be laid before both Houses and approved by resolution of each House. Under the negative procedure, an instrument takes effect unless annulled by resolution. The ordinary meaning of “approved” favours active approval and does not naturally include the withholding of disapproval.

3. The statutory context confirms that conclusion. Section 94 of the Agricultural Holdings Act 1986 distinguishes instruments subject to annulment from regulations requiring approval by resolution of each House. Case B(b)(ii) uses language directed to approval by both Houses and must be given independent content.

4. Case B(b) requires both permission granted by a general development order and authorisation by an order approved by both Houses. On the defendant’s construction, any general development order made under either procedure would automatically satisfy sub-paragraph (ii), making that requirement redundant. The reference to an approved order therefore denotes a separate instrument approved affirmatively by both Houses.

5. The legislative history of the Agricultural Holdings (Amendment) Act 1990 did not assist. It addressed the effect of Bell v McCubbin and introduced several new limbs, but the parliamentary statements relied on did not clearly address the procedure required by Case B(b)(ii). The Pepper v Hart conditions were therefore not satisfied.

6. The similar wording in Schedule 2 Part 18 of the 2015 Order did not determine the interpretation of the earlier Act. The appeal was allowed, with the parties invited to agree the form of order and written submissions directed if agreement proved impossible.

• High Court (Chancery Division): Permission to appeal was granted by Fancourt J on 21 February 2020. Meade J allowed the section 69 appeal from the arbitrator’s award of 6 September 2018.