A note about the Tenant Farming Commissioner's new guidance on statutory compliance in relation to agricultural holdings; and also the new Act on protection of livestock from dogs

Below I discuss the latest guidance provided by the Tenant Farming Commissioner (TFC) in relation to agricultural holdings, and the recently passed Dogs (Protection of Livestock) (Amendment) (Scotland) Act 2021.

TFC’s guidance

As TFC, Bob McIntosh has released a number of guidance notes to assist tenant farmers, landlords and their agents, with the overarching aim of preventing disputes escalating, or indeed arising in the first place. His latest guidance covers general statutory compliance in relation to agricultural holdings, and specifically, the responsibilities of both landlords and tenants particularly in relation to inspections and certifications required for buildings.

Compliance table and checklist

Following a useful summary of the various compliance regulations requiring to be considered for agricultural holdings, the guidance note sets out a “Compliance Table” and “Checklist”.

The table lists the numerous tests and thresholds required to be met by landlords and tenants in order for agricultural properties to be deemed “fully compliant”. These include electrical inspections, smoke detectors, fire risk assessments and asbestos inspections, to name a few. Next to each of these obligations are the steps to be followed by parties both prior to the start of a new lease and throughout its duration, with links to further information.

The checklist is also in the format of a table, but rather than providing information on tasks required, it sets out the statutory timescales and limits for the fulfilment of these requirements in relation to both dwellings and agricultural buildings. The final column provides useful information about what action, if any, is required to be taken in relation to each compliance obligation and by which party.

Tolerable and repairing standard

First, it is worth noting that these tables will be of substantial assistance to landlords, tenants and agents alike. Not only do they set out the majority of the necessary compliance considerations for both parties in a uniform and easy-to-read document, but they also provide an element of clarity on the requirements incumbent on each party in order to ensure that both the tolerable and repairing standards are met. 

It was recently announced that agricultural buildings would, by 2027, also be subject to the repairing standard. Although this change is some years away, it is prudent that both parties understand what their roles and responsibilities may include with regard to meeting this new standard, particularly because leases for agricultural holdings are often lengthy and many will likely be ongoing when the standard takes effect. 

The guidance is mostly silent on which party will be deemed responsible for ensuring the repairing standard is met for agricultural properties, although it has been speculated that the responsibility will fall to landlords. Unlike private residential properties, agricultural holdings often provide tenants with rights to sublet the property, and the requirement for standards to be met by landlords rather than tenants in these circumstances would be rather unjust.

For example, the TFC has suggested that the landlord should be responsible for the installation and replacement of smoke, heat and carbon monoxide detectors, and the tenant responsible for checking and maintaining these throughout the lease. If however, the tenant has sublet the property for a number of years, it would perhaps be more appropriate for the tenant to be principally responsible for installation and replacement. Perhaps further guidance on these specific scenarios will be provided in due course, but until then it would be sensible for parties to agree who is responsible for what when the higher repairing standard becomes applicable to agricultural properties, in order to avoid either party taking on unduly onerous obligations. 

Protection of livestock

The Dogs (Protection of Livestock) (Amendment) (Scotland) Act 2021 received Royal Assent on 5 May. Its purpose is to increase penalties for owners or persons in control of dogs that chase or attack sheep, or allow their dogs to be “at large” in a field or enclosure where sheep are present. Of course this excludes dogs defined as “working dogs”. The Act increases the maximum penalty from a fine of £1,000 to £5,000, or imprisonment for up to six months, and empowers courts to make orders such as preventing a convicted person from owning a dog, while also providing the police with greater powers in relation to livestock worrying offences.

The negative impacts caused by worrying livestock have gained much attention in recent years, with one research group finding: “on average, each incident results in 1.58 sheep being killed, a further 0.51 having to be destroyed, a further 1.72 being injured, 0.34 ewes aborting, 1.02 instances of mis-mothering and 28.04 sheep being stressed but physically uninjured”.

Such information, combined with the fact that at present only around one in three dog attacks are reported, has led to this necessary statutory development. It is hoped that the increased sanctions will decrease incidents of livestock worrying, a welcome relief to both farmers and their animals.

The Author

Adèle Nicol, partner, Anderson Strathern LLP

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