Agricultural Landlord and Tenant Code of Practice – are there lessons to be learned from over the hedge?

The Agricultural Landlord and Tenant Code of Practice for England (the Code) was published by Defra on 8 April 2024. The Code is a response to recommendations made in the Rock Review, following concerns within the sector around deteriorating landlord and tenant relationships. It seeks to promote positive relationships between landlord and tenant (and their advisors) by way of a set of standards of expected behaviour which are designed to encourage clarity, communication and collaboration.

Although the Code is a good starting point, some may argue that if there is already such a lack of communication and collaboration within the sector, the Code will achieve little in practice, particularly as it is not enforceable by law.

One proposal to incentivise parties to adhere to the Code has been put forward in the form of a tenant farming commissioner. In November last year, Defra made a call for evidence to explore that proposal. The window for responses closed in February this year and a further update from Defra is awaited.

Our Scottish neighbours over the hedge have already adopted this approach. The office of the Scottish Tenant Farming Commissioner (STFC) was created in 2017, following similar concerns within the Scottish tenanted sector. The STFC’s approach and achievements to date are thought to have brought huge benefits to the sector. Indeed, the Scottish Government published an encouraging review of the STFC’s functions in 2020.

Impartiality is at the heart of the STFC role, which aims to promote good relations based on mutual respect, shared values, fairness and reasonableness. Statutory functions of the STFC include:

• preparing and promoting codes of practice on agricultural holdings; and
• making inquiries into alleged breaches of the codes through a formal inquiry process.

Other key aspects of the role include monitoring the sector and engaging with stakeholders to identify issues and collect evidence with a view to ensuring that future tenancy legislation is fit for purpose as well as providing guidance on topical issues affecting the sector. In an attempt to further promote good relations between landlord and tenant, the Scottish Land Commission has launched a scheme to improve access to mediation as an alternative to litigation which so often results in the irreparable break down of relationships. Alongside this, the STFC has produced specific guidance on alternative dispute resolution to help parties understand their options.  

Given the positive reception of the STFC, it certainly seems that there is a case to be made for a similar role in England. It will be interesting to see whether England follows in Scotland’s footsteps by appointing a tenant farming commissioner, and if so, what the role will look like, particularly in terms of enforcing the Code.