[2024] UKUT 149 (LC)

It is well-established that where statutory wording is changed its meaning is presumed to have been changed whereas if it remains unchanged its meaning should be unchanged. Thus far we agree with the respondent. The question is whether the appellant is correct to say that the amendment to the second requirement (about use) in paragraph 5(3)(a) of Schedule 5 has necessarily had an effect upon the construction of the unamended words “occupied together with”.

The answer depends upon whether the words “on that or other land” means “on that land, or on that and other land”. In other words, is the word “or” in “that or other land” used in the inclusive sense or the exclusive sense?

Certainly the respondent is right to say that the effect of the amendment is that where Farmer A’s machine shed is surrounded by Farmer A’s land where the machinery is used, the amendment saves the exemption in a case where the combine in the shed is also used by other farmers. It still has its close connection with the land next to which it is situated, being in the same occupation at the same time, being contiguous, and having a close functional connection so that the building and the land are or are part of the same farm.

The question, which has not been answered before this appeal, is whether the amendment saves the exemption in a case where Farmer A’s machine shed is occupied by Farmer A and is adjacent to agricultural land also occupied by Farmer A, but where the machinery in the shed is used on agricultural land elsewhere (whether by Farmer A or by other farmers or both). The shed is still in the same occupation as the land next to it, at the same time, but it does not have any functional connection with it. Is it occupied together with it?

In that situation, on Mr Ormondroyd’s argument, the shed has the exemption. It is occupied together with the agricultural land next to it, and its sole use is in connection with agricultural operations, but on other agricultural land. And that situation is identical to the situation in the present appeal where the three buildings are used in connection with agricultural operations on other land, not on the arable land next to it.

For Mr Williams KC there is no exemption in that case.

We agree with Mr Ormondroyd on this point. Looking at the example of shared use in paragraph 44 above, that is the sort of situation that the amendment was designed to save, and for it to be disqualified because the shed is next to agricultural land belonging to Farmer A but not the right bit of Farmer A’s agricultural land seems arbitrary. We think that the word “or” is generally exclusive in ordinary language; and we note that where a statute contains a list of alternatives separated by the word “or” it is used in an exclusive sense – any one of the alternatives will suffice. The literal construction, taking that as exclusive, accords with the purpose of the amended provision. And in light of the ambiguity it is permissible to note the words of Mr Raynsford MP, quoted above, who appears to have taken a view consistent with what is said for the appellant.

On the basis that “or” is exclusive, and that the respondent’s construction of “or other land” is incorrect, “occupied together with” can no longer require a functional connection and cannot imply that the land and the building have to be a single agricultural unit. Occupation and use have been split up by the amendment; occupation can therefore no longer require a functional connection, let alone anything closer such as constituting or being part of a farm or unit. Nevertheless the word “together” is likely to have a meaning beyond occupation by the same person at the same time, and we take it to mean that the building and the land must be occupied as part of the same enterprise and must be geographically close if not contiguous.

Accordingly we have to distinguish Farmer v Buxted; it remains authoritative as to the meaning of “occupied together with” in paragraph 5 of Schedule 5 to the LGFA 1988 but is no longer relevant to the construction of those words in paragraph 3.

So we were wrong to say in Senova that the meaning of those words was unchanged by the 2003 amendment. That has no effect upon the result in Senova (where the point was not argued) for the reasons we gave above (paragraph 15). And what we have said here is consistent with the outcome in Wootton v Gill (VO) [2015] UKUT 548, where again the point was not argued because the building in question had a close functional connection with the agricultural land together with which it was occupied.