I would welcome your thoughts on the following problem.
The IR have challenged the C.A. claims on a Nursery (flowers, plants etc.) ~ in particular claims for ABA on polytunnels (PT's). Their grounds were that the PT's are used to house pots & containers holding the growing flowers & plants (as opposed to these being grown directly in the soil) & this is not, therefore, husbandry ~ the interpretation of which is given ('in Case law') as 'land or property is said to be occupied for husbandry if the business ----- depends to a material extent on the commercial use of the fruits of the land so occupied' & therefore in this case there is no 'working of the land' that could constitute husbandry ( the pots & containers sit on the ground which is covered by a protective material to keep
I feel that this is a very narrow interpretation, being based upon old Sch. B cases from the 1920,s (although appreciating that the actual definition of the word was the basis of the cases).
It is unlikely that the client can fund a case before the Commissioners on this. I have found a reference in Tolley's Yellow to a reply from IR saying that 'On the meaning of husbandry ------- where bulbs flowers plants & shrubs etc are grown on the land this would normally be regarded as for the purposes of husbandry'. If we take this strictly do we have a position here where the plants are grown on the land as opposed to in the land and our claim is successful? As an alternative to the ABA claim I feel there may well be a case for arguing that the PT's are in fact plant & machinery on the grounds that by definition they are not buildings nor structures (S22(3)(a) referring to 'fixed structures of any kind' and, being capable of being moved should qualify as P & M. The PT's are not the Planteria type described in the Seymour case which were 'fixed & permanent'
I would welcome members' views on both these points before I approach the IR
Stephen Greig
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Polytunnel
The definition of husbandry at Section 362 CAA 2001 seems odd in that it does not refer to arable farming.
I think a better bet would be to argue that the polytunnels are plant under List C Item 21 Section 23 CAA 2001. There is some helpful information about polytunnels at
http://www.planningportal.gov.uk/uploads/1160262_tuesley_farm.pdf
Another argument is that they do not last for 2 years and are not therefore plant at all. See Rose & Co (Wallpapers & Paints) Ltd v Campbell, Ch D 1967, 44 TC 500; [1968] 1 WLR 346; [1968] 1 All ER 405.