R v Ministry of Agriculture, Fisheries and Food, ex parte Cox

Milk quota — Whether there was an effective transfer of a milk quota sold to the applicant — Whether the Ministry of Agriculture, Fisheries and Food had power to rescind the registration of the milk quota in the name of the applicant By the agreement dated September 10 1986 Hamps Valley Farms Ltd (‘HVF’) agreed to grant the applicant, Mrs Cox, a grazing licence in respect of 9.39 acres of their farm and to transfer a milk quota of 65,000 ltrs. The licence was a personal agreement with a right to graze beef cattle or sheep only for a period from September 1 1986 to July 31 1987 in consideration of a fee of £300. A further £1,300 was paid for the transfer of milk quota. The applicant did not exercise her grazing rights. The Milk Marketing Board registered the transfer of quota in the applicant’s name. By a letter of May 12 1988 HVF claimed that they were entitled to the milk quota because it had not been validly transferred to the applicant and they required the respondent, the Ministry of Agriculture, Fisheries and Food, to adjust the register. On July 11 1988, the ministry declined to do so. By an award of December 14 1990 an arbitrator concluded that occupation of the land was necessary to entitle the applicant to acquire the milk quota. On April 25 1991 the respondent informed the applicant that in the light of the arbitrator’s award the minister intended to rescind the wholesale quota register entry in respect of the intended transfer of 65,000 ltrs of quota from HVF to the applicant. The applicant brought proceedings by way of judicial review of the respondent’s decision to alter the register. Held: The application was granted together with an appropriate declaration that the respondent is not entitled to rescind the wholesale quota register entry in respect of the 65,000 ltrs of quota acquired by the applicant in September 1986. Commission regulation 1371/84, article 5(2), is to be read as requiring the transferee to be operating the holding before he or she is entitled to the transfer of the milk quota. The applicant did not have such occupation. It would have been open to the respondent to alter the registration of the milk quota made in October 1986. However, the respondent did not have power to vary his decision of July 11 1988 that it was not prepared then to rescind the milk quota registered in favour of the applicant. It would be inequitable in the light of the common practice that an agreement to graze with exclusive right of occupation, but without actual occupation, was accepted by the respondent in relation to the transfer of dairy quota that the applicant should now be deprived of her quota. The following cases are referred to in this report. Customs & Excise Commissioners v APS Samex [1983] 1 All ER 1042 Denton Road (No 56) Twickenham Re [1953] Ch 51; [1952] 2 TLR 676 Kuhn v Landwirtschaftskammer Wesems [1992] 2 CMLR 242 Posthumus v Oosterwoud [1992] 2 CMLR 336 Wachauf v Bunderesamt fur Ernahrung und Forstwirtschaft (Case 5/88) [1991] 1 CMLR 328; [1989] ECR 2609 This was an application by the applicant, Mrs Margaret Cox, of a decision of the respondent, the Ministry of Agriculture, Fisheries and Food, of its decision in April 1991 to revoke the applicant’s registration of milk quota, pursuant to leave granted by Hutchison J on May 23 1991. Paul Morgan QC (instructed by Burges Salmon) appeared for the applicant; Peter Roth (instructed by the solicitor to the Ministry of Agriculture, Fisheries and Food) represented the respondent. Giving judgment, POPPLEWELL J said: This is an application for judicial review pursuant to leave granted by Hutchison J on May 23 1991. The parties The applicant, Mrs Cox, is a farmer at Malpas, Cheshire. Hamps Valley Farms Ltd are the owners of a farm at Onecote, nr Leek, Staffordshire. Though they are an interested party and have been notified of these proceedings they have not taken part in them. The respondents are the Ministry of Agriculture, Fisheries and Food, who are responsible for the milk quota regime. The issues Hamps Valley Farm Ltd (‘HVF’) sold to the applicant a milk quota of 65,000 ltrs. The first issue is whether there was an effective transfer of that quota. In about October 1986 the Milk Marketing Board, acting as agent for the respondent had registered that quota in the name of Mrs Cox and sought in April/May 1991 to revoke that registration. The second issue is whether they had the power to rescind that entry. The facts These are not substantially in dispute. By an agreement made on September 10 1986 the applicant and HVF entered into a written agreement whereby HVF agreed to grant the applicant a grazing licence in respect of some 9.39 acres of their farm and to transfer a milk quota of 65,000 ltrs to the applicant so that, on the expiration of the licence to graze, the quota would remain part of the applicant’s milk quota. It was a personal agreement with the applicant. She had the right to graze with beef cattle or sheep only, for a period from September 1 1986 to July 31 1987. She was required to keep all the fences, gates, ditches and water courses in condition and to use only cattle or sheep for the purpose of grazing the land. The applicant was to pay £300 in respect of the grazing rights and a further £1,300 in respect of the transfer of the milk quota. There were provisions as to compensation in the event of a number of eventualities. There was an arbitration clause in relation to disputes and the parties acknowledged that they had each been advised to seek separate independent legal advice before entering into the agreement. Having entered into that agreement the applicant did not exercise her right and the land was vacant from the commencement of the agreement until January 1987 when HVF entered into physical occupation of the land. In about October 1986 the Milk Marketing Board, pursuant to the Dairy Produce Quotas Regulations 1986, registered the transfer of the milk quota to the applicant from HVF. The applicant believed that the temporary transfer of part of a holding was sufficient to enable the transfer of the milk quota from HVF to her and that it was not necessary for her to enter into physical occupation of the land. On July 11 1988 the respondents wrote to HVF in reply to their letter of May 12 1988 (a copy of which has not been found). However, it is clear from the letter of July 11 that HVF were claiming that they were entitled to the milk quota because it had not been validly transferred to Mrs Cox and they required the ministry to adjust the register. The letter of July 11 1988 reads: 18 Your letter of 12th May addressed to the MMB about the validity of a number of quota transfers has been passed to me for reply. Please accept my apologies for the delay in replying to you. I have considered the case carefully in the light of the allegations made in your letter but I am of the view that it would not be correct for the Ministry to adjust the quota register as you have requested. In reaching this conclusion, I would emphasise the following points. (a)  The operative dates of the quota transfers to which you refer were 24 months and 22 months ago but you did not question their validity near that time. Neither did you submit quota transfer forms claiming quota when the grazing licences had expired. The reference to 24 months and 22 months indicates that there was an agreement with some other person of a similar nature with which this case is not concerned. The letter went on: (b)  The Dairy Produce Quotas Regulations 1986 apply to the transfers in this case. A mechanism for dealing with disputes concerning transfers of milk quota, is laid down in Schedule 4 Part I of the Regulations. Under these procedures, if agreement cannot be reached between the transferor and the transferee(s) then the matter must be decided by arbitration. If you had informed the Ministry that the land transferred did not, in fact, take place, then the provisions of the Regulations would have helped you resolve any dispute over the quota, with the transferees concerned. The matter did come before an arbitrator and on December 14 1990 he made his award. He came to the conclusion that occupation of the land was necessary to entitle the applicant to acquire the milk quota, he heard arguments about the compensation and made an order as to costs. The decision of the arbitrator as to matters of law are not binding on me. It is not suggested that they should be. Nor is it suggested that they have any legal effect in relation to the register. On April 25 1991 the ministry wrote to the applicant as follows: I write further to your letters of 4th and 20th February to give notice of the Minister’s intention to rescind the wholesale quota register entry in respect of the intended transfer in September 1986 of 65,000 litres of quota from Hamps Valley Farms to your client Mrs M E Cox As requested in your letter of 4th February I confirm that no change in the registration of the Milk Quota will be made within 21 days of the date of this letter. In reaching a decision on this case the Minister has had regard to the arbitrator’s award dated 14th November 1990, and to the representations made in your letters (particularly those of 20th December and 4th February) together with the papers which you have provided. In view of the potentially serious effects of this decision for your client, my clients have reviewed this case as a whole with the benefit of further legal advice and still remain of the view that physical occupation is required in order to effect a transfer of quota. In view of the clear evidence that there was no physical occupation in this case, the Minister cannot accept that a valid transfer of quota has taken place, though in view of your client circumstances it is not without regret that this decision has been reached. The respondents undertook not to alter the register pending the hearing of these proceedings. The respondents’ position is that they have a duty to keep a proper register and if the agreement in September 1986 did not have the effect of transferring the milk quota to Mrs Cox then the register must be put right. If they had declined in 1991, as they did in July 1988, to adjust the register at the instance of HVF a challenge to that decision by HVF would almost certainly fail whatever the legal position for the reasons set out in that letter, namely delay. However, the effect of the respondents’ proposal now to adjust the register will be to transfer the quota back to HVF from Mrs Cox arising from the agreement over six years ago. First issue Where there is a temporary transfer of part of a holding is it necessary that there should be physical occupation by the transferee to enable her to receive the benefit from the transferor of a milk quota? This depends on the interpretation of European directives and domestic regulations. The quota system was introduced by regulation 856/84. It was done by introducing a levy payable by producers or purchasers of cows’ milk and its object was to curb the increase in milk production. Member states were to introduce a levy system in accordance with one of two formulas. The formula adopted by the UK was formula B. A levy was to be paid on milk produced over a certain quantity. Each country was given a guaranteed total quantity and in the UK the Milk Marketing Board allocated to producers a fixed quota. Above that quota a levy which is 100% of the price of milk was to be paid. A quota therefore is treated as an amount to represent the exemption from levy and the quota can move from one producer to another. It is not in dispute that you can have a permanent transfer of a quota on the back of a temporary transfer of land, but there must be a relevant land transaction. The issue in this case is whether there has been. There is no dispute that there is a substantial market in the transfer of quotas. By article 5c(6) of Council Regulation 804/68: The Council, acting on a proposal from the Commission in accordance with the voting procedure laid down in Article 43(2) of the Treaty, shall lay down the general rules for the application of this Article, and in particular those relating to the determination of the reference quantities and the amount of the levies referred to . . . 7. Detailed rules for the application of this Article shall be adopted in accordance with the procedure laid down in Article 30. Thus it is said on behalf of the applicant that the rights are laid down by Council Regulations and the procedure by Commission Regulations. The first regulation to consider is article 7 of Council Regulation 857/84. It reads: Where an undertaking is sold, leased or transferred by inheritance, all or part of the corresponding reference quantity shall be transferred to the purchaser, tenant or heir according to procedures to be determined. By article 12 producer is defined as: (c)    producer: a natural or legal person or group of natural or legal persons farming a holding located within the geographical territory of the Community:  — selling milk or other milk products directly to the consumer, and/or — supplying the purchaser; A holding is defined: (d). . . all the production units operated by the producer and located within the geographical territory of the Community. It has been accepted that a holding may include a mixed farm. Article 7 was amended by Council Regulation 590/85. The reason is set out in the preamble which reads: Whereas the application of Article 7 of Regulation (EEC) No 857/84, concerning the transfer of reference quantities in the event of the sale, leasing or inheritance of a holding, may in certain cases result in difficult situations at an economic and social level; whereas it is therefore appropriate, in order to enable a lessee whose lease on a holding is due to expire to continue milk production elsewhere, that Member States be authorized to place at the disposal of such lessee all or part of the reference quantity corresponding to the holding which he is leaving; whereas, with the same purpose in mind, comparable provisions should be introduced for the benefit of the departing producer where land is transferred to public authorities or for purposes of public use. The new article 7 reads as follows: 1. Where a holding is sold, leased or transferred by inheritance, all or part of the corresponding reference quantity shall be transferred to the purchaser, tenant or heir according to procedures to be determined. . . . 4. In the case of rural leases due to expire, where the lessee is not entitled to an extension of the lease on similar terms, Member States may provide that all or part of the reference quantity corresponding to the holding which forms the subject of the lease shall be put at the disposal of the departing lessee if he intends to continue milk production. It is submitted on the applicant’s behalf that those regulations make no reference at all to a lessee going into possession and they are to be contrasted with the provisions in new article 7 relating to a departing lessee if he ‘intends to continue milk production’. Thus it is said the general effect of the Council Regulations is to transfer the quota whenever there is a sale, a lease or a will. The relevant Commission Regulations are, first, no 1371/84. The preamble reads: Having regard to Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 . . . and in particular . . . Article 7(1). Article 5 reads: For the purposes of applying Article 7(1) of Regulation (EEC) No 857/84 and without prejudice to Article 7(3) of the same Regulation, the following rules shall apply to the transfer of reference quantities granted to producers and purchasers in application of formulas A and B and of reference quantities granted to producers selling for direct consumption: 1. Where an entire holding is sold, leased or transferred by inheritance, the corresponding reference quantity shall be transferred in full to the producer who takes over the holding [emphasis supplied]. 2. Where one or several parts of a holding is sold, leased or transferred by inheritance, the corresponding reference quantity shall be distributed among19 the producers operating the holding [emphasis supplied] in proportion to the areas used for milk production . . . 3. The provisions of subparagraphs 1 and 2 above shall also be applicable in other cases of transfer which, under the various national rules, have comparable legal effects as far as producers are concerned. It is submitted on behalf of the applicant that the phrase ‘who takes over the holding’ in para 1 and ‘operating the holding’ in para 2 are descriptive of the producer and not a necessary element in the transfer of a quota. The effect of para 3 is not in dispute, it is that the phrase ‘comparable legal effect’ is intended to treat an agreement of the sort under review as if it had the same legal effect as a lease thus avoiding the difficulties inherent in different concepts of property law in different countries. Article 5 has been amended by the Commission Regulation 1043/85. The preamble to this amendment reads as follows: Whereas pursuant to the second subparagraph of paragraph 1 and paragraph 4 of Article 7 of Regulation (EEC) No 857/84 Member States may, . . . where a non-renewable lease expires and cannot be extended on similar terms, provide all or part of the reference quantity corresponding to the holding or to the part of the holding concerned is to be put at the disposal of the departing producer; whereas that right constitutes a derogation from the principle laid down in the first subparagraph of Article 7(1) whereby a reference quantity may not be transferred without the land; whereas the said derogation was introduced in order to overcome certain economic and social problems and allow producers to continue milk production; whereas the extent of that derogation should therefore be specified. The following is then added to Article 5: In the event of the application of . . . Article 7(4) of the said Regulation, concerning rural leases which are due to expire and which cannot be extended on similar terms, all or part of the reference quantity corresponding to the holding or to the part of the holding which is the subject of the transfer or of the said lease shall be put at the disposal of the producer concerned if he intends to continue milk production, provided that the sum of the reference quantity thus made available to him and the quantity corresponding to the holding which he takes over on which he continues milk production does not exceed the reference quantity which was available to him before the land was transferred or before the lease expired. It is submitted on behalf of the respondent that the preamble makes clear that a quota may not be transferred without the land. But what is meant by the land transaction?  Is it that the quota is transferred when the relevant legal rights are transferred or created or is the quota only transferred when the legal rights are exercised? No explanation has been given for the different wording in paras 1 and 2 of article 5. Para 3 of article 5 says nothing about the exercise of rights. The relation between Council Regulations and Commission Regulations is governed, first, by article 189 of the Treaty of Rome: A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. It was also referred to by the Advocate-General Monsieur Jean Mischo in Kuhn v Landwirtschaftskammer Wesems [1992] 2 CMLR 242 at p256 where he said: Having regard to the Court’s interpretation, in paragraph 13 of Wachauf, of Article 7 of Regulation 857/84, which takes precedence over the provisions of Commission Regulations 1371/84 and 1546/88, there can be no objection on the ground that the last paragraph of Article 5 of Regulation 1371/84 or Article 7(2) of Regulation 1546/88 provides that . . . The court did not have to consider whether that was a correct interpretation of the law. However, they ruled at p262: It is contrary to Council Regulations 857/84 . . . adopting general rules for the application of the levy referred to Article 5c of Regulation 804/68 . . . as supplemented by Commission Regulation 1371/84 laying down detailed rules for the application of the additional levy. [Emphasis supplied] In Wachauf v Bunderesamt fur Ernahrung und Forstwirthschaft (Case 5/88) [1991] 1 CMLR 328, the Advocate-General described the Council Regulations as being general rules for the application of the levy system and the Commission Regulations as setting out detailed rules. Mr Wachau was a tenant of a farm under a tenancy agreement originally made in 1959 between his parents and the owner of the farm, the princess. His tenancy agreement expired on January 31 1983 and he vacated the farm early in 1985. He sought compensation under Council Regulations and it was decided that by article 7 of regulation 857/84 the community legislature intended that at the end of an agricultural tenancy the milk quota pertinent to the lease land should in principle return to the lessor who retakes possession of the holding. It was said that the legal effect of the surrender of a lease is essentially the same as that of its grant, namely the transfer of the leased property from one party to the other. He observed at p340 that it was a principle that the quota follows the land on transfer and that article 54 of regulation 1371/84 was by way of derogation from the principle, namely to permit member states to provide a narrowly defined category of cases that outgoing tenants may retain all or part of the quota if they wish to continue milk production. The court in giving judgment at p347 said: In fact, as the United Kingdom and the Commission rightly points out, Article 12(d) is intended to define the scope of the rules relating to transfers of reference quantities following a change of ownership or occupancy of the holding. [Emphasis supplied] The applicant submits that somebody may well be an owner without at the same time being an occupier and that that does not suggest physical occupation of the holding. On the same page: It is apparent from the provisions quoted, considered as a whole, that the Community legislature intended that at the end of the lease the reference quantity should in principle return to the lessor who retakes possession of the holding, subject, however, to the member-states’ power to allocate all or part of the reference quantity to the departing lessee. At p348 the judgment goes on: Article 5 of Commission Regulation 1371/84 laid down the detailed rules governing the transfer of reference quantities following a change in the ownership or occupancy of a holding. After the expiry of Mr Wachauf’s lease the land was let to six different tenants and the corresponding quota was divided between them. There is nothing in the decision to indicate that the princess ever occupied the farm, indeed the references by the court to ownership rather suggests otherwise. One of the strong arguments submitted by the minister is that there should not be a trade in milk quotas and that if there is to be a transfer of milk quotas it must be as a result of transfer of land. At first sight this has very great sense and a good deal of logic. It seems strange if milk quotas can change hands by simply signing an agreement giving somebody the right to graze when they never intend to exercise that right. It is no more than an agreement to transfer the quota. However, when the grazing agreement is analysed it does not suggest that the land is to be used in any way for milk production. Indeed the opposite is true. The right which the applicant has does not include a right to graze with a diary herd; it is a right to graze with beef cattle or sheep only. Thus in order to acquire the milk quota, even according to the ministry’s argument, all that the applicant needs to do is to graze the land with some sheep. I inquired during the course of argument of counsel whether putting one sheep on the land for a day would be sufficient. After initial acceptance of that proposition counsel was, on instruction, more circumspect and contended that the use of the land would have to be more than de minimis. Accepting that argument for the moment, nevertheless if a milk quota can be legally transferred to someone using the land for grazing sheep the argument that these regulations are designed to prevent the ready transfer of milk quotas seems to me to be much weakened. There is of course power in the Milk Marketing Board to prevent a transfer if it is to be ‘a sham’. But if grazing by sheep for a sufficiently substantial period will enable a milk quota to be transferred that agreement could scarcely be described as a sham. My attention was also drawn to the domestic regulations which have to be read subject to the European regulations. The Dairy Produce Quotas Regulations 1986 (DPWR) were made pursuant to section 2(2) of the European Communities Act 1972 to implement the relevant EEC legislation. Regulation 8 reads as follows: (1)  Where there is a change of occupation of the entirety of or a part of a holding, the transferee shall within 21 days of that change of occupation notify the Minister in writing of the date of that change of occupation and the holding or part of a holding occupation of which has changed, and shall submit to the Minister such evidence relating to that change of occupation, and within such time, as the Minister may reasonably require . . . (3)  Where there is a change of occupation of part of a holding: (a)  the apportionment of quota shall be carried out as laid down in Schedule 4, Parts I and III . . . (6)  For the purposes of this regulation a change of occupation of a holding or part of a holding shall be treated as a case to which the first sentence of Article 5(3) of the Commission Regulation applies . . . By section 2(1) Commission Regulation means the Commission Regulation 1371/84D. ‘Occupier’ includes, in relation to land in20 respect of which there is no occupier, the person entitled to grant occupation of that land to another person. That definition, indicates that ‘occupier’ means somebody in physical occupation otherwise it would be unnecessary to define ‘occupier’ additionally as somebody who is entitled to grant occupation. In view of the definition provided in the Act itself it is not, in my judgment, very fruitful to consider how ‘occupation’ has been interpreted in other statutes or situations. ‘Occupation’ includes possession as its primary element but also includes something more. I find it difficult to hold that an intention to occupy which may never be performed is equivalent to ‘occupation’. In the instant case it required the physical use of the land to some degree. In ordinary English parlance occupation and a right to occupy are two totally different concepts. Mr Paul Morgan QC, for the applicant, has mounted a formidable argument on the construction of the Council and Commission Regulations to which I hope I have done full justice. Like all matters of construction there is a limited scope for argument. I have come to the conclusion, though not without some hesitation, that the Commission Regulation 1371/84 article 5(2) is to be read as requiring the transferee to be operating the holding before he or she is entitled to the transfer of the milk quota. I find nothing inconsistent between the Commission Regulations and the Council Regulations. They are to be read together. The Commission Regulations are laying down detailed rules to supplement the general rules provided by the Council Regulations. Looked at in that light it does not seem to me there is indeed any conflict. Both parties urged upon me that I should adopt a purposive approach to the interpretation of the regulations. My attention was drawn to the observations of the Advocate-General in Posthumus v Oosterwoud [1992] 2 CMLR 336 at p346 where he said: Accordingly, while it may well be natural for the parties in the first instance to seek to reach agreement on the amount of quota to be transferred, any such agreement must be based on the criterion laid down by the Community legislation or on such other criteria as have been laid down by member-States. Moreover, member-States must in my view, take appropriate measures to ensure that such agreements are consistent with those criteria. If member-States do not take such measures, then it is impossible to see how the requirements of the Community legislation can be satisfied. Such measures might also include the scrutiny of the terms of compensation agreed, in order to ensure that such agreements do not amount to a disguised form of trading in quotas. It seems to me that, whether the purposive approach is adopted or the more traditional approach of the English courts, nevertheless the same result is reached. Finally, on this matter I deal with one further argument. It was submitted that if I were in doubt I should submit the matter to the European court under article 177 of the Treaty of Rome, more particularly if there were or appeared to be regulations in contradiction. To this end my attention was drawn to the well-known decision of Customs & Excise Commissioners v Samex [1983] 1 All ER 1042 where Bingham J, as he then was, at p 1054 gave guidance as to the proper approach which courts of first instance should adopt in relation to community law. I have considered that decision and the arguments. In the light of the conclusion to which I have come, namely that the Community Regulations are sufficiently clear, I do not propose to seek the assistance of the European Court. In any event, if a different view is taken by another court there is no bar to the matter being sent to the European Court subsequently. That is not however an end of the matter. The second question which arises is whether the minister either had the power to alter the register or should be allowed to alter the register. This question is entirely governed by the Dairy Produce Quotas Regulations 1986. By regulation 8(1), to which reference has already been made, the transferee has to notify the minister in writing of the date of the change of the occupation and the holding to which the occupation relates and: . . . shall submit to the Minister such evidence relating to that change of occupation, and within such time, as the Minister may reasonably require. Under regulation 8(7) the minister may provide such forms as he reasonably considers to be necessary for the purposes of this regulation. Under regulation 30(2): For each region the Minister shall — (a)   prepare a wholesale register entry in respect of each producer in that region. . . (b)   maintain: — (i)    wholesale . . . register for each region. And by regulation 30(5): The Minister shall amend the registers which he is required by this regulation to maintain to record any allocations or adjustments made under or by virtue of these regulations, and shall inform any person to whom an amendment relates and any purchaser affected by an amendment of that amendment. The penalties are contained in regulation 36: Subject to paragraph (2), any person who: (a)    fails without reasonable excuse to comply with a requirement imposed on him by or under these regulations or the Community legislation, or (b)    in connection with these regulations or the Community legislation, makes a statement or uses a document which he knows to be false in a material particular or recklessly makes a statement or uses a document which is false in a material particular — shall be guilty of an offence and liable . . . Para (3): The Minister may, following any conviction under paragraph 1(b) against which there is no successful appeal, by notice served (within the period of 12 months . . .) . . . reduce his quota to such an extent as may reasonably be regarded by the Minister as being attributable to the falsehood on which the conviction was founded. By Schedule 4, para 1: Subject to paragraphs 6 and 8 where there is a change of occupation of part of a holding the apportionment of quota relating to that holding shall be carried out — (a)    where within 21 days of the change of occupation the transferee submits to the minister — . . . (ii)  a statement, signed by the transferor and the transferee, that they have agreed that the quota shall be apportioned according to areas used for milk production as specified in the statement. Para 8 reads: Where the Minister reasonably considers that the areas used for milk production on a holding are not as specified in a statement made for the purpose of paragraphs 1(a)(ii) . . . he shall give notice of this fact in writing to the person who made the statement and the apportionment or prospective apportionment of that quota shall then be made by arbitration. Both the applicant and HVF made applications on Form T2. The applicant’s document is dated November 5 1986 and contained the following declaration: 1. I/We confirm that I/we have/will occupied/occupy all/part of the holding stated in Part 1 of this form with effect from the date shown in Part 1. 2. I/We request that all/part of the quota registered in the name of the producer referred to in Part 1 of this form be transferred to me/us at the above address(es). . . 4. I/We understand that I/we are liable for supplementary levy which may become payable after I/we have taken possession of all/part of the holding stated in Part 1 of the Form. There is an explanatory note which indicates that the Milk Marketing Board will be responsible for processing transfers. It is suggested on behalf of the minister that the Milk Marketing Board was just going through a rubber-stamping exercise and because of the volume of work a decision to register was not a matter which should be treated as ‘decision’. I do not take such a view of the regulations. Regulation 8 indicates that the minister is to look at the matter in the light of the evidence submitted to him and may require further evidence before the registration. It is submitted on behalf of the minister that where the parties notify the Secretary of State that there is a change of occupation an entry to that effect on the register is not a determinational decision that a change of occupation has been properly notified or indeed taken place. Further that as the minister has a duty under regulation 30 to maintain the register it is by necessary implication a continuing duty to maintain an accurate register. Alternatively, as he was informed by the parties that there was change of occupation when he discovers that information is incorrect he is entitled to revoke a registration made on that basis. The applicant makes these submissions. First, there is no power in the minister under the regulations to revoke the registration and in the absence of express statutory power it cannot be altered. Reliance was placed on the decision of Re 56 Denton Road Twickenham [1953] 1 Ch 51 at p56 where Vaisey J said: . . . where Parliament confers upon a body such as the War Damage Commission the duty of deciding or determining any question, the deciding or determining of which affects the rights of the subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot in the absence of express statutory power or the consent of the person or persons affected be altered or withdrawn by that body. 21 I accept that proposition as well founded. How does it apply to the decision not to alter the register in 1988, but to alter it in 1991? However, while it is true that it was an administrative decision by a minister, it is also clear the decision which has to be made at an early stage in the transaction may not reflect actuality and is necessarily provisional. Thus a transferee fills in the T2 saying: I will occupy. At that stage that may be the genuine intention. Based on that the Milk Marketing Board registers the transferee. Suppose the transferee falls ill and never does occupy the holding. It cannot be that the minister is debarred thereafter from adjusting the register to take account of the fact that the holding has never been occupied. Accordingly, I have no difficulty in deciding that it was open to the minister to alter the registration of October 1986. However, the matter does not rest there. The letter from the ministry purporting to rescind the register entry is dated April 25 1991. I have set out the contents earlier in this judgment. By their letter of July 11 1988, to which I have already referred, the ministry was making a decision that in the light of the information that there had been no occupation by the applicant they were nevertheless not going to alter the register because of the delay of HVF. That decision seems to me to come fairly and squarely within the principle laid down by Vaisey J and in other cases to which I was referred in Administrative Law by Professor Sir William Wade at pp253 to 257. Although the letter of July 11 1988 from the minister suggests that the HVF should seek arbitration initially, nevertheless it has not been argued before me that there has been some new fact, which emerged between July 11 1988 and April 1991, which entitled the minister to go back on a decision which had been made. It was always open to HVF at the end of the grazing licence to seek alteration of the register and thereafter if they were dissatisfied by the decision of July 11 1988 to challenge that decision. I am wholly unpersuaded either that the minister had the power to vary his decision of July 11 1988 or if he had the power it was a proper exercise of that power. There is yet an additional matter which confirms me in this view. In the papers at p185, though not argued before me, are guidelines issued by the ministry which preceded the coming into force of the Dairy Produce Quotas Amendment Regulations 1988 under which the minimum interest in land was now to be a tenancy for at least 10 months. Para 9 at p190 reads: The Dairy Produce Quotas Regulations say that the transfer of quota occurs when there is a change of occupation. The Community Regulations themselves are not completely clear on the extent to which a transferee needs to exercise his rights over the land transferred to him, but the Government takes the view that the transferee should have at least an exclusive right of occupation. Where no physical change of occupation takes place, it is likely that a full explanation of the circumstances will need to be provided to the Ministry. The more clearly it can be shown that a transferee has exercised his rights over the land acquired, the easier it is to justify the transfer of quota. This has always been the case, and is not changed by the amendments to the Regulations. It is clear that what happened in this case, namely an agreement to graze with exclusive right of occupation, but without actual occupation, was common practice among those with milk quotas thereby transferring the quotas without apparent demur by the ministry. Both the applicant and HVF proceeded on the basis that that was sufficient as a matter of law. In the light of those guidelines I am not surprised. It would be inequitable in any event in the light of that that this applicant should now be deprived of her quota with the consequence of having to find a suitable sum to cover the additional levy for which she has now become liable over the years. In the light of this judgment I shall invite the parties to make submissions on the form of the order I shall make.