(1) Stephen Charles Smyth-Tyrrell v William Robert Bowden
| Jurisdiction | England & Wales |
| Judge | HHJ,Paul Matthews |
| Judgment Date | 02 February 2018 |
| Neutral Citation | [2018] EWHC 106 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: B30BS132 |
| Date | 02 February 2018 |
Neutral Citation Number: [2018] EWHC 106 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: B30BS132
Guy Adams (instructed by Clarke Willmott LLP) for the Claimants
Gordon Nurse (instructed by Neil Gilbert Solicitors) for the Defendant
Hearing dates: 31 October – 7 November 2017
Judgment Approved
Introductory
This is my judgment on a claim brought by the claimants in relation to a parcel of about 9.51 acres of land at Boswidjack Farm in Constantine, Falmouth Cornwall (“the property”). The parcel is generally known as Mellinzeath, or Mellanzeath, or sometimes Melanzeth. The claim form, issued on 26 February 2015, seeks a declaration that the property is an agricultural holding within the meaning of the Agricultural Holdings Act 1986, and/or an order for a new tenancy pursuant to section 24 of the Landlord and Tenant Act 1954 of the property, and/or a declaration that the tenancy of the property continues and/or that the claimants are entitled to such interest as the court thinks fit by way of proprietary estoppel. It was accompanied by particulars of claim also dated 26 February 2015, in which these claims were elaborated. The claim was further explained by a number of requests for further information made by the defendant. The defendant is the freehold owner of the property, it having been transferred to him by his parents, the late Mr Bernard Bowden (who died on 30 August 2012) and his wife Mrs Ada Venna Bowden, on 4 March 1999.
The defendant filed a defence and counterclaim dated 18 May 2015. This included at paragraph 36 an allegation that, if there was otherwise a right to a new tenancy under the 1954 Act, the defendant intended to occupy the relevant holding for the purposes of his own business, and therefore objected to the grant of a new tenancy. It also included a counterclaim for a declaration that the claimant's tenancy was not of an agricultural holding within the meaning of the 1986 Act, a declaration that the defendant was entitled to possession of the land concerned, subject only to the rights of a company called Bosvarren Ltd in a sublet part of the land, and also mesne profits from the expiry of a notice to quit dated 16 June 2014 to the delivery up of possession to the defendant or his agent. The claimants filed a reply and defence to counterclaim on 15 June 2015.
The relationship between the parties in respect of this land was governed initially by an agreement in writing, which is undated, but is expressed to be for the grant of a tenancy of 15 years to date from 1 January 1993. This is signed by the claimants as tenants, but not by the defendant's parents, who at that stage constituted the relevant partnership owning the land in question. The rent was stipulated to be £400 per annum, paid quarterly in advance on the usual quarter days. After the expiry of 15 years from this date, the relationship between the parties was treated as a tenancy from year to year of the property. A notice to quit dated 16 June 2014 was given on behalf of the defendant as landlord to the claimants as tenants, to deliver up possession of the property on 24 December 2014. The defendant also gave a notice that, if the tenancy was a business tenancy within the 1954 Act, the landlord intended to occupy the holding for the purposes of a business to be carried on by him therein.
The claim and counterclaim were tried by me at the Rolls Building of the Royal Courts of Justice in London between 31 October and 7 November 2017, no courtroom being then available in Bristol. This was the consequence of the continuing effects of the flood in the basement of the Bristol Civil and Family Justice Centre which had taken place in late June 2017. Mr Guy Adams appeared for the claimants, instructed by Clarke Willmott LLP. Mr Gordon Nurse, instructed by Neil Gilbert Solicitors, appeared for the defendant.
Witnesses
I heard evidence from the following witnesses: the first claimant, the second claimant, the defendant, Mrs Angela Bowden (the defendant's wife), Martyn Middlewick (claimants' expert surveyor) and Alan Alker (defendant's expert surveyor). The evidence of Mr Bryer was contained in his witness statement, but as it was not challenged he was not tendered for cross-examination.
I give here my impressions of the witnesses whom I saw. The second claimant was a calm, reserved and clear witness. She is plainly intelligent and understands money, and how to run a business. However, she professed herself ignorant of all the business matters concerning the property, and in effect referred to her husband, the first claimant, all the questions which she found difficult to answer. I think that what she said was truthful as far as it went, but she was quick to express the view that particular questions should not be asked of her, but instead of her husband.
The first claimant was a slow, grave and careful witness, who gave evidence in an authoritative fashion. He gave his evidence frankly and largely without hesitation, even when it did not suit his case. I am sure that from his own point of view he was telling the truth. However, I felt also that he had convinced himself that he was right, and was reinterpreting some events from that perspective. Accordingly there were some areas of fact where I felt that I could not accept his evidence uncritically.
The defendant was a straightforward witness, thoughtful, perhaps even taciturn. He was prepared to “go along with” many suggestions put to him by counsel. His evidence was mostly clear, but sometimes hazy about events that had happened many years ago. I am satisfied he was telling the truth so far as he was able.
The defendant's wife was a quick and forthright witness, obviously very capable both in running a home and in running a business. She was completely frank, but also opinionated. She too was sure that her side was in the right. I had no doubt that she was telling the truth. However, she was not party to all the meetings and discussions which took place over the years. I accept her evidence as truthful, so far as it went.
The two experts were quiet and professional. I heard very little from them, as counsel had only a few questions, but what I heard led me to believe that both were doing their best to assist the court and give their honest opinions. There was also the factual evidence of Mr Peter Bryer (the claimants' farm consultant) in witness statement form, but he was not tendered for cross-examination, so I had no opportunity to form a view of him. His evidence is not however central to the case.
Facts found
Based on the evidence contained in witness statements, as supplemented by oral evidence, I find the following facts.
The parties
The claimants own a property known as Bosvathick, near Falmouth in Cornwall. This property and surrounding land has been in the second claimant's family since 1760. They run a bed-and-breakfast business there. They also farm about 200 acres of land, known as Bosvarren Farm, and own further land occupied by tenant farmers. The first claimant's occupation is the operation of the farm and the management of the properties and estate at Bosvathick. The farming activities include cattle farming, various cash crops and the management of woodland. Mellinzeath is approximately 2 to 3 miles away from Bosvathick. In addition, the first claimant is a member of the Institute of Historic Building Conservation and has worked as an historic building adviser. He has a particular interest in preserving and restoring historic and listed buildings. He has published books on the subject. The second claimant is responsible for organising the bed-and-breakfast bookings at Bosvathick.
The defendant was born in 1960, into a farming family. His father was born in 1922, and by the 1990s had been in farming for nearly fifty years. He was familiar with all aspects of farming business. He was fully aware of the nature of agricultural holdings and the security of tenure that they brought. The only lettings he granted were of single crop arable land, so as not to create an agricultural tenancy. In partnership with his brother the defendant farms 750 acres of land with dairy and beef cattle, including milking cows. They also have a farm contracting business, and long term lettings in 4 houses and a bungalow. He and his wife have been involved in holiday letting since 1999. They married in 1984 and have lived at Boswidjack Farm since then.
The land
As already stated, the property the subject of the present dispute forms part of Boswidjack Farm. It was formerly a miller's cottage situated to the south west of the main farmhouse. The cottage is about 300 yards away. To get to it from Boswidjack farmhouse it is necessary to cross some land called Tucoys belonging to neighbours, the Harris brothers. In the 1990s the defendant and his father and family considered that they had a right of way, although more recent events have raised a question about that. But in practice there was and has been no real difficulty about rights of access. Before the events described in this judgment, the property was in a very poor state. The buildings were derelict, the vegetation was overgrown, it was overrun with bracken and the land was so steep in places as to be unploughable and therefore unfarmable. However, the defendant's father said that in about the 1930s someone had kept pigs at the property.
At some time during 1993 the first claimant was out walking to learn the area, and also looking for opportunities to extend his farm. He came across the property, although it was...
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