Elitestone Ltd (Appellants/Plaintiffs) Morris and Another (Respondents/Defendants) Elitestone Ltd (Respondents/Plaintiffs) Davies and Others (Appellants/Defendants)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ALDOUS,LORD JUSTICE HUTCHISON,LORD JUSTICE BALCOMBE |
| Judgment Date | 28 July 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0728-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No CCRTF 95/0238/G |
| Date | 28 July 1995 |
[1995] EWCA Civ J0728-5
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
On Appeal from Order of Mr Assistant Recorder Bidder
Before: Lord Justice Balcombe Lord Justice Aldous Lord Justice Hutchison
No CCRTF 95/0238/G
CCRTF 95/0247/G
M JAMES THOM (Instructed by T G Jones & Sohos, Swansea) appeared on behalf of the Appellant.
MR DAVID NEUBERGER QC (Instructed by Smith Llewelyn Partnership, Swansea) appeared on behalf of the Respondent.
( As Approved)
The Plaintiffs, Elitestone Ltd., are the owners of the freehold of land known as Holt's Field, Murton, Near Swansea, which they acquired in 1989 from Trustees of the estate of the late Mr Frederick Holt. He had inherited that land from his father. Upon that land there exists 27 chalets sometimes referred to as units which in origin go back to the 1930s.
Elitestone purchased Holt's Field with view to its development in about 5 years from the date of purchase. In April 1990, they offered the occupiers of the units fixed term licences for a sum which they believed reflected their cost of acquisition. The occupiers were not prepared to pay. That led Elitestone to issue the 27 separate proceedings for possession. All of them were resisted and five of them were selected as lead actions with the others being stayed. The five are:
Case No Defendant Unit
1.9103263 Jane Davies 2
2.9103262 David Morris
and Judith Sked 6
3.9103153 Jonathan Williams,
Beverley Williams
and Judith Sked 12
4.9103446 Anthony Court,
Raymond Lawrence
and Karen Lawrence 18
5.9103260 Terence Payne and
Karen Terry 22
The lead actions came before Mr Assistant Recorder Bidder who, in a reserved judgment handed down on 7th March 1994, concluded that in all 5 cases there were tenancies for a term certain and that those tenancies prohibited sub-letting. He rejected allegations of estoppel raised by the parties and ordered possession of four of the units, namely Units 2, 12, 18 and 22. He held that Mr Morris was a statutory tenant of Unit 6 and therefore dismissed the Plaintiff's claim for possession of that Unit. The Defendants, against whom the orders for possession were made, appeal with leave of this court. Elitestone also appeal against the order dismissing their claim for possession of Unit 6.
Before the judge a number of issues arose but on this appeal the only issues that needed to be decided were as follows:
(A) Was Mr Morris entitled to protection as the statutory tenant of Unit 6?
(B) Were the tenancies for the units in question fixed term as found by the judge or periodic tenancies as submitted by the Defendants? If the latter, no order for their possession should have been made as the appropriate notice to quit had not at that time been served.
(C) Did the tenancy of Unit 12 preclude sub-letting and were Mr and Mrs Williams lawful sub-tenants of Unit 12?
(D) Were the Plaintiffs estopped from asserting their claims to possession?
Before coming to those issues I will deal with the background facts which in substance are no longer in dispute. The judge in his careful judgment set out the history of each of the units. He also visited Holt's Field which he described in this way (paragraph 3 of the judgment):
"The plots are reached from Manselfield Road along a rough track. The chalets built on the plots are as can be seen from the plan arranged, in the main, around a central area, which is grassed. The whole area is set in an area of deciduous woodland. It has a remarkably peaceful atmosphere. In evidence, it has been described as an 'Arcadia'. While the chalets and their surrounding plots are in varying states of repair and tidiness that does not seem to me to be an inappropriate metaphorical reference. There is no doubt that an exceptional, possibly unique, community has been established in the area."
It seems that the first chalet was built in about 1934 by the grandfather of Mr Raymond Davies. It was a wooden structure which probably was designed by an architect. Other similar structures were built in the years before the Second World War with most of those that existed either in their original form or as altered being built by the end of the war.
The judge found that there was an agreement with Mr Holt for permission to build the first chalet and probably the remaining chalets, but it was quite impossible to say what the terms of those agreements were. It seems that initially the chalets were used for holiday purposes, but that one or more were permanently occupied before the War. During the War, Swansea was the target of heavy bombing. In that emergency situation the Holt family responded by allowing residents of Swansea to live in comparative safety in the chalets all year round. After the War occupation of the chalets reverted, so far as the judge could tell, to their pre-War position. However, during the late 1970s and to a more significant extent the 1980s, people began to occupy the chalets as their home on an all year round basis with the result that by the mid-1980s nearly all the chalets were occupied as residential homes.
The nature and history of each of the chalets differ, but the arrangements between the freeholders and the occupiers followed a pattern which can be ascertained from the documents that still exist.
From documents dated 1964, it seems that the freeholders were at that time charging a fee of £3 per year. That appears from a letter of the 11th August 1964 from the Bank Manager of the Treorchy Branch of the Midland Bank. In that letter which he wrote to the solicitors for the freeholders.
"Thank you very much for your letter of yesterday's date in which you have kindly clarified the circumstances relating to seasonal licenses associated with the bungalows situated in the above mentioned site. I shall in due course convey your helpful information to Mr R C Webb who, in consequence of his temporary absence from Treorchy for the next few days, has asked me to forward on his behalf the enclosed cheque for £3/-/-d., being the Ground Rent now due in respect of Bungalow No. 28."
About that time a typical transaction involved a request for payment and after payment a letter which stated:
"We thank you for letting us have a remittance for £4 in respect of the Licence fee of £3 and our costs of £1 on the renewal of the Licence in respect of the above mentioned bungalow.
"We confirm that so far as we are aware the Licence can be renewed for the current season."
In 1971, Unit No. 6 was in the possession of Mrs Shank and on 6th November 1971, Mr Morris the current occupier agreed to pay her £250 in return for which she allowed him into possession. It seems that Mr Morris contacted the Holt trustees who were the freeholders because on the 31st May 1972 Mr Morris entered into a written agreement with them. In that agreement he was called "The licensee". Clause 1 was in this form:
"1. Subject as hereinafter contained the Owners will permit the Licensee: -
(a) to enter upon ALL THAT piece or parcel of land situate at Murton Near Swansea aforesaid and known as Holt's Field (hereinafter called 'the Field') and to keep thereon a bungalow and to reside with his or her immediate family in the bungalow situated thereon and for that purpose only to have the necessary use of the site known as Site number 6 and
(b) for the purpose of the use and convenience incidental to the use of the bungalow but not further or otherwise and in common with all other persons having a like right to go pass and repass over and along the paths and tracks leading to the main road on the Field."
Clause 2 stated that the licence would endure for a period of 26 weeks from the 1st April 1972. Clause 3 provided for an advocate payment of the £3 licence fee. Clause 4 contained the following mutual covenants:
"4. The owners and Licensee hereby agree -
(a) that it is not the intention of either of them to create between them the relation of Landlord and Tenant
(b) that legal possession and control of the Field shall at all times remain vested in the Owners and the Licensee shall not hereby acquire any estate or interest therein.
(c) that the Licensee shall not be entitled to use the Field to the exclusion of the Owners and others authorised by them."
Clause 5 contained covenants by the licensee. Clause 6 stated that the licence was personal to the licensee and was not assignable. Clause 7 stated that the licence would terminate if the licensee failed to perform his obligations under the agreement.
After 1972 the general pattern of events was that the solicitors for the freeholders wrote each January to the occupiers. A typical letter is that of 7th January 1974 to Mr Morris:
"Dear Sir,
re: Your Bungalow at Holt's Field, Murton. We have been instructed by the Trustees of the Estate of the late Mr Holt that they are prepared to authorise the renewal of the Licences for these Bungalows for the season from 1st April to 30th September 1974, and we shall be glad to receive the Licence Fee and costs in respect thereof, which will become due on the 1st April next."
The letter goes on to deal with the question of Value Added Tax which is not relevant. After payment a receipt was issued.
In about 1985 the Holt Trustees were considering ways of developing Holt's Field. With that end in view solicitors, on their behalf, wrote to the occupiers on 25th July 1985 a...
To continue reading
Request your trial