Gisborne v Burton

JurisdictionEngland & Wales
JudgeLORD JUSTICE DILLON,LORD JUSTICE RALPH GIBSON,LORD JUSTICE RUSSELL
Judgment Date21 July 1988
Judgment citation (vLex)[1988] EWCA Civ J0721-2
Docket Number88/0632
CourtCourt of Appeal (Civil Division)
Date21 July 1988
Gisbourne and Another
and
Burton

[1988] EWCA Civ J0721-2

Before:

Lord Justice Dillon

Lord Justice Ralph Gibson

and

Lord Justice Russell

88/0632

IN THE SUPREME COURT OF JUDICATURE

COURT OP APPEAL. (CIVIL DIVISION)

ON APPEAL FROM THE SHAFTESBURY COUNTY COURT

HIS HONOUR JUDGE WILCOCK, Q.C.

Royal Courts of Justice

MR D.J ELVIN (instructed by Messrs porter Bartlett & Mayo) appeared on behalf of the appellant (defendant).

MR O.P. ALBERT (instructed by Messrs Francis & Crookenden) appeared on behalf of the respondents (plaintiffs).

LORD JUSTICE DILLON
1

This appeal, by the defendant in the action, Mr. Burton, against a decision of Judge Willcock Q.C given in the Shaftesbury County Court on the 6th April 1987, raises issues of law of general importance and, to my mind, of considerable difficulty in relation to the statutory provisions which under successive statutes since 1948 have conferred security of tenure on the tenants of agricultural holdings.

2

It will be in mind that one of the most important provisions of the Agricultural Holdings Act 1948 ("the 1948 Act") and indeed the nub of the security of tenure provisions of the 1948 Act, was section 24, which provided by sub-section (1) that:

"Where notice to quit an agricultural holding or part of an agricultural holding is given to the tenant thereof, and not later than one month from the giving of the notice to quit the tenant serves on the landlord a counter-notice in writing requiring that this sub-section shall apply to the notice to quit, then, subject to the provisions of the next following subsection, the notice to quit shall not have effect unless the Minister consents to the operation thereof".

3

Subsection 2 of section 24 then set out a limited number of cases where subsection (1) was not to apply—i.e., where the tenant was not to be entitled to stay the operation of a notice to quit by serving a counter notice—and section 25 set out a limited number of grounds on which alone the Minister could give his consent to the operation of a notice to quit an agricultural holding or part of an agricultural holding.

4

By a later amendment by the Agriculture Act 1958 the powers of the Minister were transferred to a quasi judicial body, the Agricultural Lands Tribunal.

5

Sections 24 and 25 of the 1948 Act, as previously amended, were replaced by sections 2 and 3 of, and subsequent provisions in, the Agricultural Holdings (Notices to Quit) Act 1977, which is the Act directly applicable to the present case. The provisions of the 1977 Act have themselves in turn been recently replaced by provisions in sections 26 and 27 of the Agricultural Holdings Act 1986. Though details, however, have been altered and elaborated, the scheme of the three Acts has remained the same, viz. that, save in a limited number of cases in which a tenant is not to be entitled to stay the operation of a notice to quit by serving a counter notice, a notice to quit an agricultural holding or part of an agricultural holding will not have effect, if the tenant serves a counter notice, unless the Tribunal consents to its operation on one or more of certain specified grounds.

6

In Johnson v. Moreton [1980] A.C. 37 the House of Lords held, for reasons based on the policy of the 1948 Act and the vital importance, both to the national economy and security, that the level of production and the efficiency of farms in this country should be maintained and improved, that a tenant of an agricultural holding could not deprive himself in advance or contract out of his right to give a counter notice under section 24 of the 1948 Act. The particular scheme which the House had to consider in Johnson v. Moreton, and held ineffective to deprive the tenant of his statutory rights under section 24, was the inclusion in a tenancy agreement of an agricultural holding, with the tenant's full knowledge and consent, of a covenant by the tenant not to serve any counter notice under section 24. When the landlords in due course served a first notice to quit on the tenant, the tenant served a counter notice. The landlords accepted that the counter notice was effective, by the mandatory terms of section 24, to stay the operation of the first notice to quit, but they claimed—unsuccessfully—that the service of the counter notice was a breach of a term or condition of the tenancy and that consequently the landlords were entitled to serve a second notice to quit, by reason of that breach, to which under section 24 (2) of the 1948 Act no second counter notice could be given. Lord Hailsham, at page 54 C, regarded the relevant clause in the tenancy agreement as an open, not to say brazen, attempt to get round the provisions of the agricultural holdings legislation so far as they provided security of tenure to the tenant; all their Lordships held that the attempt failed.

7

In the present case the court is faced with an equally open attempt to get round those provisions, albeit by a different route. The question is whether this attempt—however brazen—succeeds, as Judge Willcock held, or fails.

8

To understand the present scheme it is necessary to appreciate that under the common law a sub-tenancy comes automatically and simultaneously to an end, without the need for any notice to quit or notice of termination, when the head tenancy, out of which the sub-tenancy was carved, comes to an end by any means (other than surrender by the head tenant to the head landlord). Consequently it was held by Ormerod J. in Sherwood v. Moody (1952) 1 All E.R. 389 (which has never since been doubted) that a sub-tenant of agricultural land has no protection, and no power to serve a counter notice under section 24 (1) of the 1948 Act, if the tenancy of his immediate landlord, the head tenant, has been effectively determined by the head landlord; in Sherwood v. Moody the determination of the head tenancy was by a notice to quit given to the head tenant by the head landlord, to the operation of which the Minister gave his consent.

9

Unlike the Rent Acts, the agricultural holdings legislation contains no special provision for the protection of subtenants against head landlords. Section 26 (1) (e) of the 1948 Act gave the Minister power to make regulations for making provision for the purpose of safeguarding the interests of subtenants, including provision enabling the Minister or the Agricultural Lands Tribunal, where the interest of a tenant is terminated by notice to quit, to secure that a sub-tenant will hold from the landlord on the same terms as he held from the tenant. That power was transferred from the Minister to the Lord Chancellor by the Agriculture Act 1958. When section 26 of the 1948 Act was repealed by the 1977 Act, a similar power was conferred on the Lord Chancellor by section 5 (1) (d) of the 1977 Act, and it is now to be found in section 29 of, and paragraph 7 of Schedule 4 to, the 1986 Act. But none of these powers has ever been exercised.

10

Accordingly, on the advice of his solicitors, the owner of the land in question in the present case set about constructing, if he could, a situation in which the defendant, Mr Burton, would farm the land, but as a sub-tenant only in a situation in which the sub-tenancy could be terminated by termination of the head tenancy whenever the owner of the land wanted. The land in question is a farm known as Berrywood Farm, at Donhead St. Mary in Wiltshire, and at the relevant time in 1963 its owner was a Mr. Dick Christopherson. He died in February 1984 at the age of 90 and the plaintiffs in this action, respondents to the present appeal, are his personal representatives. In and just before 1963 Mr. Christopherson was having difficulties over farming Berrywood Farm and the defendant, who owned another farm in the neighbourhood, proffered his help, and offered to take Berrywood Farm off Mr. Christopherson's hands as his tenant. Mr. Christopherson consulted his solicitor, Mr Wilson of Messrs Francis and Crockenden. Mr. Wilson's proposals are clearly set out in a letter of the 13th December 1962, which is at page 27a of the Bundle. The avowed object of the proposals was that the defendant should not be entitled—if the scheme worked—to the benefit of the security provisions of the Agricultural Holdings Act.

11

Mr. Wilson prepared the necessary documents and what was done was that on the 6th April 1963 Mr. Christopherson granted his wife Mrs Kathleen Christopherson a tenancy on conventional terms of Berrywood Farm and on the same day she granted the defendant a tenancy, which was therefore intended to be a sub-tenancy, of the same land at the same rent. The evidence of Mrs Christopherson at the trial in the County Court was—whether relevant or not to any of the issues—that she thought it was a straight-forward tenancy between her husband and the defendant, and that she used to give her husband the cheques which the defendant gave her for rent.

12

The artificial nature of this tenancy/sub-tenancy arrangement is emphasised by the fact that there was some other land in the locality known as the Watery Lane land which the defendant was also going to farm. The Watery Lane land happened, however, to belong to Mrs Christopherson and not to her husband and so by a tenancy agreement, also of the 6th April, 1963, Mrs Christopherson granted her husband a tenancy of the Watery Lane land, and on the same day he granted the defendant a tenancy of the same land at the same rent. The Watery Lane land is not itself the subject of this litigation since it was sold, subject to the defendant's tenancy, many years ago.

13

So far as Berrywood Farm is concerned, the plaintiffs, as personal representatives of Mr. Christopherson after his death, served notice to quit on Mrs Christopherson and...

To continue reading

Request your trial
15 cases
  • Prosper Properties Limited V. Robert Bell
    • United Kingdom
    • Sheriff Court
    • 26 Marzo 2008
    ...by parties but not referred to in argument Antoniades v Villiers 1998 3 WLR 139 Earl of Ancaster v Doig 1960 SC 203 Gisborne v Burton [1989] QB 390 Lavan v Gavin Aird & Co 1919 SC 345 Stoneleigh Finance Ltd v Phillips [1965] 2 QB 537 Street v Mountford [1985] AC 809 (b) THE PARTIES' PLEADIN......
  • Pennell v Payne
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 25 Noviembre 1994
    ...wholly unpersuasive. That there is ample scope for collusion whatever the outcome of this appeal is plain from existing authorities — Gisborne -v- Burton [1989] QB 390 and Sparkes -v- Smart [1990] 2 EGLR 245 are two in point. So far from collusion being more easily concealed by the scheme......
  • Burdis v Livsey ; Clark v Ardington Electrical Services ; Dennard v Plant ; Sen v Steelform Engineering Company Ltd ; Lagden v O'Connor
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 1 Mayo 2002
    ...pretences (mere "dressing up"). The landlord did not genuinely intend to exercise his right of occupation. The insurers also relied on Gisborne v Burton [1989] 1 QB 390, to similar effect where the landlord had tried to evade the Agricultural Holdings Act 1948 by granting a tenancy to the f......
  • Bankway Properties Ltd v Penfold-Dunsford and Another
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 10 Abril 2001
    ...the Rent Acts (see Antoniades v Villiers, above) but also in the context of agricultural tenancies ( Johnson v Moreton [1980] AC 37and Gisburne v Burton [1989] 1 QB 391), the question whether a hire purchase agreement is in fact an unregistered bill of sale (see for example Re Watson (1890)......
  • Request a trial to view additional results
2 books & journal articles
  • Agricultural Holdings Act 1986 Tenancies
    • United Kingdom
    • Wildy Simmonds & Hill Agricultural Tenancies - 3rd edition Part 1. Legal background, definitions and relevant law
    • 29 Agosto 2018
    ...the landlord or the tenant, the sub-tenancy will automatically terminate. 7 5 Gladstone v Bower [1960] 2 QB 384. 6 Gisborne v Burton [1988] 3 All ER 760. 7 Pennell v Payne [1995] 2 All ER 592. 54 Agricultural Tenancies However, a surrender of the intermediate tenancy will not determine the ......
  • Table of Cases
    • United Kingdom
    • Wildy Simmonds & Hill Agricultural Tenancies - 3rd edition Preliminary Sections
    • 29 Agosto 2018
    ...ER 336, (1997) 73 P & CR 9, [1995] 2 EGLR 55, CA 40 Gardner v Ingram (1889) 61 LTNS 729, [1886–90] All ER Rep 258 60 Gisborne v Burton [1989] QB 390, [1988] 3 WLR 921, [1988] 3 All ER 760, CA 53 Gladstone v Bower [1960] 2 QB 384, [1960] 3 WLR 575, [1960] 3 All ER 353, CA 53 Howkins v Jardin......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT