Gladstone v Bower

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE SELLERS,LORD JUSTICE PEARCE,LORD JUSTICE DEVLIN
Judgment Date27 July 1960
Judgment citation (vLex)[1960] EWCA Civ J0727-1
Date27 July 1960

[1960] EWCA Civ J0727-1

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Sellers

Lord Justice Pearce and

Lord Justice Devlin

Gladstone
and
Bower

Mr. A. C. CRIPPS, Q.C., Mr. J. L. LE QUESNE and Mr. D. Jackson (instructed by Messrs. Ellis & Fairbairn, Agents for Messrs. Walker, Smith & Way, Chester), appeared for the Appellant, Defendant below.

Mr. LIONEL A. BLUNDELL, Q.C.,(Instructed by Messrs. Theodore Goddark & Co., Agents for Messrs. Llewellyn-Jones & Armon Ellis, Rhyl) appeared for the Respondent, Plaintiff below.

LORD JUSTICE SELLERS
1

: I will ask Lord Justice Pearce to give the first judgment of the Court.

LORD JUSTICE PEARCE
2

The Defendant appeals against a judgment for possession and mesne profits given in the Plaintiff's favour by Mr. Justice Diplock.

3

By an agreement in writing dated 29th March 1956 the Plaintiff let a farm to the Defendant for the term certain of 18 months from 1st day of November 1955 terminating on the 1st day of May 1957. Both parties agree that this was a letting of an agricultural holding within the meaning of Section 1 of the Agricultural Holdings Act 1948.

4

To be within the Act a tenancy must by Section 1 (1) be "a contract of tenancy" which by definition (Section 94 (1)) means a letting of land or agreement for letting of land "for a term of years or from year to year." Both parties are agreed for the purposes of the case that (although the matter is not wholly free from doubt) this letting, being in excess of one year, comes within the definition of "a term of years" and the learned Judge dealt with the matter on that basis.

5

No notice to quit was given. This was not necessary at common law, since the tenancy would automatically terminate on 1st May 1957. The tenant however contends that the tenancy took effect as a tenancy from year to year by virtue of Section 2 (1) of the Act, so that it continues until terminated by notice to quit and the landlord has therefore no right to possession. And if the landlord in order to determine the tenancy is compelled to serve a notice to quit the tenant will thereby be enabled to serve a counter notice under Section 24 and obtain the security of tenure and other benefits conferred on tenants under the Act. The broad issue in the case therefore is whether the tenancy is entitled to the protection and benefits of the Act.

6

The Act in general gives protection to tenants of agricultural holdings. If the learned Judge is right in holding that Section 2 (1) does not apply to this tenancy, there is a gap in that protection which he felt (as a guess) was probably due to an omission on the part of the legislature. The tenant argues there has been no such omission, that there is no gap in the general protection afforded to tenants, and that this tenancy is in fact protected.

7

The learned Judge gave a concise and clear summary of the antecedents of the Act, but he concluded that they provided no material either to support the tenant's argument or to destroy it. The protection afforded to tenants by the Agricultural Holdings Act 1923 was less valuable and less general in its application than that given by the 1948 Act.

8

Mr. Blundell for the landlord argues that the wide words of Section 2 (1) of the 1948 Act were not designed to give a general protection to tenancies for fixed terms of short duration hut were merely directed to preventing evasion on the lines of Land Settlement Association v. Carr, 1944 Kings Bench 657, in which a periodic letting from 364 days to 364 days successfully avoided the provisions of the 1923 Act. One must therefore, he argues, approach the section on the basis that any omission of protection is a deliberate maintenance of the pre-existing position and that any protection of short terms, except so far as necessary to stop such evasions, is fortuitous. That ingenious argument does not persuade me. Mr. Cripps for the tenant admits that he can found no argument on the provisions of the earlier Act and I accept his sub-mission that they provide no argument in the landlord's favour.

9

Section 2 (1) of the 1948 Act provides that "where land is let to a person for use as agricultural land for an interest less than a tenant from year to year or a person is granted a licence to occupy land for use as agricultural land and the circumstances are such that if his interest were a tenancy from year to year he would in respect of that land be tenant of an agricultural holding - then" unless the letting or grant was approved by the Minister before the agreement was entered into the agreement shall take effect with the necessary modifications as if it were an agreement for the letting of the land for a tenancy from year to year.

10

Section 3 (1) provides that "a tenancy of an agricultural holding for a term of two years or upwards shall instead of terminating on the expiration of the term for which it was granted continue (as from the expiration of that term) as a tenancy from year to year".

11

If the letting for a term of 18 months was not a "letting for an interest less than a tenant from year to year" under Section 2 (1) it escapes from both Sections; and the tenant does not enjoy the protection of the Act.

12

At common law a tenancy for 18 months clearly does not create an interest less than a tenancy from year to year. For the latter may be determined at the end of one year while the former continues for 18 months certain.

13

But it is argued for the tenant that a tenancy from year to year under the Act, unlike a tenancy from year to year at common law, is in fact equivalent to a tenancy for two years since it cannot be determined until two years have expired; and the standard of comparison under Section 2 (1) is a tenancy from year to year under the Act and not a common law tenancy from year to year. That being so, it is argued, the 18 months tenancy creates an interest less than a tenancy under the Act and is therefore within the provisions of Section 2 (1). The basis of this argument is Section 23 (1) which provides to tenants from year to year inter alios additional protection in that (with certain exceptions contained in the proviso) "a notice to quit an agricultural holding or part of an agricultural holding shall (notwithstanding any provision to the contrary in the contract of tenancy of the holding) be invalid if it purports to terminate the tenancy before the expiration of 12 months from the end of the then current year of tenancy". Thus in practice a tenancy from year to year cannot normally be determined until 2 years after its commencement.

14

This argument would read the words "where the land is let to a person for use as agricultural land for an interest less than a tenancy from year to year" as meaning "where land is let to a person for use as agricultural land for an interest less than a tenancy from year to year, as enlarged by the Agricultural Holdings Act so as to be equivalent to a tenancy of 2 years". Tenancies less than 2 years would, thus be protected under Section 2 (1) and tenancies for 2 years and upwards would be protected under Section 3 (1). So one would get universal and logical protection instead of a capricious protection that omits to cover tenancies for more than one year and less than two. The power of the Minister to give his approval to some tenancies, and allow them to escape the effects of Section 2 (1) is used in argument as a confirmation of the view that Section 2 (1) is meant to cover every tenancy that is not covered by Section 3 (1). Moreover, it is said, by so reading the Section one achieves a comparison of like with like, a comparison of one tenancy under the Act with another tenancy under the Act. There is clearly much attraction and force in such an argument.

15

It is further contended that comparison with a common law tenancy from year to year cannot have been intended by Section 2 (1) because in that case it would have been so simple to say "less than a year" instead of the more cumbersome "less than a tenancy from year to year". But that argument applies a for...

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