Hemens v Whitsbury Farm and Stud Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE LAWTON,LORD JUSTICE BALCOMBE,LORD JUSTICE LLOYD
Judgment Date05 November 1986
Judgment citation (vLex)[1986] EWCA Civ J1105-3
Docket Number86/0989
Date05 November 1986

[1986] EWCA Civ J1105-3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

ON APPEAL FROM THE LANDS TRIBUNAL

Royal Courts of Justice

Before:

Lord Justice Lawton

Lord Justice Lloyd

Lord Justice Balcombe

86/0989

M. A. Hemens (Valuation Officer)
Respondent
and
Whitsbury Farm & Stud Limited
Appellants

MR. WILLIAM GLOVER Q.C. and MR. ALUN ALESBURY (instructed by Messrs. Ward Bowie, London Agents for Messrs. Rustons & Lloyd, Newmarket) appeared for the Appellants.

MR. ALAN FLETCHER Q.C. and MR. NICHOLAS HUSKINSON (instructed by The Solicitor of Inland Revenue) appeared for the Respondent.

LORD JUSTICE LAWTON
1

This is an appeal by Whitsbury Farm and Stud Limited, who are the owners of a stud for the breeding of thoroughbred racing stock, against a refusal by the Lands Tribunal to declare divers buildings on their land exempt from rating. The appeal raises issues which have been discussed and litigated since at least 1930 and which are of interest to all who are engaged in breeding thoroughbred racing stock.

2

THE FACTS

3

The facts set out in the case stated by the Lands Tribunal can be stated shortly. The appellants occupy at Whitsbury in Hampshire four separate stud hereditaments. Each stud lies within, or is attached to, land which is agricultural land within the meaning of section 26(3) of the General Hate Act 1967. At all material times the stud buildings were in excellent condition and were essential for accommodating and breeding thoroughbred racing stock. The covering of mares by the stallions was usually accomplished in a covering yard; but sometimes it took place outside in the adjoining paddocks. The stallions were owned by a syndicate of forty shareholders. The appellants were shareholders in this syndicate. The syndicate made contracts with those owners who brought mares to the stallions to be covered. The income from the service fees went to such of the shareholders as sold the breeding rights. The appellants were paid by the syndicate the cost of keeping the stallions. The mares which were covered were either the appellants' own property or visiting mares. Visiting mares were kept at the stud until such time, usually 60 days, as it took to discover whether they were in foal. Some of the appellants' mares were sent to other studs to be covered. Because of the Jockey Club's rules for deciding the age of racehorses, covering took place between 15 February and 15 July each year. Nearly all the mares produced their foals at night in the foaling boxes but a few did so in the paddocks in daylight. All the mares and stallions had access to paddocks and, save in frosty weather, the mares spent most of each day in them. Paddocks were essential for the running of the appellants' stud. They afforded space for exercise; and for mares and foals the grass in them provided during the growing season, that is from March until high summer, nourishment of a kind which mares required for providing milk for their foals and bringing them into season and foals for growth. The paddocks were well looked after because producing good quality grass was important for breeding. From time to time, sheep and cattle were put into the paddocks, the object of doing so being to keep the grass down and to stop seeding. The appellants' stud was run in the way in which studs are normally run. Lord Wright's description in Lord Glanely v. Wightman (1933) A.C. 618 at pages 634 to 635 of how Lord Glanely's stud was run is much the same as that in the case stated in this case. No more detail is necessary for providing the factual background to this appeal.

4

THE ISSUES

5

Broadly stated, this court has to ask itself this question: For rating purposes, should breeding thoroughbred racing stock on premises with agricultural land attached or adjoining be equated with the breeding of cattle and sheep on agricultural land? If it should be, those who run studs should have the benefit of the same exemptions from rating as the occupiers of agricultural land enjoy. This broad question, however, has been complicated by the statutory language in which Parliament has given the occupiers of agricultural land their exemptions.

6

THE LEGISLATIVE HISTORY

7

Before 1896 farmers were rated just like other occupiers of land. The Agriculture Rates Act of that year gave for a period of five years a 50 per cent exemption from rates to the occupiers of "agricultural land" which was defined in section 9 as follows:

"The expression 'agricultural land' means any land used as arable, meadow, or pasture ground only, cottage gardens exceeding one quarter of an acre, market gardens, nursery grounds, orchards or allotments, but does not include land occupied together with a house as a park, gardens, other than as aforesaid, pleasure-grounds, or any land kept or preserved mainly or exclusively for purposes of sport or recreation, or land used as a racecourse."

8

Thereafter, other Acts extended the period and increased the percentage of the exemption. The Local Government Act 1929 derated agricultural land fully. The General Rate Act 1967 consolidated various enactments relating to rating and valuation and by section 26 continued the policy of the earlier statutes of derating 'agricultural land' and 'agricultural buildings'. Agricultural land was defined in the 1967 Act in substantially the same terms as in the 1896 Act: see section 26(3). Such differences as there are have no relevance to this appeal. The relevant part of the definition of 'agricultural buildings' in section 26(4) was as follows:

"In this section, the expression 'agricultural buildings'—

(a) means buildings (other than dwellings) occupied together with agricultural land or being or forming part of a market garden, and in either case used solely in connection with agricultural operations thereon;…"

9

Farmers in Scotland were given the same kind of exemption from rating as those in England and Wales; but, as the rating system there was different, as was the legal terminology for describing interests in land, different wording had to be used. The first Scottish provision granting partial relief from rates was contained in the Agricultural Rates, Congested Districts, and Burgh Land Tax Relief (Scotland) Act 1896. A relevant modern provision was in section 7 of the Valuation and Rating (Scotland) Act 1956. Sub-section (2) was as follows:

"'agricultural lands and heritages' means any lands and heritages used for agricultural or pastoral purposes only or as woodlands, market gardens, orchards, allotments or allotment gardens and any lands exceeding one quarter of an acre used for the purpose of poultry farming, but does not include any buildings thereon other than agricultural buildings, or any garden, yard, garage, outhouse or pertinent belonging to and occupied along with a dwelling-house, or any land kept or preserved mainly or exclusively for sporting purposes;

"'agricultural buildings' means buildings (other than dwelling-houses) occupied together with agricultural lands and heritages, or being or forming part of a market garden, and in either case used solely in connection with agricultural operations thereon;".

10

Since 1945, regulatory statutes have been passed which affect agricultural land, which in the interests of precision and clarity has been defined. One such Act was the Town and Country Planning Act 1947. By section 12(2) it provided as follows:

"…

Provided that the following operations or uses of land shall not be deemed…to involve development of the land…

(e) the use of any land for the purposes of agriculture…"

11

Agriculture was defined in section 119(1):

"In this Act…'agriculture' includes…dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land)…"

12

The 1947 Act dealt with a subject matter different from rating; but it was concerned, just as the General Rate Act 1967 is, with the consequences which follow from carrying on specified activities on land. It follows, in my judgment, that decisions upon the construction of section 7(2) of the 1956 Act and section 119(1) of the 1947 Act provide some, but not conclusive, help in the construction of section 26(3) and (4) of the 1967 Act. I conclude the legislative history relating to the derating of agricultural land and agricultural buildings with the Rating Act 1971, which was, according to its long title,

"An Act to extend the provisions relating to the exemption from rating of land and buildings used in connection with agriculture."

13

This Act was passed following the decision in V. and J. B. Eastwood Ltd. v. Herrod (1971) A.C. 160. The House of Lords had adjudged that broiler houses on a farm were not exempt from rating because they were not "agricultural buildings" as defined by section 2(2) of the Rating and Valuation (Apportionment) Act 1928 which was the statute in force when the dispute arose, but which was superseded by section 26(4) of the 1967 Act. The relevant part of the 1971 Act is in section 2 and is as follows:

"Subject to sub-sections (2) to (4) of this section, each of the following is an agricultural building by virtue of this section—

  • (a) any building used for the keeping or breeding of livestock;…

(2) A building used as mentioned in subsection (1)(a) of this section is not an agricultural building by virtue of this section unless either

  • (a) it is solely so used; or

  • (b) it is occupied together with agricultural land (as defined in the principal section) and used also in connection with agricultural operations on that land, and that other use together with the use mentioned in subsection (1)(a) of this section is its sole use."

14

THE ENGLISH CASES

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2 cases
  • Hemens v Whitsbury Farm and Stud Ltd
    • United Kingdom
    • House of Lords
    • 10 December 1987
    ...held that the hereditaments were entitled to derating, but the Lands Tribunal and the Court of Appeal (Lawton, Lloyd and Balcombe LL.J) [1987] Q.B. 390 decided that they were 4The principal enactment concerned with the derating of agricultural premises in England and Wales is section 26 of......
  • Wheatley's Executors v Commissioners of Inland Revenue
    • United Kingdom
    • Special Commissioners
    • 5 March 1998
    ...Revenue (1996) Sp C 71. He placed reliance upon a dictum of Balcombe L J in a rating valuation case, Hemens v Whitsbury Farm Ltd UNK[1987] 1 All ER 430, where he said at page 445g: If that is right, then in the case of land used as pasture only it is necessary to consider the kind of animal......

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