Jenkin Thomas Rees v The Right Honourable Ivor Edward Windsor-Clive, Earl of Plymouth
| Jurisdiction | England & Wales |
| Judge | Jarman |
| Judgment Date | 11 November 2020 |
| Neutral Citation | [2020] EWHC 2986 (Ch) |
| Court | Chancery Division |
| Date | 11 November 2020 |
| Docket Number | Case No: PT-2020-CDF-000006 |
[2020] EWHC 2986 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Cardiff Civil and Family Justice Centre
2 Park Street, Cardiff CF10 1ET
HIS HONOUR JUDGE Jarman QC
Sitting as a judge of the High Court
Case No: PT-2020-CDF-000006
Mr Edward Peters (instructed by Ebery Williams Solicitors) for the claimant
Ms Katherine Holland QC and Dr Christopher McNall (instructed by Burges Salmon LLP) for the defendants
Hearing dates: 29 October 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Jarman QC
HH JUDGE Jarman QC:
The claimant as tenant challenges an arbitration award dated 21 January 2020 under the Agricultural Holdings Act 1986 (the 1986 Act) regarding five ‘Case B’ notices to quit served on him by his landlords, the defendants. The arbitrator Robert Hicks upheld the validity of three of the notices. The tenant relies on five grounds in seeking to set aside the award and to remit it to the arbitrator for reconsideration. Two of the grounds involve appeals on questions of law under section 69 of the Arbitration Act 1996 (the 1996 Act), and the remaining three grounds allege serious irregularities in the arbitration process under section 68 of the 1996 Act.
Subsection (2) of the latter section defines such an irregularity as one or more of the kinds therein set out which the court considers has caused or will cause substantial injustice to the applicant. The kinds set out include failure to comply with the general duty of the tribunal under section 33 of the 1996 Act, exceeding its powers or failing to conduct the proceedings in accordance with the procedure agreed by the parties. Section 33(1)(a) requires the tribunal to act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting their case and dealing with that of the opponent.
The three notices which were upheld relate to all of the tenant's home and farmland at Maesllech Farm, Radyr, Cardiff, held under two tenancies, one dated 1965 and the other dated 1968. About 187 acres were let under the first tenancy and a further 51 acres let under the second. A notice was given in respect of each tenancy. The third notice relates to a strip of land demised by the 1965 tenancy agreement and overlaps with the 1965 tenancy notice. Each tenancy is protected by the 1986 Act.
The first question of law is stated as follows:
“Under Case B of Schedule 3 to the Agricultural Holdings Act 1986, must the relevant land be required for the relevant use on the expiry of the notice to quit, or within a relatively short time thereafter (as the Claimant contends); or (as the Defendant contended, and the Arbitrator determined) is it sufficient for the landlord to establish that he will require the land for the relevant use at some point in the future.”
Case B, so far as material, provides:
“The notice to quit is given on the ground that the land is required for a use, other than agriculture…for which permission has been granted on an application made under the enactments relating to town and country planning… and that fact is stated in the notice.”
The key part of Case B in the present appeal is the phrase “is required.” It was ultimately not in dispute before me that that means that the land must be so required at the end of the period stated in the notice or within a relatively short time thereafter, rather than in the more distant future or at some as yet unascertained time (see Jones v Gates [1954] 1 WLR 222 at 224, Muir Watt & Moss's Agricultural Holdings 15 th edition (2018) paragraphs 15.73 – 15.74, and Scammell Densham, and Williams's Law of Agricultural Holdings 10 th edition (2015) paragraph 39.33). It is also common ground that the landlords must show an intention to develop and a reasonable prospect of doing so (see Paddock Investments Ltd v Lory [1975] 2 EGLR 5).
The planning permissions which the landlords obtained in the present case are dated 9 August 2016 and 20 March 2017 and permit the building of 7000 houses on Maesllech Farm and other land. The permitted development, known as Plasdwr, is to be carried out in a number of phases, within a period of twenty years. The permission extends to development which is ancillary to the new housing, and includes, in the words of the arbitrator in his award:
“…a new secondary school, three new primary schools, a community centre with one large supermarket and two smaller supermarkets. It entailed the construction of a new ring road, alterations to the Llantrisant Road, alterations to the 125kv power line with associated transformers to permit the cables to be laid underground, the relocation of a 2′6″ gas main which was to be sited under the ring road with the appropriate infrastructure as well as all new service roads, services, sustainable urban drainage systems etc.”
In the hearing before the arbitrator, the landlords called two witnesses, Wayne Rees, the project manager for the lead developers, and Michael Lawley of Cooke & Arkwright, chartered surveyors and agents for the landlords. The arbitrator found them to be sound, reliable and knowledgeable witnesses who, he said in his award, were clearly heavily involved in the matter and all aspects thereof. He found them to be credible witnesses.
Unlike the arbitrator I have not seen or heard the witnesses and there was no transcript of evidence put before me. Mr Peters, for the tenant, in his skeleton argument quoted from the evidence of Mr Lawley, and says that he accepted in cross-examination that he could not say year by year what part of the land in respect of which the notices were served would be required in each year, and that would not be known for another two or three months. Moreover, he accepted that the planning for the phasing and programming of tranche 2 of the development was “embryonic.” Mr Peters quotes Mr Lawley as follows:
“Of course we don't know exactly when the parcels [in tranche 2 of the development] will be available for disposal. We need to know first when the roads will be there, and when the services will be there, and once we know that, then we will be able to know a date.”
Mr Peters submits that it was clear from this evidence and from that of Mr Rees, that decisions concerning the phasing and timescales for most of the infrastructure works had not yet been made and that whilst some elements of infrastructure on some of the land might be built in the next few years, others would not be constructed until much later in the future, on as yet unascertained dates.
The real issue on the first question of law in the present appeal is whether the arbitrator applied the correct test to the facts as found by him. Mr Peters submits that the arbitrator, who took advice from Leslie Blohm QC, nevertheless erred in six ways. First, he determined that it is purely a subjective question for the landlord to decide whether or not he so ‘requires’ the land. He pointed to parts of Mr Blohm's advice which he says suggest that that was the test. Second, he determined that Case B does not require the relevant land to be required for the relevant use at the expiry of the notice to quit or within a relatively short time thereafter. Third, he determined that Case B could be satisfied even “if the relevant work is to be carried out at some distant date in the future.” Fourth, he failed to make determinations of fact as to when the various parts of the land which was the subject of the notices to quit might be so required. Fifth, he found that Case B was satisfied even though he accepted that some of the land contained within the notice to quit will not be developed for a number of years. Sixth, he placed weight on his finding that land would be needed for earth moving, storage and infrastructure works without making any finding as to when such requirement would arise.
The findings of the arbitrator on these points are set out in paragraphs 7.2.3–4 of the award. After citing extensively from the advice of Mr Blohm QC, including that the landlords must show that they require all of the land to which the notice applies, subject to the de minimis principle, the arbitrator said this:
“7.2.3. I was presented with voluminous evidence that the Landlords genuinely wished to take possession of this land for development. The site inspection showed me that the development is already occurring on various sites adjacent to Maesllech Farm which now stands as an island of undeveloped agricultural land within a sea of residential development…Whilst I accept that some of the land contained within this Notice to Quit will not be developed for a number of years and note the 20 year time limit on the planning consent, I take on board the advice given by Mr Blohm QC and note the evidence given by Mr Lawley and W Rees as to how they need availability and access to this land for earth moving and storage, together with the need for carrying out infrastructure works in respect of gas, water and roads etc. The test which I have to put on this are, does the Landlord require the land which I answer yes, does he genuinely intend the develop the land to which I answer yes, does he genuinely intend to develop the land to which I answer yes and is there a...
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February 2021: Construction Litigation Update
...determined in the arbitration. The High Court also took a similar approach in the recent decision of Rees v. Windsor-Clive and Others [2020] EWHC 2986 (Ch). In that decision, the Court refused the claimant’s challenge against a further award issued by the arbitral tribunal, which was render......