Rugby Joint Water Board v Shaw-Fox ; Rugby Joint Water Board v Foottit
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PHILLIMORE,LORD JUSTICE CAIRNS |
| Judgment Date | 22 October 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J1022-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 October 1970 |
[1970] EWCA Civ J1022-1
In The Supreme Court of Judicature
Court of Appeal
Appeals from the determination of the Lands Tribunal of 27th November, 1969.
The Master of The Rolls (Lord Denning)
Lord Justice Phillimore and
Lord Justice Cairns.
In the Matter of a Reference
Mr. G.H. NEWSOM, Q.C., and Mr. GUY W. SEWARD (instructed by Messrs. Bretherton Turpin & Pell of Rugby) appeared on behalf of the Rugby Joint Water Board.
Mr. W.J. GLOVER, Q.C., and Mr. JOHN GROVE (instructed by Messrs. Witham Weld & Co. of Liverpool) appeared on behalf of the Claimants.
This case arises out of a proposal to construct a reservoir in Warwickshire. The Rugby Joint Water Board obtained compulsory powers to take some farmland. The question is the proper measure of compensation.
One farm was owned by Mr. and Mrs. Foottit. The Board took 129 acres out of the 132 acres of their farm. The other farm was owned by Mrs. Shaw-Fox. The Board took 120 acres out of the 216 acres of her farm. Both farms were let to agricultural tenants. In each lease there was a power for the owner to determine the tenancy on 12 months' notice, expiring on Lady Day of any year. In addition, in Mr. and Mrs. Foottit's case there was a clause giving the landlords power to resume possession when it was required for special purposes.
On 6th April 1966, the Minister gave to the Rugby Water Board planning permission so as to enable the Board to construct a reservoir on the land. On 17th March 1967, the Board, in pursuance of their compulsory powers, served notices to treat on the owners and occupiers of the farms. The question is: What compensation is payable to the owners of the farms? as distinct from the tenants. The owners say that compensation should be assessed on the basis that each of them could turn out his tenant on a year's notice, that is, by a notice given on 25th March, 1967. to expire on 25th March, 1968: so that the owners would get vacant possession in a year's time. Whereas, the Water Board say that the compensation should be assessed on the basis that the tenant had virtually a right to be there for life under the Agricultural Holdings Acts: so that the owners would not get possession until the tenant died - which might be many years to come.
This point would seem to be covered by the decision in Minister of Transport v. Pettit (1969 Volume 20, Property and Compensation Reports, 344). In that case we considered the compensation payable to the tenant of a farm on its compulsory acquisition. The majority of this Court held that the tenant would only get small compensation because his compensation would have to be assessedon the basis that he could be turned out on 12 months' notice. That decision is in full accord with the Agricultural ( Miscellaneous Provisions) Act, 1968. Section 42 of that Act says, in effect, that the tenant's compensation shall he assessed on the basis that he has to go on the expiry of 12 months' notice to quit. (But it is to be noticed that he gets compensation for disturbance under Section 9 of that Act, which would be a sum equal to four years' rent).
If Pettit's case was rightly decided (that the tenant only gets small compensation on the basis that he has only 12 months to go) it seems to follow that the owner of the farm should get large compensation on the basis that, at the end of the twelve months, he would get vacant possession. Mr. Newsom, for the Water Board, recognised that Pettit's Case is binding on this Court: but he seeks to distinguish it by taking a point which was not taken there. He goes back to Section 24(2)(b) of the C agricultural Holdings Act, 1968, which says that the landlord of an agricultural holding can get the tenant out on 12 months notice if "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". Mr. Newsom says that subsection only applies when the land is required by the landlord and not when it is required by anyone else, such as the Water Board here. I cannot agree with this submission. The section does not say "is required by the landlord for use by him". It simply says, is required for "a use other than agriculture", which means, I think, a use by anyone so long as the person is sufficiently definite, and the requirement sufficiently certain. That is borne out by what Lord Evershed said in Jones v. Gates (1954 1 W.L.R. 22 at page 224). It is to be noticed also that planning permission can be given to third persons (other than landlord and tenant) who have not yet acquired the land but only intend to acquire it.
I am of opinion, therefore, that Section 24(2)(b) applies in this case to this effect: once planning permission was given to the Water Board to construct a reservoir, and the land was requiredby them for the purpose, the owners of the farms were entitled to turn out the tenants on twelve months' notice. The compensation should, therefore, be assessed on that basis.
Now, I turn to the cross-appeal. It only applies in Foottit's case. The lease gave the landlord in certain circumstances power to resume possession on six weeks' notice. The owners say that the compensation should be assessed on that basis, and not on the basis that they had to give twelve months' notice. The particular clause in the lease was a reservation reserving to the landlords:
"(3) The right pursuant to Section 23(1) of the Agricultural Holdings Act, 1948 (a) from time to time to resume possession of any part of the said lands and buildings which the landlords may from time to time require for building mining roadmaking or any purpose connected therewith or for any other purpose (not being the use of the land for agriculture) upon giving to the tenant not less than forty-two days previous notice in writing of such requirement and allowing to the tenant fair and reasonable compensation".
Turning now to Section 23(1) (b) of the Act. It says, in effect, that an agricultural holding can be determined by less than twelve months notice if it is…. "a notice given in pursuance of a provision in the contract of tenancy authorising the resumption of possession of the holding or some part thereof for some specified purpose other than the use of the land for agriculture."
The Lands Tribunal (Sir Michael Rove) rejects the owner's contention. He simply said: "I do not think that either claimant can rely on the terms of his re-entry clause". Mr. Glover, for the owners, Mr. and Mrs. Foottit, says they can. He says that the reservation clause brings into operation Section 23(1) (b) of the Statute: whereas, Mr. Newsom, for the Board, emphasises the words in the reservation clause: "which the landlords may from time to time require". He says the landlords have not required this at all: and that it is only the Water Board who require it. This is a nice point of construction. On the whole, I think the owners are right, I cannot think that, in order to operate the clause, it was necessary for Mr. Foottit and his wife themselves to have to dothe building, mining or roadmaking. It was intended that the clause should operate to the full extent of Section 23(1)(b). It applies if the land is being resumed for a purpose other than agriculture, namely, for a reservoir. I think the owner is right. The compensation is to be assessed on the basis that the landlord could resume possession on the six weeks' notice. So in the Shaw-Fox case, compensation is to be awarded on the footing that the tenant can be got out on twelve months' notice; and in the Foottit case on the footing that the tenant can be got out at six weeks' notice. I would, therefore, dismiss the appeal, but allow the cross-appeal.
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