Rutherford v Maurer
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER |
| Judgment Date | 24 April 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0424-1 |
| Date | 24 April 1961 |
| Court | Court of Appeal |
[1961] EWCA Civ J0424-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod
Lord Justice Willmer and
Lord Justice Danckwerts
Mr. PATRICK GARLAND (instructed by Messrs. Curwen, Carter & Evans, agents for Messrs. Montague Williams & Piper, Hurstpier-point, Sussex) appeared on behalf of the Defendant (Appellant).
Mr. S.L. NEWCOMBE (instructed by Messrs. Ralph Bond & Rutherford) appeared on behalf of the Plaintiffs (Respondents).
(As revised)
LORD JUSTICE OMEROD: This is an appeal by the Defendant against a decision of His Honour Judge Harold Brown given at Haywards Heath County Court on the 6th December, 1960, and the circumstances under which the case arose are as follows: the Appellant, Mrs. Maurer, was the proprietor of a riding school at Hassocks, and the Respondents are the executors of the owner of the land adjoining the riding school, a Mrs. Banbury, who died prior to the hearing of this action. The field in question is a five-acre field which was used by the proprietor of the riding school, Mrs. Maurer, as grazing land for some of the horses used in connection with the school.
It would appear that the land in question was let to a farmer of the name of Pesterfield, and the arrangement entered into in 1958 between the Appellant and Pesterfield was that she should have the right to graze in this field. In 1959 it came to her knowledge that Pesterfield was contemplating retirement and so she went to see Mrs. Banbury, and as a result of that interview two documents were prepared. They were similar documents; one was written out by Mrs. Banbury and signed by Mrs. Maurer, and the other was written out by Mrs. Maurer and signed by Mrs. Banbury. There is no difference between the two documents other than the handwriting and the respective signatures on the documents, but the one which has been used by the learned County Court Judge, I think properly, for that hearing, and the one which it is proposed should be used in this appeal is the one in the handwriting of Mrs. Banbury and accordingly signed by the Appellant. Although we have a separate copy of it I will read it from the transcript which has been given to us of the learned Judge's judgment. This is how it goes: "£6 for six months - February 18th, 1959. Let to Mrs. Maurer for grazing for six months periods - must not be used for riding or any other purposes - fences to be kept in order and a fence from your field so that the horses cannot put their heads over and eat the hedges or anything else which they do in my garden. No subletting without my permission."
Mr. Newcombe has remarked in the course of his argument that this was a document which was not drawn up by legal advisers, it was drawn up by the parties themselves, and having read the document that fact, I think, becomes abundantly clear. However, there it is, and it is a document upon which some controversy has turned in this appeal.
It transpired that, shortly after, Mr. Pesterfield gave up the tenancy of the farm, and from that time onwards objection was made by the Respondents to the use of this land by Mrs. Maurer for the purpose of grazing her horses. The basis upon which this objection was made was the Agricultural Holdings Act, 1948, because the Appellant contended that, as a result of the provisions of sections 1 and 2 of that Act, and the definition section, she was entitled, on the one hand, to remain in possession because no proper notice had ever been given to her, and, on the other hand, the Respondents were contending that because of the nature of the document it was not one which came within the proviso in sub-section (1) of section 2 of that Act, and, in those circumstances, the Agricultural Holdings Act, 1948, did not apply.
It is essential, I think, at this stage that I should read the statutory provisions in question, and Section 1, sub-section (1) of the Agricultural Holdings Act, 1948, reads as follows: "In this Act the expression 'agricultural holding' means the aggregate of the agricultural land comprised in a contract of tenancy, not being a contract under which the said land is let to the tenant during his continuance in any office, appointment or employment held under the landlord".
Section 1, subsection (2) reads as follows: "For the purposes off this and the next following section, the expression 'Agricultural Law' means law used for agriculture which is so used for the purposes of a trade or business and includes" etc, which I think is not relevant.
Section 2, subsection (1) is as follows: "Subject to the provisions of this section, where under an agreement made on or after the first day of March, Nineteen hundred and forty-eight, any land is let to a person for use as agricultural land for an interest less than a tenancy 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 the 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."
There is then a proviso to that subsection and it is on the construction of that proviso that a good deal has turned in this case: "Provided that this subsection shall not have effect in relation to an agreement for the letting of land, or the granting of a licence to occupy land, made (whether or not the agreement expressly so provides) in contemplation of the use of the land only for grazing or mowing during some specified period of the year, or to an agreement for the letting of land, or the granting of a licence to occupy land, by a person whose interest in the land is less than a tenancy from year to year and has not by virtue of this section taken effect as such a tenancy".
The learned County Court Judge has accepted the contention of the Respondents in this case, who were the Plaintiffs in the court below, that subsection (2) to section 1 cannot apply in this case because the trade or business referred to there was an agricultural trade or business. That has been upheld by the learned County Court Judge and it is that against which Mr. Garland is appealing to-day. There is also a cross-notice by the Respondents to the effect that the learned County Court Judge should have included in his reasons for finding as he did, the finding that this case came within the proviso to subsection 1 of section 2, whereas in fact the learned County Court Judge came to the opposite conclusion.
I think before I read the relevant parts of the judgment of the learned County Court Judge it would be as well if I referred shortly to the parts of the interpretation section, that is to say Section 94, subsection (1), to which we have been referred by Counsel. The relevant definition which we have to consider, I think, is the definition of 'agriculture' and it is provided by Section 94 (1) of the Act: "Agriculture' includes horticulture, fruit growing, seed growing, dairy farming and livestock breeding and keeping" – and these are the important words – "the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes, and 'agricultural' shall be construed accordingly".
And then in regard to this case – Mr. Newcombe has included it as part of his argument – towards the end of the definition subsection we get the definition of 'livestock';: "Livestock' includes any creature kept for the production of food, wool, skins or furs, or for the purpose of its use in the farming of land, or the carrying on in relation to land of any agricultural activity."
To deal first of all with the two conclusions to which the learned Judge came, with the first one of which I certainly do not agree, it was contended before the learned County Court Judge that subsection (2) of Section 1 of the Act applied.
There is no doubt that this land was used for agriculture in some way or other, because it was land which was used for grazing. The point is: was it land which was used for the purposes of a trade or business? The learned Judge has found that phrase to have a narrower meaning than appears on the face of it, and the contention of Mr. Garland, on behalf of the Appellant, is that 'trade or business' means what it says, and does not mean an agricultural trade or business.
The learned Judge, in his judgment, said this on page 7 of the transcript: "This is an agreement for grazing only. It is within the definition of 'agriculture' in Section 94 of the Act. Does it come within Section 1 (2) as being 'land used for agriculture which is so used for the purposes of a trade or business'? Undoubtedly the conduct of a riding school is a trade or business. The issue between the parties is whether the trade or business must be an agricultural trade or business." That, I think, puts quite succinctly the matter which has been in dispute between the parties in this appeal.
"My attention has been drawn to In re Joel's Lease. 1930, 2, Chancery Division, page 359, Dunn v. Fidoe, 1950, 2, All England Law Reports, page 685, Howkins v. Jardine, 1951, King's Bench Division, page 614, and Monson v. Bound. 1954, 1, Weekly Law Reports, page 1321. In Howkins v. Jardine Lord Justice Jenkins referred to Section 1 (2) and to the purposes of 'An agricultural trade or business'. Quite apart from such...
To continue reading
Request your trial
- Hemens v Whitsbury Farm and Stud Ltd
-
Manus O'donnell V. Graham Mcdonald
...and hay cropping were carried on to facilitate the business. The lease accordingly was not an agricultural one. 4. Rutherford v Maurer 1962 1QB 16. This was a decision of the English Court of Appeal. In that case the owner of a five acre field agreed with the defendant, the proprietor of a ......
-
Carolann Curran V. Angus Estates Tealing Limited
...her lease must be an agricultural lease. She raises the questions whether the decision of the Court of Appeal in Rutherford v Maurer ([1962] 1 QB 16) applied in her case; whether the Land Court "confused" her application regarding the right to buy; and whether it erred in law by not allowin......
-
Graham Mcdonald - In The Appeal From The Sheriffdom Of South Strathclyde, Dumfries And Galloway At Airdrie V. Manus O'donnell
..."trade or business" (s 1(2), supra) of a riding school. On both of these points, the sheriff based his decision on Rutherford v Maurer ([1962] 1 QB 16), which was followed in Scotland in Crawford v Dun (1981 SLT (Sh Ct) 66). These are in essence the submissions for the appellant. [10] In fi......
-
Agricultural Holdings Act 1986 Tenancies
...the year and limit the use of the land to grazing and/or 1 1986 Act, section 96(1). 2 1986 Act, section 96(1). 3 Rutherford v Maurer [1961] 2 All ER 775. 4 Howkins v Jardine [1951] 1 All ER 320. mowing only. Any new arrangements which grant exclusive possession will now be FBTs under the 19......
-
Table of Cases
...Sp C 47 142 Rogan v Woodfield Building Services Ltd (1995) 27 HLR 78, [1995] 1 EGLR 72, [1995] 20 EG 132, CA 36 Rutherford v Maurer [1962] 1 QB 16, [1961] 3 WLR 5, [1961] 2 All ER 775, CA 52 Short v Greeves [1988] 08 EG 109, CA 79 Spath Holme Ltd v Greater Manchester and Lancashire Rent Ass......