Taylor v Lancashire County Council and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stanley Burnton |
| Judgment Date | 07 April 2004 |
| Neutral Citation | [2004] EWHC 776 (QB) |
| Date | 07 April 2004 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQO3X01637 |
[2004] EWHC 776 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Stanley Burnton
Case No: HQO3X01637
Paul Morgan QC and Jane Mulcahy (instructed by the County Secretary and Solicitor) for the Claimant
Joanne Moss and Hugh Mercer (instructed by Napthens) for the Defendant
Philip Sales and Paul Harris (instructed by DEFRA Legal Department) for the Intervenor
Hearing dates: 30–31 March, 1 April 2004
Mr Justice Stanley Burnton
Introduction
In these proceedings the Claimant seeks possession of Pollards Farm near Preston in Lancashire, an agricultural holding of which it is the freehold owner and which is occupied by the Defendant. His defence raises a number of issues as to the compatibility of the Agricultural Holdings Act 1986 ("the 1986 Act") and subordinate legislation made under it with the European Convention on Human Rights, and the effect of the Human Rights Act 1998 ("the 1998 Act") on acts of public authorities before it came into force. The issues concern, in particular, the provisions of the 1986 Act and subordinate legislation relating to a claim by a landlord for possession of a agricultural holding on the ground that the tenant failed to comply with a statutory notice requiring him to remedy a breach of his tenancy agreement otherwise than by doing work of repair, maintenance or replacement.
In summary, the Defendant contends that the applicable provisions of the 1986 Act are incompatible with the Convention, and that as a result the acts of the Claimant to terminate his tenancy were of no legal effect.
The Defendant's contentions as to the incompatibility of the 1986 Act and subordinate legislation led to the intervention of the Secretary of State for Environment, Food and Rural Affairs. A declaration of incompatibility is sought by the Defendant.
If the Defendant's arguments under the 1998 Act fail, the Claimant is entitled to possession.
The facts
The relevant facts are not in dispute and may be shortly stated. The Claimant ("the County Council") is a smallholdings authority within Part III of the Agriculture Act 1970 and the freehold owner of Pollards Farm. The Defendant was (on the County Council's case: on his case he still is) the tenant of Pollards Farm, which is a smallholding within the meaning of that Act.
Mr Taylor and his wife live in a house on the holding. He carries on a business of processing and retailing milk and fruit juices on the holding, and has done so for some considerable time. It is that business that led to the County Council seeking possession of the holding.
Pollards Farm was originally let by the County Council to the Defendant, to whom I shall refer as Mr Taylor, by a written agreement dated 19 October 1962 on, essentially, a tenancy from year to year. The area of Pollards Farm has changed from time to time and the changes have been the subject of further written agreements (made in 1982 and 1985).
Mr Taylor's tenancy came within the Agricultural Holdings Act 1948 and, more recently, the1986 Act. By clauses 4(13), 4(20) and 4(21) of his tenancy agreement he agreed to use the holding primarily as a dairy and mixed holding, not to engage in any trade or business other than agriculture, and not to use the holding otherwise than for agriculture.
In February 1990, the County Council alleged that Mr Taylor was committing breaches of his tenancy by bringing on to the holding, processing and retailing milk and fruit juices that had not been produced on the holding. It required him to terminate his breaches. On 4 May 1990, the County Council served on him a notice to remedy his breaches of the tenancy within 8 months. It was in the prescribed Form 3 served pursuant to Case D in Part I of Schedule 3 to the 1986 Act, not being a notice requiring him to do any work of repair, maintenance or replacement.
In May 1990, a Mr Mair, a land agent acting for Mr Taylor, sought advice from a Mr Densham of solicitors Burges Salmon. Mr Densham advised by letter dated 4 June 1990 that the activities complained of by the County Council were not a breach of the tenancy agreement. However, he pointed out that the issue as to whether Mr Taylor was in breach could not be referred to arbitration following the notice to remedy. He advised that Mr Taylor should not run the risk of taking no action, but instead should immediately apply to the Court for a declaration that he was not in breach of the tenancy agreement.
In the event, Mr Taylor did not bring proceedings for a declaration. He continued to carry on the business complained of by the County Council. On 13 January 1994, the County Council served a further notice to remedy giving Mr Taylor 12 months to terminate his breaches. On 27 October 1994, it served a third notice to remedy specifying a period of 3 months for remedy. On 2 November 1994, the County Council gave Mr Taylor a fourth notice to remedy giving Mr Taylor 12 months to remedy the breaches.
The County Council served notices to quit based on each of its 1994 notices to remedy. The last was served on 16 January 1996, based on the last notice to remedy, to take effect on 2 February 1997.
Mr Taylor applied for statutory arbitration under the 1986 Act in relation to each of the notices to quit. An Arbitrator was duly appointed. Mr Taylor contended, among other things, that the Council had agreed to his activities that they alleged were breaches of his tenancy and were estopped from relying on them to terminate his tenancy. The Arbitrator's award dated 10 March 1998 determined that the last notice to remedy was valid (but that the earlier notices were not), that Mr Taylor was in breach of the terms of his tenancy, that he had failed to remedy his breaches within the time given by the last notice to remedy, and that the ground stated in the last Notice to Quit was validly stated, with the result that it should take effect.
Mr Taylor unsuccessfully challenged the Award in the County Court. HH Judge Gee gave judgment on 10 September 1999 dismissing his claims. Mr Taylor appealed to the Court of Appeal. He did not allege any breach of his Convention rights. His appeal was heard after the 1998 Act came into force on 2 October 2000 and was dismissed on 9 February 2001. On 25 July 2001, the House of Lords dismissed Mr Taylor's petition for leave to appeal from the decision of the Court of Appeal.
In January 2000, the County Council began the present proceedings for possession of the holding. It alleged that, as determined by the arbitrator, it had served a valid Notice to Quit on Mr Taylor terminating his tenancy. Mr Taylor defended the possession proceedings on two separate grounds.
The first concerned the powers of the Arbitrator to postpone the operation of the Notice to Quit. This defence, if successful, would merely have postponed the County Council's right to possession until a date that has now passed. It is therefore academic. It has been agreed between the County Council and Mr Taylor that this defence need no longer be addressed.
The second ground raises the issues I have to decide under the 1998 Act.
The Agricultural Holdings Legislation
There had been legislation conferring a measure of security of tenure for tenant farmers before the Second World War, but for present purposes it is sufficient to begin with the Agricultural Holdings Act 1948, which consolidated provisions of the Agriculture Act 1947 and earlier legislation. Those Acts were passed at a time of general food shortages, and it is evident from their provisions that their general object was to encourage good husbandry and thereby to increase food production and, by granting substantial security of tenure (among other measures), to enable tenant farmers to take a longer-term approach to investment in their farming businesses. The 1948 Act specified the circumstances in which the landlord of an agricultural holding could terminate a tenancy of the holding. These included the failure by the tenant to comply with a notice served by his landlord requiring him to remedy a remediable breach by the tenant of the terms of his tenancy, provided that the term in question was not inconsistent with the fulfilment by the tenant of his responsibilities to farm in accordance with the rules of good husbandry. No distinction was made in the 1948 Act between a breach the remedy of which involved the carrying out of work and other remediable breaches.
The 1948 Act was amended by the Agriculture (Miscellaneous Provisions) Act 1963. It introduced the distinction between a statutory notice given by a landlord to the tenant of a holding requiring him to do "any work of repair, maintenance or replacement" in order to remedy a breach of his tenancy agreement and a notice to remedy which did not contain that requirement. Section 19 conferred power on the Lord Chancellor by order to provide for the determination of any question arising under the first kind of notice. He was also empowered to provide for the extension of the time stipulated by any statutory notice to remedy a breach.
Mr Christopher Soames MP, Minister of Agriculture, Fisheries and Food, presenter of the Bill, said on 21 November 1962 in the House of Commons:
"Clause 17 will help a tenant to know where he stands with any alleged breach of his tenancy agreement which might form the basis for a notice to quit. The broad effect is to prevent a landlord from exploiting loopholes in the present legislation and thus using it, not for its intended purpose of getting repairs done, but as a means of bringing about the eviction of his tenant. The...
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