The Honourable Ivor Edward Other Windsor-Clive, Earl of Plymouth v Jenkin Thomas Rees
| Jurisdiction | England & Wales |
| Judge | Keyser |
| Judgment Date | 18 April 2019 |
| Neutral Citation | [2019] EWHC 1008 (Ch) |
| Docket Number | Case No: C30CF095 |
| Court | Chancery Division |
| Date | 18 April 2019 |
[2019] EWHC 1008 (Ch)
HIS HONOUR JUDGE Keyser Q.C.
sitting as a Judge of the High Court
Case No: C30CF095
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Cardiff Civil Justice Centre
2 Park Street, Cardiff, CF10 1ET
Christopher McNall (instructed by Burges Salmon LLP) for the Claimants
Stephen Jourdan Q.C. (instructed by Michelmores LLP) for the Defendants
Hearing date: 3 April 2019
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 Keyser Q.C.
JUDGE Keyser QC:
Introduction
The claimants, as trustees of The St Fagans No. 1 and No. 2 Trusts, are the registered proprietors of land comprising Maesllech Farm, Radyr, Cardiff (“the Farm”). The first defendant is the tenant of the Farm, which he farms in partnership with his son, the second defendant. By this Part 8 claim, commenced on 22 September 2016, the claimants seek a permanent injunction restraining the defendants from interfering with their exercise of certain rights of access to the Farm.
On 29 September 2016 His Honour Judge Jarman QC, sitting as a Judge of the High Court, granted an interim injunction restraining the defendants from interfering with the exercise of the claimed rights of access until trial or further order. For reasons that need not be stated here, the proceedings went into abeyance thereafter; the interim injunction remained in place but no steps were taken to progress the matter to trial. Eventually, on 3 January 2019 the case came before me on an application by the defendants. I continued the interim injunction until trial and gave directions for this hearing.
The evidence adduced in support of the claim comprised an affidavit dated 26 September 2016 from Roderick Carew Perons, a director of Cooke & Arkwright and land agent for the claimants, and two statements from him dated respectively 21 September 2016 and 22 February 2019. The evidence in response consisted of one statement by each defendant, both dated 25 January 2019. There was no direction for oral evidence from the witnesses and none was received. I have regard to all of the written evidence, but I do not consider it necessary to recite in this judgment all the matters it covers.
For convenient ease of reference, and without meaning to indicate any disrespect, I shall from now on refer to the first defendant as Jenkin and to the second defendant as Phillip.
I am grateful to Mr McNall, counsel for the claimants, and Mr Jourdan QC, counsel for the defendants, for their helpful submissions.
The Farm and the Lettings
The Farm comprises a total of about 240 acres of mainly arable land. The buildings on the Farm include a farmhouse and two cottages. Jenkin lives in the farmhouse with his wife. Phillip's home has been in one of the cottages, although he is currently living in the farmhouse with his parents because, he says, the cottage is uninhabitable owing to the claimants' failure to repair it. The other cottage is currently vacant.
The Farm is on the western outskirts of Cardiff. It lies close to, and to the south of, the suburb of Radyr, adjacent to Llantrisant Road, which is the main local route into and out of Cardiff. Radyr was a developed settlement long before the 1960s, although of course it has undergone expansion in more recent years. A little way to the east of the Farm lies the settlement of Llandaff North, and to the south- east lies Llandaff; these also pre-date the 1960s. Fairwater lies to the south/south- east; although much expanded latterly, it was an established settlement in the 1960s. The land to the west of the Farm has remained largely undeveloped green field land.
In the Cardiff local development plan 2006–2026, the Farm was identified as a strategic site for development. It is now intended to be part of the site of the new Plasdwr “garden city”. On 24 September 2014 two applications for outline planning permission were made to the local planning authority in respect of a larger area of land that included the Farm. One application (“the First Application”) was for 630 dwellings, a primary school, a community centre, public open spaces, vehicular and pedestrian access, drainage and associated infrastructure and engineering works. The other application (“the Second Application”) was for residential-led mixed-use phased development involving several thousand dwellings. The dispute between the parties arises out of the plans for development of the Farm pursuant to these planning applications.
Although the land at the Farm is farmed as a single agricultural unit, different parts of it were let separately by agreements made between Earl of Plymouth Estates, the claimants' predecessor, and Jenkin.
First, by a written agreement dated 8 January 1965 (“the 1965 Tenancy Agreement”), 187.568 acres or thereabouts (“the 1965 Land”) were demised to Jenkin on a yearly tenancy commencing on 2 February 1964 at an initial rent of £1,496 p.a.
Second, according to Jenkin's evidence, shortly after the making of the 1965 Tenancy Agreement, sometime in 1966 or 1967, he made an oral agreement (“the Oral Tenancy Agreement”) with the agent of Earl of Plymouth Estates, for a tenancy of an additional 3.5 acres of land (“the Additional Land”) comprising two small areas adjacent to but slightly separated from each other; the larger area was to the north and was not contiguous to the 1965 Land; the smaller area was directly opposite the larger area and was contiguous to the 1965 Land. Jenkin says that it was never suggested that the letting of the Additional Land was to be treated as an addition to the 1965 Tenancy Agreement or the 1965 Land; it remained subject of a separate agreement that was never reduced to writing. On 7 February 2017, after the commencement of the present dispute, Jenkin executed an assignment of the Additional Land to JBG Rees Ltd, a non-trading company of which he, his wife and Phillip are the directors. He and Phillip continue to farm the Additional Land as part of the Farm. The claimants do not accept that the Additional Land constitutes a separate demise; they say that it has always been treated and invoiced as part of the demise under the 1965 Tenancy Agreement.
Third, by a written agreement dated 20 March 1968 (“the 1968 Tenancy Agreement”), a further 51.439 acres or thereabouts (“the 1968 Land”) were demised to Jenkin on a yearly tenancy from 1 October 1967 at an initial rent of £350 p.a.
The 1965 Tenancy Agreement
The 1965 Tenancy Agreement contained the following five clauses under the heading “RESERVATIONS BY THE LANDLORD”; clause 7 is particularly relevant to this claim:
“3. All mines minerals substances of every description stones flints chalk gravel sand peat earth and clay whatsoever in upon or under the premises with full and free liberty and power (including power and right to let down the surface without compensation) to enter upon the farm or authorise others to enter upon the farm in order to search for win dress make merchantable and carry away the same and to execute all work incidental thereto doing as little damage as the nature of the case may admit making the Tenant reasonable compensation for loss of crops (if any) for the current year and allowing the Tenant a proportionate reduction in rent for all land so permanently taken or damaged.
4. All timber and other trees pollards heirs saplings underwoods and woodlands with right of entry for himself and others authorised by him to plant mark fell cut and carry away the same over any part of the holding or lands hereby demised making the Tenant reasonable compensation for any loss or damage sustained thereby any claim for loss or damage to be rendered within two calendar months of the date of the occurrence of such damage.
5. Subject to the provisions of the Ground Game Acts of 1880 and 1906 all game ground or otherwise (including nests and eggs) fish wild fowl snipe landrail and plover together with a right for the Landlord and all persons authorised by him to preserve hunt shoot fish course and sport and the Tenant undertakes to assist in the preservation of game and the prosecution of poachers on the premises.
6. Power to take possession at any time of any portion of the holding (except house buildings or gardens) for building development or any purpose mentioned in Section 31 of the Agricultural Holdings Act 1948 on giving the Tenant three months' notice in writing paying the Tenant compensation for his interest therein and allowing a proportionate reduction in the rent of the Farm.
7. Right for the Landlord and his Consultant and all others authorised by him with or without horses carriages and other vehicles to enter on any part of the Farm lands and premises at all reasonable times for all reasonable purposes.”
Clauses 8 and 9 contained covenants by the landlord to repair the structure and exterior of the farmhouse and farm buildings. Clause 15 contained a covenant by the tenant against assignment or subletting of the premises or any part thereof without the landlord's written consent. Clause 17 contained a covenant by the tenant to maintain and repair fences, gates, roads, walls, hedges and so forth. I do not need to refer to the other extensive provisions.
The 1968 Tenancy Agreement
The 1968 Tenancy Agreement was a much shorter document. It contained a landlord's covenant for quiet enjoyment and tenant's covenants to keep the land in proper order...
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