The National Trust for Places of Historic Interest or Natural Beauty v William Fleming and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henderson |
| Judgment Date | 17 July 2009 |
| Neutral Citation | [2009] EWHC 1789 (Ch) |
| Court | Chancery Division |
| Date | 17 July 2009 |
| Docket Number | Case No: HC08C03487 |
[2009] EWHC 1789 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Henderson
Case No: HC08C03487
Mr Jonathan Gaunt QC and Mr Wayne Clark (instructed by Morgan Cole) for the Claimant
Mr Tim Cowen (instructed by Burley & Geach) for the Respondents
Hearing date: 9 June 2009
Mr Justice Henderson :
Introduction and background
By this application the claimant, The National Trust for Places of Historic Interest or Natural Beauty (“the National Trust”), seeks the leave of the court under section 69 of the Arbitration Act 1996 to appeal against an interim award (“the Award”) delivered to the parties on 7 November 2008 concerning a dispute about the construction of a caravan site for the housing of migrant farm workers at South End Farm, Donnington, Chichester, West Sussex.
The National Trust is empowered by section 8 of The National Trust Act 1937 to accept and enforce restrictive covenants in respect of any land, notwithstanding that it may not own adjacent land. In exercise of that power, the National Trust entered into a Deed of Covenant dated 5 April 1969 (“the 1966 Deed”) with Mr Arthur Leslie Harris, who lived at the Old Manor House, Donnington, and was the freehold owner of an estate extending to approximately 846.5 acres. The Award records that he wished to protect the land which he owned from the expansion of the towns of Chichester and Bognor Regis into the area south of Chichester, and onto his land in particular. He wanted protection in perpetuity. He sought the agreement of the National Trust, and entered into the 1966 Deed as a result.
South End Farm has an area of about 456 acres (184 hectares) and forms part of the land subject to the 1966 Deed. Since 2005 the freehold of South End Farm has been vested in the trustees of a family trust, the Fleming Trust, and they are the respondents to the application. One of the trustees, Mr Hugh Fleming, was the agricultural tenant of Mr Harris at the date of the 1966 Deed. After the death of Mr Harris in 1990, Mr Hugh Fleming and his son Mr William Fleming purchased the land from Mr Harris' estate.
South End Farm itself is now let by the trustees to a farming partnership carried on by Mr William Fleming and his wife, Mrs Cornelia Fleming. Approximately half of the farm (221 acres, or 89.5 hectares) was sub-let in October 2007 to a company which grows salad crops, Goodend Produce Ltd. This company had been formed by Mr William Fleming and his wife in 1995, and they are its directors. Apart from South End Farm, Goodend Produce Ltd also farms land at Colworth and Boxgrove.
In the 1960s South End Farm was a mixed farm, part arable and part dairy. By the 1990s, however, the dairy farming had ceased and the farm was all arable. Shortly thereafter, the farming operations were changed to the production of salad crops, and (as I have already said) Goodend Produce Ltd was established.
I can now pick up the story from the background section of the Award, none of which is controversial:
“5.9 The land capable of growing such crops is referred to on the Agricultural Land Classification Maps as Grade 1 and Grade 2. Such classification is a small percentage of agricultural land in Sussex and nationally. The particular location has high quality daylight and enjoys a longer growing season than elsewhere in the UK. It is said to be ideal for growing salad crops, field scale vegetables and similar crops. These are grown mostly for national supermarkets.
5.10 Migrant labour is used, so far as South End Farm is concerned, to plant, irrigate and harvest salad crops. The demand for and usage of migrant workers in the Chichester area is high. As a consequence Chichester College provide training courses for migrant workers in this sector of farming.
5.11 The centre of this dispute is at Coopers Barn which is part of South End Farm. Coopers Barn is close to and east of the B2201 road which runs from Chichester to Selsey Bill. It is the site of former farm buildings of which there remains part of a brick and flint barn. On the eastern boundary of the farm buildings is a ditch. An area to the east of this ditch has been taken for siting caravans in addition to the site of the farm buildings. An electricity supply and water supply has been laid on.
5.12 Caravans, washing facilities, waste repository and parking areas occupy an area surrounded by a bund. There is also an amenity area.
5.13 In February and early March 2007, Dr David Chai, who resides to the north of the Coopers Barn site, noticed works were being carried out around Coopers Barn. He met Mr William Fleming who explained that the site was to house seasonal workers. Dr Chai contacted Chichester District Council and the National Trust. No planning permission had been granted for the site but on 7 November 2007 retrospective planning consent was issued by Chichester District Council subject to certain conditions.
5.14 The National Trust, mindful of their responsibilities, wrote to Mr William Fleming on 20 March 2007, requesting that he cease all works at the Coopers Barn site immediately. On 16 April 2007 the National Trust again wrote to William Fleming to the effect that they were of the opinion that the site constituted a breach of the Covenant which the National Trust held over the land. They asked for his proposals to remove the caravans and hard standing within 7 days.
5.15 Mr William Fleming completed the works to the site and migrant workers occupied the caravans and worked at the farm.”
The dispute between the National Trust and the Flemings centres on the true construction of the restrictions in the 1966 Deed, and in particular on the question whether the construction of the caravan site, and its use to house migrant workers, fall within the scope of a proviso (“the Proviso”) which says that
“nothing in the foregoing stipulations shall prevent the cultivation of the said land or any part thereof in the ordinary course of agriculture or husbandry in accordance with the custom of the country.”
The 1966 Deed contains an arbitration clause, and in due course the dispute was submitted for resolution to Mr Edwin Handley, FRICS, MCIArb, FAAV. In January 2008 he gave directions for the exchange of statements of case and witness statements, for disclosure of documents, and for expert evidence. On 2 June 2008 he carried out a site inspection, and then conducted an oral hearing in Chichester at which both sides were represented by counsel. Mr Wayne Clark, instructed by Morgan Cole, appeared for the National Trust, and Mr Timothy Cowen, instructed by Burley & Geach, appeared for the respondents. The arbitrator heard oral evidence on behalf of the National Trust from Mr Mark Knight, who is the Trust's senior rural surveyor. For the respondents, he heard oral evidence of fact from Mr William Fleming, from a local farmer, Mr Gavin Brown, and from Mr David Kay, who is the general manager of a soft fruit farming business which operates in Sussex, Berkshire and Surrey. He also heard expert evidence on behalf of the respondents from Mr Keith Leddington-Hill, who is the managing director of an agricultural consultancy company.
In the Award the arbitrator found that the Flemings were entitled to rely upon the Proviso, with the consequence that there was no breach of any of the restrictions in the 1966 Deed. In the light of that conclusion it was unnecessary for him to resolve the other disputed questions of construction, but he dealt with the main points comparatively briefly and also decided them in the respondents' favour.
Section 69 of the Arbitration Act 1996
An appeal to the court by a party to an arbitration lies only “on a question of law arising out of an award made in the proceedings”: section 69(1). By virtue of subsection (2), an appeal shall not be brought under the section except with the agreement of all the other parties to the proceedings, or with the leave of the court.
Subsections (3) to (5) then provide as follows:
“(3) Leave to appeal shall be given only if the court is satisfied –
(a) that the determination of the question will substantially affect the rights of one or more of the parties,
(b) that the question is one which the tribunal was asked to determine,
(c) that, on the basis of the findings of fact in the award –
(i) the decision of the tribunal on the question is obviously wrong, or
(ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt, and
(d) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question.
(4) An application for leave to appeal under this section shall identify the question of law to be determined and state the ground on which it is alleged that leave to appeal should be granted.
(5) The court shall determine an application for leave to appeal under this section without a hearing unless it appears to the court that a hearing is required.”
It follows from the above provisions that the court only has jurisdiction to grant leave to appeal if it is satisfied, among other matters, that on the basis of the findings of fact in the award the decision of the arbitrator on the question of law identified by the applicant is “obviously wrong”. There is no suggestion in the present case that the question is one of general public importance, in which case the court would only have to be satisfied...
To continue reading
Request your trial