Watts v Yeend
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KERR,MR. JUSTICE SWINTON THOMAS |
| Judgment Date | 25 November 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J1125-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 86/1052 |
| Date | 25 November 1986 |
[1986] EWCA Civ J1125-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRISTOL
COUNTY COURT
(HIS HONOUR JUDGE SIR IAN LEWIS)
Royal Courts of Justice
Lord Justice Kerr
and
Mr. Justice Swinton Thomas
86/1052
Plaint No. 83/16718
and
MR. MARK WEST (instructed by Messrs. Robbins Olivey & Blake Lapthorn, Solicitors, London WC2R 1AU, Agents for Messrs. Blakemores, Solicitors, Tetbury, Gloucestershire GL8 8AB) appeared on behalf of the Defendant (Appellant)
MR. COLIN SARA (instructed by Messrs. Kirby Simcox, Solicitors, Bristol BS1 4AF) appeared on behalf of the Plaintiffs (Respondents)
This is an appeal by the defendant from an judgment given by His Honour Judge Sir Ian Lewis QC at the Bristol County Court on 18th September 1985. The plaintiffs are the personal representatives of the estate of Violet Elizabeth Ann (to whom I shall refer as "Mrs Ann"). The defendant, Mr. Brian C. Yeend, is a farmer in the same locality.
Mrs. Ann died on 18th October 1982. She had been the owner of a house and a number of fields at Rockhampton Green, Rockhampton, Berkeley, in the county of Avon. The dispute is the familiar one, as to whether an agreement or arrangement between a landowner and a local farmer in relation to some fields was for a grazing licence or a tenancy protected by the Agricultural Holdings Act.
An agreed plan shows that apart from her house and a driveway, Mrs. Ann owned an adjoining orchard with some derelict farm buildings and four fields, one of which was a large one adjoining the orchard and the house, and the other three all separate. The Ordnance Survey number of the orchard was 116 and the numbers of the fields were 117, 126, 184 and 187. It is common ground that Mr. Yeend had some use of those fields, the issue being whether he merely had a grazing licence or a tenancy.
The particulars of claim plead as follows in paragraph 3:
"At the date of her death (Mrs. Ann) had permitted the Defendant to take the grass keep from" the four fields to which I have referred "during a specified part of the year pursuant to the proviso to section 2 of the Agricultural Holdings Act 1948. The Licence so to take the grass keep was terminated upon the death of the deceased, or, alternatively, at the end of the period of the Licence then current, and has not since been renewed".
Asked for particulars of that agreement, the plaintiffs said that the agreement had been made orally, and then I read from the further and better particulars:
"The Plaintiffs have no knowledge of the oral words used by either the Deceased or the Defendant nor when such agreement was made. The Plaintiffs rely on the fact that the Deceased considered there was an agreement for the sale of the grass keep for a specified portion of the year as evidenced by the Deceased's return to the Ministry of Agriculture in 1979 when the Deceased stated, in writing, that 5 hectares of land was let seasonally in 1979 to another person for cropping, haymaking or grazing".
The five hectares referred to the area of the four fields, and there was an additional 0.1 hectare referred to in some of these returns which related to the orchard. The acreage of the area is about 12 1/2.
The amended defence and counterclaim pleaded in substance as follows; I refer to paragraph 4:
"By an oral agreement made between the Defendant and the deceased in or about"—it was originally December 1970, and that was amended to the Spring of 1968; nothing turns on the fact that there was a second thought about the date—"granted to the Defendant the exclusive occupation of approximately 12.5 acres of agricultural land, together with the use of certain buildings and a yard adjacent thereto, all situate at Rockhampton Green" and so forth, "at an annual rent of"—it was originally £100, but that has been amended to £60—"payable half-yearly in advance on 1st December and 1st June in each year".
Then particulars are given of the agricultural land, buildings and yard with reference to the ordnance survey numbers, including the orchard and the farm buildings in it. The reference to the yard is to the area surrounded by those buildings.
The defence gives lengthy particulars of what the defendant claims to have done on the land to make good his claim that he was a tenant. There was then a counterclaim for one of two alternative declarations. The first was that he had a tenancy of the land and buildings. The alternative declaration claimed was that he had a licence in respect of the land and buildings which took effect as a tenancy from year to year pursuant to the provisions of section 2 of the Act, and a declaration that this was a protected tenancy.
The defendant farmed other land in partnership with his father who also gave evidence and played a part in the history. He also rented some other land, and had a normal, formal written tenancy agreement concerning that other land. But, as can be seen from what I have already mentioned, it is common ground that the agreement with which this appeal is concerned was informal, oral and was never referred to in any document which passed between the parties during the 14 years or so from 1968 to 1982, when it is common ground that it was in existence.
It is also common ground, I think, that the originally required annual payment was £60; it then rose to £100, and in about 1976 (although nothing turns on the date) it went up to £150. It was payable in two instalments, one on 1st July, as the defendant says, and one in December. Whatever the arrangement between Mrs. Ann and Mr. Yeend was, it is also clear from some earlier documents which have survived that it followed on from another yearly arrangement which she had, in that case certainly limited to the taking of the grass, with a firm called Sandoe Luce Panes & Johns. That was on any view of a different nature. They had the right to take and dispose of the grass each year, I think from 1966 to 1968, but on the basis that if they took it by mowing, as appears to have been the position throughout, they would then advertise and sell it and charge Mrs. Ann with the expenses and a commission. Both sides have sought to draw attention to the difference between that arrangement and the one with Mr. Yeend, which was certainly concerned with his actually making use of the land. But the judge clearly felt unable to draw any conclusion as to the reasons why different arrangements were made. I am in exactly the same position. It seems to me that no conclusion can be drawn as to whether, in making a change, Mrs. Ann wanted to create a tenancy or merely what I have referred to as a grazing licence. It should be mentioned that she and the Yeend family were originally close friends; in particular she was friendly with Mr. Yeend's mother, and also with his father. But there was then some falling out because Mrs. Ann had not been invited to the christening of a child of the family. That again is not something on which I can base any inference, let alone conclusion; and nor did the judge. That is the background.
I should say at once that the judge, having heard witnesses on both sides for a considerable time, came to the clear conclusion that the right which Mr. Yeend had was limited to a grazing licence which, although he does not mention the point expressly, in his view obviously fell within the proviso of section 2(1) of the Agricultural Holdings Act 1948. He reached the conclusion on a number of grounds, to which I shall be referring.
First I must read the section:
"Subject to the provisions of this section, where under an agreement made on or after the first day of March, (1948), 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….. 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".
That states the general position that the grant of an interest less than a tenancy from year to year, or for a licence in relation to agricultural land, will take effect as an agreement for the letting of the land for a tenancy from year to year; and that of course has the effect that it enjoys the protection of the Act and other statutory provisions in a number of respects.
There then follows the important proviso, and it is on this that most of the cases have turned:
"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".
Before I come to the evidence, I should deal with two points of law which, as Mr. West submitted, show that the judge had approached the matter on an erroneous basis. Unlike Mr. Sara who represents the plaintiffs, Mr. West did not appear below. In connection with Mr. West's submissions it should also be noted that this is a very experienced judge sitting habitually in that part of the country, and that the problem raised by this case is not at all an unfamiliar one in that county court and,...
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Alexander Bishop Loudon V. James Hamilton And Others Against An Order Of The Scottish Land Court
...a season was held to be a sufficient specification that the let was to be for a period of less than a year. Similarly, in Watts v Yeend ([1987] 1 WLR 323) the evidence failed to establish that the parties had agreed on any exact number of days for which the let was to run; but it did establ......