Well Barn Farming Ltd v Backhouse and Another
| Jurisdiction | England & Wales |
| Judgment Date | 14 July 2005 |
| Neutral Citation | [2005] EWHC 1520 (Ch) |
| Date | 14 July 2005 |
| Court | Chancery Division |
| Docket Number | Case No: HC04C01914 |
[2005] EWHC 1520 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
Mr P Morgan QC
(Sitting as Deputy Judge of the Chancery Division)
Case No: HC04C01914
Zia Bhaloo (instructed by Bircham Dyson Bell) for the Claimant
G.B. Purves (instructed by NC Brothers & Co) for the Defendant
Hearing dates: 21st—24th June 2005
THE DEPUTY JUDGE
THE CLAIM
This claim concerns some 1.10 acres of agricultural land which is shown edged blue on the plan annexed to the Particulars of Claim. The land in question was at one time known as the Old Farm Site but more recently has been known as Pump House Copse. It seems that in the 1980s and until September 1991, the land was overgrown with trees and bushes and was not suitable for agricultural use. In around September 1991, the land was cleared or "grubbed out" as the witnesses described it and since that date the land has been used by the Defendants for agricultural purposes.
The freehold of Pump House Copse has been vested in the Claimant since around 2000. Before the Claimant acquired the freehold, Pump House Copse was being farmed by the Defendants and they continued to farm it save, possibly, for a period in 2002 and 2003.
On the 10th June 2004, the Claimant issued the present proceedings against the Defendants. The only relief claimed is a declaration that the Defendants did not hold a tenancy over the Pump House Copse land. The Particulars of Claim did not put forward any explanation as to the basis on which the Defendants were in occupation of Pump House Copse before the Claimant acquired it in 2000 nor as to the basis on which the Defendants remained in Pump House Copse after 2000.
The Defendants' Defence, as originally served, asserted a tenancy of Pump House Copse pursuant to an express agreement with a predecessor in title of the Claimant. The agreement was said to have been made in or about 1990. The Defendants also relied upon a later Rent Memorandum of 6th December 1996 which they entered into with a different predecessor in title of the Claimant. Further, the Defendants asserted that if they did not have an express tenancy of the land they had at least a contractual licence of the land which was upgraded into a tenancy from year to year by virtue of section 2 of the Agricultural Holdings Act 1986. The Defendants also alleged various estoppels said to bind the Claimant.
In its Reply, the Claimant did put forward a positive case as to the basis on which the Defendants occupied Pump House Copse. The Claimant contended that a predecessor in title of the Claimant had permitted the Defendants to occupy Pump House Copse in the early 1990s but that permission was for no consideration and was therefore a gratuitous licence which was not upgraded by section 2 of the 1986 Act.
In her Skeleton Argument prepared in advance of the trial, Miss Bhaloo, who appeared on behalf of the Claimant, identified her principal case as one based on the contention that the Defendants had only a gratuitous licence to occupy Pump House Copse and therefore did not have a tenancy of that land within the Agricultural Holdings Act 1986, or at all.
In the Skeleton Argument prepared by Mr Purves who appeared on behalf of the Defendants, Mr Purves addressed the allegation that the Defendants had only a gratuitous licence. He said, first, that the consideration for whatever permission the Defendants had to occupy the land was in accordance with the evidence contained in Mr Backhouse's Witness Statement. However, he submitted in the alternative that even on the Claimant's own evidence there was consideration for the licence to occupy the land and the arrangement was upgraded into a tenancy under section 2 of the 1986 Act. Before the commencement of the trial, this alternative allegation in Mr Purves' Skeleton Argument was not given any particular prominence.
After all of the evidence in the case was given, Mr Purves applied to me for permission to amend his Defence and I granted that permission. I will refer towards the end of this Judgment to my reasons for so doing. The burden of the Amended Defence was to put forward an alternative case, very much in accordance with what Mr Purves had said in his Skeleton Argument (but which he had not up to that time pleaded) to the effect that even on the Claimant's own evidence there was consideration for the arrangement which was made between the owner of the land and the Defendants and the case came within section 2 of the 1986 Act.
THE PRINCIPAL ISSUES
Having referred to the cases as identified in the pleadings and in the Skeleton Arguments, I can summarise the principal issues as involving, first, an issue as to the nature and legal effect of the original arrangement made between the owner of Pump House Copse and the Defendants, secondly an issue as to the meaning and legal effect of the rent review Memorandum of 6th December 1996 and, thirdly, a possible issue as to the application of section 4(1)(f) of the Agricultural Tenancies Act 1995.
THE FACTS
Whilst there is considerable dispute of fact as to the original arrangement made by the owner of Pump House Copse and the Defendants, much of the factual background to this matter is not in dispute and I can set it out quite shortly.
Pump House Copse is at the edge of an area of agricultural land known as Unhill Bottom. Some 51 or so acres of land at Unhill Bottom were the subject of a written Tenancy Agreement dated 14th April 1980 between the Trustees of the Vandervell Estate and the Defendants. That written Tenancy Agreement did not extend to Pump House Copse.
Pump House Copse has been owned by the owner of the adjoining land known as the Well Barn Estate. That is primarily a shooting estate. Before 1990, it was owned by the Trustees of the Vandervell Estate. The relevant Trustees were a Mr Robins and a Mr Few Brown. Mr Few Brown was a chartered surveyor and a partner in the firm of Howard Son & Gooch which appeared to have merged with Savills in the middle 1980s.
On the 1st February 1990, the title to the Well Barn Estate and the title to Pump House Copse was transferred to a Mr Thomas Greenham. Mr Greenham owned the Well Barn Estate and Pump House Copse until around 1994 when he transferred it to Bilton Agricultural Investments Limited. This company was taken over by Slough Estates plc and sold the Well Barn Estate and Pump House Copse to the Claimant in around 2000. The Claimant has remained the owner of Well Barn Estate and Pump House Copse since that time.
Mr and Mrs Backhouse are farmers. They own the freehold of land in the vicinity of Well Barn Estate and in particular they own an area known as Fullers Firs which adjoins Unhill Bottom. At the material times, Fullers Firs was covered with trees and bushes and other vegetation. Prior to 1990, the Defendants had made agreements from time to time with the owners of the Well Barn Estate to permit those owners to have the shooting rights over Fullers Firs.
The Tenancy Agreement of 14th April 1980 is, as I have stated, between Mr Robins and Mr Few Brown as Trustees of the Vandervell Estate and the Defendants. The demised premises comprise some 51 acres or, more accurately, 50.96 acres of agricultural land. The plan annexed to the Tenancy Agreement is obviously based on the Ordnance Survey Plan. The plan quite clearly shows that Pump House Copse is not included in the tenancy. However, a possible source of confusion is that someone has typed upon the Ordnance Survey sheet the field numbers and acreages of the principal fields on the Well Barn Estate and if one glanced at the plan, the field numbers and the acreages, one might conclude that the land which was let consisted of Field No.0004 and Field No.0048 and that the acreage of the former field was 36.89 acres and the acreage of the latter field was 15.17 acres making a total of 52.06 acres. However, that would be the wrong deduction from looking at the plan because, as I have said, the let land extends only to 50.96 acres and the figure of 15.17 acres includes the 1.10 acres at Pump House Copse, which the plan clearly shows is intended to be outside the tenancy. The plan is also a little unhelpful in that it is not possible to see that Pump House Copse has a separate Field No. namely 8841. I have been shown a larger plan from which the tenancy plan was obviously copied and the larger plan shows that Pump House Copse does indeed have its own Field No. and, further, that the acreage of 15.17 was not just for Field No.0048 but for 0048 together with the word "etc". Armed with the larger clearer plan, the fields which were let and the fields which were excluded and the acreage of the let land and the acreage of the excluded Pump House Copse is quite clear but the plan attached to the Tenancy Agreement could have been, and probably was, a source of confusion.
Clause 3 of the Tenancy Agreement provided that the rent would be £756 per annum. Clause 3 also provided that any agreement by which a new rent for the holding was agreed, unless otherwise specifically stated, was deemed to be made under clause 3 and not to create a fresh Tenancy Agreement. Further, clause 3 contained the following provision:
"Until such time as a fully rabbit proof fence is erected around the entire boundary of the land comprised in this tenancy by the Landlord or the Tenants to the Tenants' full satisfaction the agreed rent per acre at any subsequent rent review shall be applied and the total rent calculated on an area of 42 acres only."
The operation of that provision and the way in which it fitted in with the statutory rent review provisions in the Agricultural Holdings Act 1948 and 1986 was never raised in the history of...
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