Wetherall v Smith
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,SIR DAVID CAIRNS,LORD JUSTICE ACKNER |
| Judgment Date | 08 February 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0208-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 February 1980 |
[1980] EWCA Civ J0208-2
In The Supreme Court of Judicature
Court of Appeal
On Appeal From The Yeovil County Court
Lord Justice Stephenson
Lord Justice Ackner
Sir David Cairns
MR. R. A. HENDERSON (instructed by Mr. Jeremy Wood, Solicitor, Fielding House, Petters Way, Yeovil, Somerset) appeared on behalf of the Appellants.
MR. P. B. MULEVERER (instructed by Messrs. Porter, Mangnall & Company, Yeovil, Somerset) appeared on behalf of the Respondent.
I will ask Sir David Cairns to do what he did not do in the Hickson & Welch Ltd. v. Cann case and deliver the first judgment.
This is an appeal from a decision of His Honour Judge Willcock given on 21st February 1979 at the Yeovil County Court. It relates to a field or paddock about an acre and a quarter in area which lies near to a rectory and was part of the glebe land. By a written agreement made on 19th March 1956 this paddock was let by the rector to the plaintiff in these proceedings. It was let on a yearly tenancy from Michaelmas 1955 at the rent of £3 a year.
By clause 3 of the tenancy agreement it was provided that: "The Tenant shall manage the said land in a good husbandlike manner …" and that and other indications in the agreement make it clear that it was at the start an agricultural tenancy.
In the course of time the reversion passed to the defendants, who are four in number: a Mr. and Mrs. Smith and a Mr. and Mrs. Evans. Mr. and Mrs. Evans were the parents of Mrs. Smith. There has since been a divorce between Mr. and Mrs. Smith, but Mrs. Smith and her parents continue to live at the old rectory.
The question at issue in these proceedings is whether this tenancy, having begun as an agricultural tenancy protected by the Agricultural Holdings Act 1948, continues to enjoy that protection. The plaintiff's claim was for an injunction to restrain the defendants from interfering with his quiet possession of the paddock. The defendants, by their defence, claimed that the plaintiff's tenancy had come to an end and they asked, by a counterclaim, for, among other relief, a declaration to that effect.
At the trial the learned judge held that the tenancy con-tinued to be an agricultural one and accordingly he found in favour of the plaintiff and awarded him £100 damages; and it followed that the defendants' counterclaim was dismissed. The defendants appeal, contending that the holding had ceased to be an agricultural holding. By their notice of appeal as originally presented - as it remained up to yesterday - they claimed only a new trial, upon the basis that the learned judge's findings were not sufficiently clear to justify a firm decision one way or the other. Leave was granted yesterday for the notice of appeal to be amended so as to claim in the alternative to a new trial that judgment should be entered for the defendants.
It is convenient to refer straightaway to the Agricultural Holdings Act 1948 section 1 containing the definition of "agricultural holding":
"1(1) In this Act the expression 'agricultural holding' means the aggregate of the agricultural land comprised in a contract of tenancy, not being a contract under which the said land is let to the tenant during his continuance in any office, …"
No question arises on the later words of that subsection.
"(2) For the purposes of this and the next following section, the expression 'agricultural land' means land used for agriculture which is so used for the purposes of a trade or business …"
The remaining words of that subsection are irrelevant. There is a definition in section 94(1) of "agriculture" in these terms:
"Agriculture includes horticulture, fruit growing and seed growing, dairy farming and livestock breeding and keeping the use of land as grazing land, meadow land"
and various other uses but, for the purpose of this appeal, the main words of that definition which are relevant are the words "use of the land as grazing land".
The tenancy agreement having been entered into, it was in1970 that the reversion passed to the four defendants. Mrs. Smith, the second named defendant, runs a riding school. The plaintiff is a farmer and his farm adjoins the paddock. Relations between the defendants and the plaintiff, after the defendants had become his landlords, do not seem at any time to have been happy. Acrimonious correspondence began in September 1971. The first defendant was then asserting, quite wrongly, that the tenancy would end at Michaelmas 1971. The immediate reply on behalf of the plaintiff was that it was an agricultural tenancy which, at that stage, was accepted on the part of the defendants and, accordingly, in 1973 the first defendant gave notice under the 1948 Act claiming reference to arbitration of the question of increase of rent. Apparently, without the necessity of going to arbitration, it was agreed that the rent should be increased from £3 a year to £4 a year.
Another year passed and in September 1974 the first defendant then gave notice claiming arbitration for a further increase of rent. Again, it was unnecessary to go to arbitration because there was an agreement for an increase in the rent to £20 a year, and that agreement was put in writing on 8th October 1974. So, up to that stage, quite clearly the defendants were recognising this as being an agricultural tenancy.
But certain events happened between that time and September 1976 which led the defendants to take the view that the tenancy was no longer an agricultural one and notice to quit was served upon the plaintiff in September 1976, expiring at Michaelmas 1977. It is common ground that that would have been an effective notice except for the provisions of the 1948 Act. The plaintiff, contending that the holding continued to be an agricultural holding, through his solicitors gave a counter-notice in accordance with the 1948 Act on 5th October 1976.Thereafter there was correspondence between the solicitors for the two parties as to whether the holding did indeed continue to be an agricultural holding within the meaning of the Act.
In the course of that correspondence the defendants' solicitors wrote on 26th October 1977 contending that the land had been used for a considerable time simply as a jumping paddock. The reply from the plaintiff's solicitors was that it was continuing its character of an agricultural holding and was still being used for agricultural purposes.
It can be said at once that, if the use and the only use were as a jumping paddock with no involvement in any business activity - or, indeed, if it did involve a business activity - it would not amount to use for agriculture, because such jumping could be regarded as a recreational purpose and, within the recent decision of the House of Lords in Earl of Normanton v. Giles and Another (1980) 1 WLR 29, would not be used for agriculture.
The plaintiff started his action in November 1977 and by his particulars of claim, which were very slightly amended only to increase the amount of his claim, he set out the circumstances about the yearly tenancy, alleging that it was a tenancy under the Agricultural Holdings Act 1948, and by paragraph 2 said:
"The Defendants are in breach of the covenant for the Plaintiff's quiet enjoyment implied by law by virtue of the said tenancy.
"The Second Defendant has taken possession of the above described field and by her action has prevented and is preventing the Plaintiff from using the said field."
It was, in fact, a correct allegation that the second defendant had indeed taken possession of the field; a letter had been written to the plaintiff's solicitors saying that she had done so. The plaintiff claimed damages, which by then were £500, and an injunction to restrain the defendants from furtherinterference.
By their defence the defendants alleged that, since the tenancy agreement, the plaintiff had not continued to use the land for agriculture, and the pleading went on to say:
"For a number of years the Plaintiff has used the land only for grazing horses or ponies and riding the said horses and ponies. By his conduct the Plaintiff has changed the nature of the tenancy. Since the said change of use the Defendants accepted rent from the Plaintiff."
The pleading went on to set out a counterclaim, repeating the facts set out in the defence and saying:
"Since the termination of the tenancy the Plaintiff has trespassed on the said land …"
Damages were claimed in respect of certain acts the plaintiff was said to have done on the land, and then there was a claim for a declaration that the tenancy of the plaintiff had been terminated by a notice to quit. The reply to that pleading denied the allegations of the defence as to the change of user and said:
"The Plaintiff has used the land throughout the period of his occupation as agricultural land. The said land has been used throughout for the grazing of cattle and horses. The Plaintiff is entitled to graze horses on the said land and relies on the contents of the aforementioned agreement …"
By further and better particulars of that reply the plaintiff said:
"Horses have been grazed on the land rented by the Plaintiff from the Defendants as part of his agricultural business, these horses being limited to a maximum of two at any one time and the land has also been used for grazing of cows, usually for cows in calf, at times in conjunction with the Plaintiff's adjoining river field with the dividing gate being left open. The rented field has also been manured and mowed for silage at least on one occasion. The Plaintiff has at times erected jumps in the rented field when horses have been ridden and jumped in that field by the Defendant's wife and by children."
The...
To continue reading
Request your trial
-
Lester v Ridd
...Agricultural Holdings Act will be lost if agricultural activity is wholly or substantially abandoned during the course of the tenancy— Wetherall v. Smith [1980] 1 W.L.R. 1290. That would apply, for instance, if the use of the land was changed to business activities which do not fall within ......
-
Joan Russell (Applicant v Eric Edmond Booker (Respondent
...on of a business. The recent decisions of this court in Hickson & Welch Ltd. v. Cann, (1980) Property & Compensation Reports, 218 and Wetherall v. Smith, (1980) 1 Weekly Law Reports, 1290, show that land comprised in a tenancy may cease to be an agricultural holding protected by the 1948 A......
-
Note Of Amanda Urquhart And Deanna Urquhart For Orders Under And In Terms Of Sections 130 And 167(3) Of The Insolvency Act 1986 In Respect Of The Winding Up Of West Larkin Limited
...use had ceased. The Land Court held that it was open to the landlord to seek declarator (as occurred in England in Wetherall v Smith [1980] 1 WLR 1290), that the protection of the statute is lost if agricultu ral activity is wholly or substantially abandoned durin g the course of the tenanc......
-
Axnoller Events Ltd v Nihal Mohammed Kamal Brake
...that actual use may later become relevant; for example, if the tenant substantially abandons agricultural use of the holding ( eg Wetherall v Smith [1980] 1 WLR 1290; Hickson and Welch v Cann (1977) 40 P & CR 218). In this case, however, the originally agreed use has continued throughout. ......
-
Common Questions and Answers on Agricultural Holdings Act 1986 Tenancies
...abandoned. 3 1 Note : all references are to sections in the 1986 Act. 2 Howkins v Jardine [1951] 1 All ER 320. 3 See Wetherall v Smith [1980] 2 All ER 530 and Short v Greeves [1988] 08 EG 109. 80 Agricultural Tenancies 6.2 SECTION 2: CONVERSION INTO A TENANCY FROM YEAR TO YEAR Question Is t......
-
Table of Cases
...2 EGLR 80, [1995] 49 EG 128, CA 81 Street v Mountford [1985] AC 809, [1985] 2 WLR 877, [1985] 2 All ER 289, HL 80 Wetherall v Smith [1980] 1 WLR 1290, [1980] 2 All ER 530, (1980) 40 P & CR 205, CA 79 Wykes v Davis [1975] QB 843, [1975] 2 WLR 131, [1975] 1 All ER 399, CA 64 ...