William Agnew McPhail and Another (Appellants (Plaintiffs) v Philip Edwin Greensmith (Respondent
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE FOX,LORD JUSTICE PARKER |
| Judgment Date | 06 August 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0806-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 August 1987 |
| Docket Number | 87/0860 |
[1987] EWCA Civ J0806-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HORSHAM COUNTY COURT
(His Honour Judge McManus)
Royal Courts of Justice
Lord Justice Fox
and
Lord Justice Parker
87/0860
and
MR. DAVID GERREY (instructed by Messrs Davenport Jones & Co., Eastbourne) appeared on behalf of the Appellants/ Plaintiffs.
MR. WILLIAM BATSTONE (instructed by Messrs Fox & Kent, West Sussex) appeared on behalf of the Respondent/Defendant.
This is an appeal by the plaintiffs from an order of Judge McManus at the Horsham County Court. The plaintiffs have a farm of some 600 acres where they engage in mixed farming. They seek recovery of a farm cottage having a rateable value of £186.
The plaintiffs let the defendant into occupation of the cottage in March 1982 as a term of a contract of employment orally agreed between the plaintiffs and the defendant. It was a condition of the contract that the defendant should occupy the cottage for the better performance of his duties. No rent or other payment was made by the defendant, or required of him in respect of his occupation. The plaintiffs dismissed the defendant from their employment in December 1985. He was informed that his licence to occupy was terminated as from the end of January 1986. The defendant refused to vacate the premises and asserts that his occupation is protected under the Rent (Agriculture) Act 1976. The defendant's occupancy is protected by the statute if he is a qualifying worker at the relevant time. "Qualifying worker" is defined in paragraph 1 of Schedule 3 Part 1 to the Act as follows:
"1. A person is a qualifying worker for the purposes of this Act at any time if, at that time, he has worked whole-time in agriculture, or has worked in agriculture as a permit worker, for not less than 91 out of the last 104 weeks."
I now turn to paragraph 4 (2) of Part 1 of the Schedule which is in these terms:
"4—(1) The provisions of this paragraph shall have effect for determining what is whole-time work in agriculture for the purposes of this Part of this Schedule.
(2) A person works whole-time in agriculture for any week in which—
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(a) he is employed to work in agriculture, and
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(b) the number of hours for which he works in agriculture, or in activities incidental to agriculture, for the person or persons by whom he is so employed is not less than the standard number of hours."
The central question with which we are faced is "Was the defendant employed to work in agriculture?" If he was, then he succeeds. I will elaborate upon that later. Agriculture is widely defined in section 1 (1) of the Rent (Agriculture) Act 1976, which provides:
"(1) In this Act—
(a) "agriculture" includes—
(i) dairy-farming and livestock keeping and breeding (whether those activities involve the use of land or not);
(ii) the production of any consumable produce which is grown for sale or for consumption or other use for the purposes of a trade or business or of any other undertaking (whether carried on for profit or not);
(iii) the use of land as grazing, meadow or pasture land or orchard or osier land;
(iv) the use of land for market gardens or nursery grounds; and
(v) forestry;"
(b) "forestry" includes—
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(i) the use of land for nursery grounds for trees, and
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(ii) the use of land for woodlands where that use is ancillary to the use of land for other agricultural purposes."
The evidence, at the trial of the first plaintiff, Mr. McPhail, is recorded in the judge's notes as follows (page 63 of the bundle):
"Early 1982 took on Defendant as employee 22.3.82. I was seeking a man skilled in mechanics—rotary equipment who could mill- drying cereals—who could service tractors—combines and so on—and maintain them. In 1982 we had 2 combines—up to 12 tractors—or 4 or 5 ploughs—machinery to make and harvest hay and to harvest cereal crops. We had a full time mechanic. No question of Defendant being required to work on the farm—there has never been any shortage of farm labour. I interviewed Defendant—discussed his range of duties. He said he was qualified as an engineer.….. On a number of days he did other work—I accept Time Sheets without reserve. I don't regard hedging as being part of agricultural activity. He was not employed to do anything else. Defendant was not retained to do a farm workers job."
The defendant, as recorded in the judge's note, said:
"I saw job advertised "Wanted Farm Maintenance Man with tied cottage". I explained I never worked on farm before. I understood myself to be general farm worker and mechanic. Plaintiff described me as "maintenance man". I kept diary showing work done. 3 diaries relate closely to time sheets.….. I understood that I was principally engaged as Farm mechanic. I work on vehicles. I had no previous experience of work on a farm. I have done every major job on tractors."
The judge's finding, as stated in his judgment, was this:
"I am satisfied that the Defendant was employed by the Plaintiffs primarily as a farm mechanic but that he did a quite substantial amount of farm work. Time-sheets which are before me show that certainly during the summer months the Defendant spent time attending to vehicles but at others to substantial other work. For example, the second sheet before me shows: ditching, attending to a gate and on the first sheet: muck-scraped Falconers Yard, attended to loading grain on two occasions, attended to conveyer, stock-taking, cleaned dryer etc."
The judge found as a fact that the defendant was employed to work in agriculture and he dismissed the claim for possession.
It is clear that the defendant did general work on the farm, which was not purely of a mechanical kind. It is agreed that for the whole of the qualifying period referred to in Schedule 3 he did for some hours per week work which is properly described as work in agriculture.
The question which we have to consider is "Was he employed to work in agriculture?" It is said on behalf of the plaintiff that he was not, that in effect he was employed as a mechanic. But it is not in doubt that he was from time to time expected to do other work as well as looking after the machinery, though the mechanical side was undoubtedly his main activity. In my view, on the facts before us, it was by implication part of his contract of service that he would do such non-mechanical work as he was reasonably required to do in and about the farm. It seems to me that that was, and was accepted on both sides as being, part of his contract. I think that by implication it was part of his original contract. If it was not part of his original contract, then I think that by agreement his contract was varied from time to time whenever he did the additional work of a non-mechanical kind and that he was accordingly employed to do that work. In the result, in my judgment, he was employed to work in agriculture throughout the qualifying period. If that is right, then it brings him within paragraph 4...
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