Wykes v Davis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUCKLEY,LORD JUSTICE BROWN |
| Judgment Date | 08 November 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J1108-3 |
| Date | 08 November 1974 |
| Court | Court of Appeal (Civil Division) |
[1974] EWCA Civ J1108-3
In The Supreme Court of Judicature.
Court of Appeal.
(Appeal of Tenants from Order of His. Honour Judge Pratt, Barnstaple County Court, dated July 11, 1974.)
Lord Justice Buckley,
Lord Justice Browne and
Mr Justice MacKenna.
re Agricultural Holdings Act 1948 and
The Agricultural (Miscellaneous Provisions) Act 1963
re an Arbitration
MR A. FLETCHER, (Instructed by Messrs. Parker Garrett & Co.) appeared on behalf of the Appellants (Tenants).
MR D WOOD, (Instructed by Messrs. Freshfields) appeared on behalf of the Respondents (Landlords)
This is an appeal from a judgment of His Honour judge Pratt of 11th July, 1974, on a case stated by an arbitrator for the opinion of the court under the Agricultural Holdings Act 1948, as amended by the Agricultural ( Miscellaneous) Provisions Act 1963. The arbitrator submitted two questions of law for the opinion of the Court with only one of which we are concerned. It is this: On a true construction of Section 24 (2) (d) of the Agricultural Holdings Act 1948, and Section 19 (1) of the Agricultural ( Miscellaneous Provisions) Act 1963, was a notice to remedy given on 26th January, 1973. Invalid on the ground that the period specified in the notice was not a reasonable period in which to remedy all of the breaches specified in the notice, although it was a reasonable period in which to remedy some of the breaches? The learned judge answered that question in the negative, holding in effect that the notice was valid in part, although invalid as to part.
The appellants are yearly tenants of two farms in Devon known as Saunton Barton and East Saunton Farms, comprising some 500 acres, under an agreement of 29th May, 1969, The year of the ten a nay ends on 29th September. The respondents are the landlords, I shall refer to the parties as "the tenants" and "the landlords" respectively.
On 26th January, 1973, the landlords by their agent gave the tenants notice in the prescribed form required by Section 19 (1) (a) of the Act of 1963 requiring them to remedy within seven months from the date of service of that notice the breaches of which particulars were set out In the notice. The terminal date of that notice, which was 26th August, 1973, or thereabout, was such as to allow the landlords time to serve notice to quiton the tenants before 29th September, 1973, so as to terminate the tenancy at 29th September, 1974. On 29th August, 1973, the landlords served the tenants with notice to quit the farms on 29th September, 1974, on the ground of their failure to comply with the notice to remedy.
The tenants did not dispute their liability to carry out any of the remedial works specified in the notice to remedy. These works were, listed in the schedule to the notice to remedy, which is headed in accordance with the prescribed form "Particulars of Breaches of Terms or Conditions of Tenancy. They were grouped under three headings: first, Dilapidations to Hedges and Banks", under which heading work was required to be carried out upon nine separate hedges or banks; secondly, "Dilapidations to Field Surfaces", under which heading work was required to be done in five fields; thirdly, "Dilapidations to Gates", under which heading work was required upon gates in nine fields. By 26th August, 1973, the tenants had done all the work required by the notice except (1) they had not repaired all the "growth banks" mentioned under the first heading; and (2) they had not fully cleaned one field of couch.
The arbitrator made two important findings of fact. He found that the period of seven months specified in the notice to remedy was not a reasonable time in which to repair all the growth banks because, according to the rules of good husbandry, this type of work was to be carried out during the winter months; and he found that the period of seven months specified in the notice to remedy was a reasonable time within which to eradicate the couch from the field which was still to some extent infested at 26th August, 1973.
The tenants contend that in these circumstances the notice to remedy was wholly invalid, because seven months was not a reasonable period in which to carry out all the work' required by it. The landlords contend that the notice was valid, notwithstanding the first of the two findings which I have mentioned, to the extent of all the works required by the notice with the exception of the repair of the growth banks.
The question to be determined is rightly formulated as a question of construction of Section 24 (2) (d) of the Act of 1948 and of Section 39 (1) of the Act of 1963. Section 24 (1) of the 1948 Act provides that where a tenant is given notice to quit an agricultural holding he may give a counter-notice to the landlord, whereupon, subject to the provisions of subsection (2), the notice to quit shall not have effect unless the Minister (now the Agricultural Land Tribunal) consents to the operation thereof. Subsection (2), so far as material for present purposes, was originally enacted in the following terms: "The foregoing subsection shall not apply where (d) at the date of the giving of the notice to quit the tenant had failed to comply with a notice in writing served on him by the landlord requiring him … within a reasonable time or within such reasonable period as was specified in the notice to remedy any breach by the tenant that was capable of being remedied of any term or condition of his tenancy which was not inconsistent with the fulfilmet of his responsibilities to farm in accordance with the rules of good husbandry, and it is stated in the notice to quit that it is given by reason of the matter aforesaid.". By Section 19 (6) of the 1963 Act Section 24 (2) (d) of the 1948 Act was amended by deleting the words "within a reasonable timeor"; Section 19 (1) provides that "for the purposes of paragraph (d) of Section 24 (2): of the Agricultural Holdings Act 1948, (a) a notice requiring the tenant to remedy a breach of any term or condition must be in the prescribed form and must specify the period within which the breach is to be remedied; (b) where such a notice in the prescribed form requires the doing of any work of repair, maintenance or replacement, any further notice requiring the doing of any such work and served on the tenant less than twelve months after the earlier notice shall be disregarded, unless the earlier notice was withdrawn with his agreement in writing; (c) a period of less than six months shall not be treated as a reasonable period within which to do any such work," Subsections (2), (3) and (4) of that. Section enable the Lord Chancellor to make regulations and to prescribe forms by statutory Instrument subject to annulment by resolution of either House of Parliament. This power includes power to prescribe different forms for the purposes of Section 19 (1) (a). The form appropriate to the present case was proscribed by the Agricultural (blank) months from the date of service of this notice the breaches whereof particulars are given below of the terms or conditions of your tenancy, being breaches which are capable of being remedied ofterms or conditions which are not inconsistent with the fulfil ment of your responsibilities to farm the holding in accordance with the rules of good husbandry, 2. The notice requires the doing of the work of repair, maintenance or replacement specified below. 3. This notice is given in accordance with Section 24 (2) (d) of the Agricultural Holdings Act 1948, and Section 19 (1) of the Agricultural ( Miscellaneous Provisions) Act 1963. Failure to comply with it within the period specified above may be relied on as a reason for a notice to qui under Section 24 (2) (d) of the Agricultural Holdings Act 1948. 4. Your attention is drawn to the notes following the signature to this notice." There then follows the schedule, headed in the manner I have already mentioned, which contains spaces for indicating the term or condition of tenancy alleged to have been contravened in each case and particulars of the breach alleged and the work required to remedy It. A marginal note is printed opposite to paragraph 1 of the notice relating to the words "within (blank) months". The note is In these terms "This period must be a reasonable period for the tenant to remedy the breaches and must in any event be not less than six months." At the foot of the space left to contain the schedule there are some explanatory notes which I do not think it necessary for me to read.
The tenants contend that the natural meaning of the statutory language is such that the landlord must servo a notice wallowing a reasonable period for all the work specified in it to be completed. in this connection they rely by way of analogy on decisions under the Conveyancing Act 1881, Section 14, now superseded by the Law of Property Act 1925, Section 146. Theycontend that the language of those sections is very similar to the language of Section 24 (2) (d) of the 1948 Act as originally enacted, and they say that, If a landlord had served a notice under that section requiring works to be done within a reasonable time without specifying any particular period, a reasonable time would not have been held to have elapsed until the expiration of a sufficient period to allow of the completion of all the works required by the notice. They say that It would be illogical If a different principle or construction were to be adopted in a case In which the landlord chose to specify the period. They contend that the 1963 amendment cannot have been intended to alter the effect of the words "within such reasonable period as was specified in the notice" drastically to the advantage of the landlord. They say that it is for the landlord to decide what works he shall require by the notice, and that...
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