Agricultural holding–Application by tenant to quash decision of agricultural land tribunal–Tribunal’s consent on ground of greater hardship to landlord’s notice to quit challenged by tenant–Second hearing by Divisional Court–Court at first hearing had rejected as relevant hardship the frustration of landlord’s desire to obtain possession in order to leave land to her nephews and nieces–Remaining question as to whether it could be hardship for a landlord to have to retain a tenant who, although prepared to offer as much rent as a competitor for a tenancy, was a poorer farmer–Matching offer by existing tenant and allegation of poor farming occurred late in tribunal proceedings–Application to quash tribunal decision in favour of landlord rejected–Tribunal entitled to have regard to prospective condition of land as one of the factors relevant to hardship
This was an
adjourned hearing of an application by Albert Parslow for an order of
certiorari to quash a decision of the Agricultural Land Tribunal for the South
Eastern Area consenting to a notice to quit given by his landlord, Mrs Mabel
Winifred Hawkins. The holding in respect of which the notice to quit was given
consisted of certain fields at Willetts Farm, Flowers Bottom, Speen,
Buckinghamshire. The earlier hearing before a differently constituted
divisional court (Lord Widgery CJ and Croom-Johnson and Stocker JJ, took place
on May 22 1978, when the court decided that one of the grounds on which the
tribunal had relied in reaching a conclusion in favour of the landlord on the
issue of greater hardship could not be supported. This was the landlord’s
desire to obtain vacant possession in order to be able to leave the fields in
question to her nephews and nieces after her death. The court, however, at the
earlier hearing sent the case back to the tribunal for clarification of their
findings on a second ground on which greater hardship was alleged. This related
to an offer of rent by a prospective tenant for the fields which was higher
than the rent being paid by the present tenant, but which the latter at a late
stage of the tribunal proceedings was stated to have expressed his willingness
to match.
Derek Wood QC
(instructed by Clarke & Son, of High Wycombe) appeared on behalf of the
applicant to the divisional court (the tenant); H Martineau (instructed by
Winter-Taylor, Woodward & Webb, of High Wycombe) represented the respondent
landlord.
Giving
judgment, LORD WIDGERY CJ said: This is an adjourned hearing of an application
which came before this court as long ago as May 22 1978. When the case was
before us we were concerned with an application to quash an order made by the
Agricultural Land Tribunal for the South Eastern Area on October 12 1976
whereby the said tribunal gave their consent to the operation of a notice to
quit served by Mabel Winifred Hawkins as landlord upon the applicant as her
tenant in respect of certain fields there specified. The reason for the
decision was that the said Mabel Winifred Hawkins had satisfied the tribunal
that greater hardship would be caused by withholding than by giving consent to
the operation of the notice. That reference to greater hardship is of course a reference
to the provisions of the Agricultural Holdings Act 1948 in which the lady was
seeking to obtain possession against the applicant tenant. Section 25 (1)
provides:
The
Agricultural Land Tribunal shall consent under the last foregoing section to
the operation of a notice to quit an agricultural holding or part of an
agricultural holding if, but only if, they are satisfied as to one or more of
the following matters . . . (d) that greater hardship would be caused by
withholding than by giving consent to the operation of the notice.*
*Repealed by
the Agricultural Holdings (Notices to Quit) Act 1977 and re-enacted in section
3(2)(d) of that Act.
The
circumstances which confronted this court when the matter was here on the
previous occasion were that the existing tenant against whom the notice to quit
was served was claiming that he would suffer greater hardship if he was turned
out than the landlord if she was not allowed to turn him out. As these things
go, two points, and two points only, raised themselves in the evidence as
decisive on the question of hardship. The first point was a financial one,
because there was an argument as to whether the amount of rent which would be
paid by the applicant, Mr Parslow, would or would not match the amount of rent
which might be paid by another competitor for the land, Mr Eggerton. The
tribunal, after giving considerable reasons for their views, came to the
conclusion that these offers matched and accordingly there was nothing to
choose between them. Of that more anon. The other point was concerned with the
desire of the landlord to have possession of the fields in question so that she
would be free to give them by will to her nephews and nieces when the time came
for her to make a will. That was no doubt a perfectly laudable object. But,
rightly or wrongly, this court as then constituted took the view that the
possible prejudice to the nephews and nieces was not a relevant consideration
in dealing with the comparative hardship of the landlord and tenant in these
alternative possibilities. In my judgment, whether that decision was right or
wrong, it cannot be touched in this court on this occasion, and indeed no one
has tried to alter it.
One is left,
therefore, with the second of two points which is the only live point before
us, and that is concerned with hardship, as I have indicated, and it was
concerned with whether the amount of rent payable by one prospective tenant
would be more satisfactory than another. The tribunal seem to have come to the
conclusion that the offers were matching offers in the strict sense that the
amount put forward by the two prospective tenants was the same. We were not
satisfied that we understood that. Perhaps one might have been; who knows? We sent the case back to the tribunal with a
request to make it fully and abundantly clear what their intentions and
findings were on two points: first of all, to describe the facts which they
found proved which justified their concluding that the offer of Mr Eggerton was
a matching offer, which
was available from Mr Parslow; and, secondly, to set out the evidence which
supported each and every one of the facts so relied upon. That is what we asked
them to do.
They have done
their best, I have no doubt, in the document which has been produced to us, and
it reads thus so far as relevant:
The tribunal
would like to make the point that it was Mr Eggerton who had come forward with
the offer of £210 per annum for the grazing rights of the land and it was Mr
Parslow who in his evidence in chief said that he was prepared to pay the
market rent. According to his surveyor, M R Wakeling, the market rent would be
£10 per acre which would be £70 per annum and this is what was offered by Mr
Parslow in his written statement submitted to the tribunal. It was either
during the course of evidence or during the closing address on behalf of Mr
Parslow that it was put forward that he was prepared to equal Mr Eggerton’s
offer, so the tribunal took the view that it was Mr Parslow who was seeking to
match Mr Eggerton’s offer rather than vice versa. Assuming that Mr Parslow
would have been prepared to pay the sum of £210 per annum, the tribunal remain
of the opinion that Mr Eggerton’s offer would be more advantageous to the
applicant.
One notices in
passing, as was said in the course of argument, that much of the trouble in
this case has been due to the competing offers coming in so late. It was not so
late that it was not possible for the tribunal to deal with them at all, but
the offers came in so late in the proceedings that a proper and mature
consideration must have been rather difficult. The tribunal go on to explain
the difficulties that beset them.
They say:
The evidence
upon which they reached this conclusion was in part visual and in part oral.
The visual evidence was the state of the land. Two of the paddocks were
overgrown as was admitted by Mr Wakeling and the remainder of the land was in poor
heart. The tribunal was of the opinion that it was self-evident that Mr Parslow
had neglected the land and could not therefore regard it as an important part
of his farming activities. Furthermore, the oral evidence of Mr Eggerton
persuaded the tribunal that he was prepared to devote time and money to the
land. He stated that he would plough up the two overgrown paddocks and reseed
them; that he was prepared to erect fences where necessary and maintain them
and the hedges.
The tribunal
were of the opinion that the land would be well looked after in his hands and
were satisfied that he would also look after the interests of Mrs Hawkins. The
evidence of Mr Parslow did not satisfy the tribunal about the condition of the
land.
It was for
these reasons that the tribunal was not satisfied that the offer made by Mr
Parslow could be as advantageous as that made by Mr Eggerton and remain of the
opinion that their decision was correct and that it is just and equitable that
Mrs Hawkins should be able to regain control of her land.
I would say at
once that, in my opinion, the point raised in that last paragraph is a
perfectly proper point by virtue of its nature, to be taken in these
proceedings. What is being said is that the offer of a tenancy by A is superior
to an offer of tenancy by B because A is a good farmer and will maintain the
landlord’s capital assets, whereas B is a poor farmer and will let it go to
rack and ruin. Faced with that kind of factual choice, a tribunal would be fully
entitled to regard the prospective condition of the land as one of the factors
which goes to hardship or no.
Mr Wood has
made it perfectly clear that he is not complaining about the reasons relied
upon by the tribunal as being inherently wrong. What he is saying is that it is
an allegation of bad farming which came up so late that it ought to have been
discounted altogether. It is on this question of whether justice can be done on
the existing material that we have had to spend a certain amount of time on
this case this afternoon.
It is to be
observed that at the initial hearing before the tribunal there was a reference
to the condition of the fields, so it is quite clear that there was some
argument about the state of the farming and the quality of each of the farmers.
I have come to the conclusion that the tribunal clearly intended to base their
decision on that. It was a good point in itself. There is no question here of
anyone suffering hardship despite the fact that the material was brought in at
such a late date as I have indicated.
I would
dismiss the application.
Agreeing,
GEOFFREY LANE LJ said: It seems to me that the difficulty has arisen very
largely from the unfortunate way in which this counter-offer by Mr Parslow was
made at the hearing. It seems to be reasonably certain that Mr Parslow’s offer
of £210 was not made until the final speech on his behalf. There is a
suggestion that it might have been made in the evidence, but if it had been
made by Mr Parslow it is unlikely that the tribunal would have said, as they
did on p 2 of their fresh document: ‘Assuming that Mr Parslow would have been
prepared to pay the sum of £210. . . .’
That being so, and the offer having, it seems, been made so late, the
possibility of any cross-examination of Mr Parslow as to his ability to pay the
extra rent or his ability to farm this land properly if he did keep on with it
was not available.
The result was
a series of difficulties. First of all, in their original findings the tribunal
were very sparse and economical of their reasons, with the result that when the
matter came for the first time before this court the order was made which my
Lord has read out. In obedience to that order, because they had no alternative
but to obey it, the tribunal have done their best to implement or to supplement
what they said before, as this court requested them to do. The result is clear.
What they are saying is quite simply that, although pound for pound the two
tenants were offering the same rent, the result of one tenancy would be so much
better than the result of the other that it would be hardship for the landlord
to have to accept the worse farmer as the tenant.
Mr Wood, in a
powerful argument, suggests that bad husbandry is dealt with in section 27 and
should not become the subject of examination under section 24 or any part of
it. But the reason it became the subject of inquiry was once again because of
the way the thing had gone. Because of the counter-offer by Mr Parslow it then
became relevant to see how he had performed as a farmer. The answer to that was
quite plain. On all the evidence he had performed very badly.
I agree with
my Lord that this application in those circumstances can properly be refused.
ACKNER J also
agreed.
The applicant
(tenant) was ordered to pay the costs of both hearings before the court.
