Agricultural holdings — Notice to quit — Protection from Eviction Act 1977 — Whether premises let as a dwelling — Whether notice to quit agricultural holding with dwelling must comply with 1977 Act
In 1985 the plaintiff landlords let to the
defendants an agricultural holding which included farmhouses, buildings and a
dwelling-house. The tenants used the holding for the purposes of farming and
lived in the houses. In November 1994 the landlords served on the tenants a
notice to pay rent. The tenants having failed to comply with the notice, were
then served with a notice to quit purporting to terminate the tenancy under the
Agricultural Holdings Act 1986. No challenge was made to the notice by the
tenants under the 1986 Act, but they contended that the notice was invalid
because it failed to comply with section 5 of the Protection from Eviction Act
1977 and the regulations made thereunder. The county court held that where
primarily agricultural premises are let containing a dwelling-house, the
premises are let as a dwelling within the meaning of section 5 of the 1977 Act.
The landlords appealed.
an agricultural holding, even if there is a dwelling upon the holding, do not
constitute premises let as a dwelling for the purposes of section 5 of the Act.
The premises were let as an agricultural holding and not as a dwelling. The
subject-matter of the letting includes a dwelling but section 5 cannot be read
as if it used the expression ‘premises which includes a dwelling’ or ‘any
dwelling-house let as a part of premises’. The notice to quit was valid and it
was not rendered invalid by the absence of a notice containing the ‘prescribed
information’ in the Notice to Quit etc (Prescribed Information) Regulations
1988. The information is inappropriate in the case of an agricultural tenancy.
The following cases are referred to in
this report.
Bracey v Read [1963] Ch 88; [1962] 3 WLR
1194; [1962] 3 All ER 472
Dallhold Estates (UK) Pty Ltd v Lindsey Trading Properties
Inc (1994) 70 P&CR 332; [1994] 1 EGLR 93; [1994] 17 EG 148, CA
Horford Investments Ltd v Lambert [1976] Ch 39;
[1973] 3 WLR 872; [1974] 1 All ER 131; (1973) 27 P&CR 88, CA
Maunsell v Olins [1975] AC 373; [1974] 3
WLR 835; [1975] 1 All ER 16; [1975] 1 EGLR 7; (1974) 233 EG 591, HL
Russell v Booker [1982] 2 EGLR 86; [1982]
EGD 58; (1982) 263 EG 513
Whitley v Stumbles [1930] AC 544; 46 TLR
555
This was an appeal against the decision
of Mr Recorder Briggs sitting at Lancaster County Court dismissing the plaintiffs’
claim for possession of an agricultural holding.
Derek Wood QC and William Batstone,
solicitor advocate (instructed by Burges Salmon, of Bristol) appeared for the
plaintiffs; Paul Morgan QC and Steven Jourdan (instructed by Cartmell Shepherd,
of Carlisle) represented the defendants.
Giving judgment at the invitation of
Butler-Sloss LJ, PILL LJ said: This case turns upon the meaning of the
expression ‘premises let as a dwelling’ within the meaning of section 5 of the
Protection from Eviction Act 1977 (‘the 1977 Act’). The National Trust, the
plaintiffs, appeal against a decision of Mr Recorder Briggs sitting at
Lancaster County Court on February 24 1997 whereby he dismissed the plaintiffs’
claim for possession against Ronald Richard Knipe and Richard George Knipe (the
defendants) of a landholding known as Cinderbarrow Holeslack at Flashback in
the parishes of Levens and Helsington, Cumbria (‘the holding’).
The holding was let by the plaintiffs to
the defendants by a tenancy agreement dated August 12 1985 on an annual
tenancy. The holding included Holeslack farmhouse and buildings, Cinderbarrow
farmhouse and buildings and over 350 acres of pasture land. In 1989 a further
dwelling-house, Holeslack cottage, was added to the letting. The defendants are
father and son and members of their family have farmed part of the holding for
very many years. Father lives in one of the farmhouses and son in the other.
The agreement is in the plaintiffs’
common form and the word ‘tenant’ appears in the singular. The tenant agreed
‘to farm and manage the holding in accordance with the rules of good
husbandry’, not to use ‘the holding or any part thereof for any purpose other
than agriculture’ and ‘personally to reside in the farmhouse and make the same
his usual place of residence’. It is common ground that the tenancy was
protected by the provisions of the Agricultural Holdings Act 1986 (‘the 1986
Act’).
On November 21 1994 the plaintiffs served
on the defendants under the 1986 Act a notice to pay rent in respect of arrears
then due. In default of compliance, the plaintiffs served a notice to quit
purporting to terminate the tenancy on May 12 1996. The defendants did not
exercise their right under the 1986 Act to challenge the notice to quit by
arbitration and the plaintiffs took proceedings for possession. It is common
ground that if the holding came within the definition ‘premises let as a
dwelling’ in section 5 of the 1977 Act the notice to quit was invalid for
failure to comply with the Notice to Quit etc (Prescribed Information)
Regulations 1988 (‘the 1988 Regulations’).
Section 5 of the 1977 Act provides, so
far as is material:
(1) … no notice by a landlord or a tenant
to quit any premises let (whether before or after the commencement of this Act)
as a dwelling shall be valid unless —
(a) it is in writing and contains such information as may be
prescribed, and
(b) it is given not less than 4 weeks before the date on which it is
to take effect.
(2) In this section ‘prescribed’ means
prescribed by regulations made by the Secretary of State by statutory
instrument, and a statutory instrument containing any such regulations shall be
subject to annulment in pursuance of a resolution of either House of
Parliament.
(3) Regulations under this section may
make different provision in relation to different descriptions of lettings and
different circumstances.
The 1988 Regulations provide:
2. Where … a landlord gives a notice to
quit any premises let as a dwelling, or a licensor gives a notice to determine
a periodic licence to occupy premises as a dwelling … the information
prescribed for the purposes of section 5 of the Protection from Eviction Act
1977 shall be that in the Schedule to these Regulations.
In the Schedule the information is set
out as follows:
1. If the tenant or licensee does not
leave the dwelling, the landlord or licensor must get an order for possession
from the court before the tenant or licensee can lawfully be evicted. The
landlord or licensor cannot apply for such an order before the notice to quit
or notice to determine has run out.
2. A tenant or licensee who does not know
if he has any right to remain in possession after a notice to quit or a notice
to determine runs out can obtain advice from a solicitor. Help with all or part
of the cost of legal advice and assistance may be available under the Legal Aid
Scheme. He should also be able to obtain information from a Citizens’ Advice
Bureau, a Housing Aid Centre or a rent officer.
The notice to quit in this case did not
include that prescribed information. It is common ground that if the holding
constituted ‘premises let as a dwelling’ within the meaning of section 5 of the
1977 Act, the defect was fatal to the notice to quit and the plaintiffs were
not entitled to possession. It can be said at this stage that the prescribed
information is quite inappropriate to an agricultural tenancy in that if
information or advice is required, it is the tenant’s right to serve a
counternotice to the landlord in writing not later than one month from the
giving of the notice to quit section 26 of the 1986 Act.
The defendants’ case can be put
succinctly. ‘Premises’ means the subject-matter of the letting and ‘let as a
dwelling’ means let wholly or partly as a dwelling. The premises need not be
let predominately as a dwelling. If premises which are primarily agricultural
are let, and there is a dwelling-house on the premises, the premises are let as
a dwelling within the meaning of section 5. The plaintiffs contend that, in
this context, the word ‘premises’ is confined to premises which would be held
to be a dwelling-house and an agricultural holding does not rank as premises
for the purposes of the section. Even if the word ‘premises’ can include an
agricultural holding on which there is a dwelling, the premises are let not as
a dwelling-house but as an agricultural holding and, as such, fall outside
section 5. The expression ‘premises let as a dwelling’ cannot be strained to
include a tenancy of an agricultural holding on which there is a dwelling.
Sections 1 to 3 of the Act provide, in so
far as is material:
1. — (1) In this section ‘residential
occupier’, in relation to any premises, means a person occupying the premises
as a residence, whether under a contract or by virtue of any enactment or rule
of law giving him the right to remain in occupation or restricting the right of
any other person to recover possession of the premises.
(2) If any person unlawfully deprives the
residential occupier of any premises of his occupation of the premises or any
part thereof, or attempts to do so, he shall be guilty of an offence unless he
proves that he believed, and had reasonable cause to believe, that the residential
occupier had ceased to reside in the premises.
(3) If any person with intent to cause
the residential occupier of any premises —
(a) to
give up the occupation of the premises or any part thereof; or
(b) to
refrain from exercising any right or pursuing any remedy in respect of the
premises or part thereof;
does acts likely to interfere with the
peace or comfort of the residential occupier or members of his household, or
persistently withdraws or withholds services reasonably required for the occupation
of the premises as a residence, he shall be guilty of an offence …
(4) A person guilty of an offence …
2. Where any premises are let as a dwelling
on a lease which is subject to a right of re-entry or forfeiture it shall not
be lawful to enforce that right otherwise than by proceedings in the court
while any person is lawfully residing in the premises or part of them.
3. — (1) Where any premises have been let
as a dwelling under a tenancy which is [neither a statutorily protected tenancy
…] and —
(a) the
tenancy (in this section referred to as the former tenancy) has come to an end,
but
(b) the
occupier continues to reside in the premises or part of them,
it shall not be lawful for the owner to
enforce against the occupier, otherwise than by proceedings in the court, his
right to recover possession of the premises.
Section 8(1) provides:
In this Act ‘statutorily protected
tenancy’ means —
(a) a
protected tenancy within the meaning of the Rent Act 1977 or a tenancy to which
Part I of the Landlord and Tenant Act 1954 applies;
(b) a
protected occupancy or statutory tenancy as defined in the Rent (Agriculture)
Act 1976;
(c) a
tenancy to which Part II of the Landlord and Tenant Act 1954 applies:
(d) a
tenancy of an agricultural holding within the meaning of the Agricultural
Holdings Act 1986.
Submissions have been made upon the 1977
Act in the context of statutes which preceded it. The court has also been
referred to cases in which the word premises, as used in statutes dealing with
tenancies, has been interpreted in the strict legal sense of ‘the
subject-matter of the habendum‘: Viscount Hailsham in Whitley v Stumbles
[1930] AC 544 at p547 and Bracey v Read [1963] Ch 88. In Maunsell
v Olins [1975] AC 373*, however, the House of Lords held, by a majority,
that in the context of section 18(5) of the Rent Act 1968 ‘premises’ had the
narrower meaning of premises which, as a matter of fact, would be held to be a
dwelling-house for the purposes of the Act. A farm was not ‘premises’ within
the meaning of that particular section so that the cottage which ‘formed part’
of the farm was not protected by the Act.
*Editor’s note: Also reported at [1975] 1
EGLR 7
Tenancies of different kinds have for
many years been protected by statute; tenancies of dwelling-houses by the Rent
Acts, of agricultural holdings by Agricultural Holdings Acts and of business
tenancies by, eg Part II of the Landlord and Tenant Act 1954 (‘the 1954 Act’).
Superimposed upon them, or interleaved with them, have been provisions to
protect residential occupiers from unlawful eviction and harassment. Such
provisions are contained in the Protection from Eviction Act 1964, Part III of
the Rent Act 1965 and the Protection from Eviction Act 1977. There is no doubt
that the defendants have the protection afforded to agricultural tenancies.
They submit that the dwelling-house or houses which are a part of their holding
also have the protection of section 5 of the Protection from Eviction Act 1977.
That statute, including section 5, was intended to apply to all
dwelling-houses, those which have the protection of other procedures and those
which do not, unless there is an express exclusion. Section 1 sets the scene
for that.
The plaintiffs do not dispute that
section 1 of the Act protects the defendants as ‘residential occupiers’, from
unlawful eviction and harassment. They submit that the inclusion in the same
Act of section 5, dealing with notices to quit, and formerly in section 16 of
the Rent Act 1957, was not intended and does not have the effect of giving the
protection of the section to agricultural holdings which include a
dwelling-house.
The defendants rely on the fact that
section 3 of the Act, the side heading of which reads ‘Prohibition of eviction
without due process of law’ expressly excludes from its operation tenancies
which are ‘statutorily protected’. These are defined in section 8 so as to
include tenancies to which Part II of the Landlord and Tenant Act 1954 applies
and tenancies of agricultural holdings within the meaning of the Agricultural
Holdings Act 1948 (the predecessor of the 1986 Act). A point strongly made by
Mr Paul Morgan QC for the defendants is that no such exclusion appears in
section 5. In the absence of an exclusion which parliament saw fit specifically
to make in section 3, it must be assumed that section 5 was intended to apply
to agricultural holdings. The expression ‘let as a dwelling’ must have the same
meaning is sections 2, 3 and 5 and the specific exclusion of premises partly
agricultural and partly residential in section 3 means that but for the
exclusion they would have been included in section 3 and are included in
section 5.
The defendants also rely upon the
provisions of section 5(3) which provide that regulations under section 5 may
make different provisions in relation to different descriptions of lettings.
While in the event parliament has made only one set of regulations, and these
are inappropriate in the context of agricultural holdings, the conferring of the
power demonstrates that, when enacting section 5 parliament had in mind making
regulations covering the letting of dwelling-houses in different contexts and
not only where the Rent Act applies.
The court has been referred to many
authorities upon whether, under the Rent Acts, premises with a mixed
residential and agricultural use or a mixed residential and business use or
premises where the use has changed since the lease was granted, have the
protection of the Acts. They are of only limited assistance in construing
section 5. Mr Wood relies on Russell v Booker (1982) 263 EG 513*.
The leased premises consisted of a dwelling-house and agricultural land which
had constituted an agricultural holding. The tenant alleged that the original
agreement had been superseded by a subsequent contract which had the effect of
moving the tenancy out of the protection of the Agricultural Holdings Act into
the protection of the Rent Act. Slade LJ set out a series of propositions for
dealing with such a situation and it is clear both that a subsequent contract
may establish a different use and that a unilateral abandonment of agricultural
use does not necessarily bring a tenancy within the Rent Act. It was held that
there was no new contract and it was the terms of the original agreement which
were the essential factor in deciding whether the tenancy was one under which
the dwelling-house was ‘let as a separate dwelling’ within the meaning of
section 1 of the Rent Act 1977. (It is common ground that the presence of the
word ‘separate’ in the expression used in the Rent Acts can, for present
purposes, be ignored.) The letting was for agricultural purposes and was held
to be quite inconsistent with ‘the letting of the house as a separate
dwelling-house’ for the purposes of section 1 of the Rent Act 1977. The case is
authority for the proposition that protection under both section 1 and the
Agricultural Holdings Act is not possible and assists the plaintiffs as a clear
statement by this court of the distinction between the two but I do not find it
determinative of the meaning of the expression ‘premises let as a dwelling’ in
section 5 of the Protection from Eviction Act 1977.
*Editor’s note: Also reported at [1982] 2
EGLR 86
Mr Morgan relies on Dallhold Estates
(UK) Pty Ltd v Lindsey Trading Properties Inc [1994] 17 EG 148*. It
was held in this court that ‘premises’ in section 46(1) of the Landlord and
Tenant Act 1987 means the subject-matter of the letting and the section applied
to an agricultural holding which included a dwelling-house. Section 48 of the
Act was governed by section 46(1) which applied it ‘to premises which consist
of or include a dwelling’. That expression is however so
of assistance.
*Editor’s note: Also reported at [1994] 1
EGLR 93
The interrelation of the 1977 statutes is
not easy to understand. Both the Rent Act 1977 and the Protection from Eviction
Act 1977, which received the Royal Assent on the same day, July 29 1977, are
described as consolidating Acts and Mr Wood has not been able to suggest an
explanation as to why the provisions were not included within a single act as
similar provisions had been in the Rent Act 1965. The Protection from Eviction
Act consolidates Part III of the 1965 Act which dealt with other subjects as
well as protection from eviction. It includes section 5 (notice to quit) in a
single section Part II which takes a single section, section 16, from the Rent
Act 1957.
Mr Morgan submits that, the parliamentary
intention in 1977 being to separate provision for ‘protection from eviction’
from other ‘Rent Act’ provision, the Act must be read with that purpose in mind
and as protecting tenants of dwelling-houses as such. Not only section 1 but
the rest of the Act is intended to apply to all dwelling-houses, including
those which are part of agricultural holdings save where there is, as in
section 3, an express exclusion. In any event, the express exclusion of
agricultural tenancies in section 3 makes plain an intention to include them in
section 5.
Mr Wood was inclined to acknowledge the
‘inexorable logic’ of the defendants’ approach. Mr Wood acknowledges the
difficulty presented by the exclusion of agricultural tenancies from the
operation of section 3 of the Act if, as he submits, the meaning of ‘premises
let as a dwelling’ is clear without the exclusion having to be made. The
mystery, as he called it, may be deepened by the exclusion also of business
tenancies under the 1954 Act which, upon the defendants’ case, would also be
covered by section 5 if they included a dwelling-house. That exclusion is of
little practical significance because in the case of most business tenancies,
the procedure for terminating the tenancy does not require a notice to quit.
Mr Morgan’s submission is that the
application of section 5 to dwelling-houses which are on agricultural holdings
does not conflict with the regime under the Agricultural Holdings Act. The 1977
Act is intended to protect occupiers of all dwelling-houses and the requirement
upon landlords to comply with the provisions of both Acts presents no practical
problem.
It is also submitted that section 4 of
the Act making special provisions for agricultural employees gives the Act an
‘agricultural flavour’ which makes easier a conclusion that section 5 covers an
agricultural situation. It is also submitted that section 7, service of
notices, with its reference in section 7(3)(b) to ‘any dwelling house’
demonstrates an intention to cover all dwelling-houses in the Act. Each of the
sections, in my view, is intended to deal with a particular mischief and they
do not assist upon the construction of the relevant words in section 5.
While I see force in Mr Morgan’s
submission as to the purpose of the 1977 Act, I have come to the conclusion
that premises let as an agricultural holding, even if there is a dwelling upon
the holding, do not constitute premises let as a dwelling for the purposes of
section 5 of the Act. I accept the submission that the ‘premises’ are the
subject-matter of the letting, that is the entire acreage, but they are let as
an agricultural holding and not as a dwelling. The subject-matter of the
letting includes a dwelling but I cannot read the section as if it used the
expression ‘premises which include a dwelling’ or ‘any dwelling house let as a
part of premises’. The difficulty, which I share, in understanding why
parliament saw the need to make specific reference to agricultural holdings in
section 3 of the Act dealing with prohibition of eviction without due process
of law, does not lead me to the conclusion that agricultural holdings are
included in section 5.
In support of that conclusion, I note the
enactment of the Agricultural Holdings (Notice to Quit) Act 1977 a few months
before the Rent Act and the Protection from Eviction Act of that year. It was
an Act to consolidate certain sections of the Agricultural Holdings Act 1948
‘and certain other enactments relating to notices to quit agricultural holdings
in England and Wales and related notices’. Section 2 of the Act sets out
restrictions on the operation of notices to quit agricultural holdings. Had it
been the intention of parliament to include restrictions such as those now
contended for in relation to notices to quit agricultural holdings, I would
have expected them to appear in that statute and not merely subsumed in a
general provision in the Protection from Eviction Act. However, I acknowledge
that similar arguments are available upon a consideration of the pre-1977
statutes which might lead to a contrary conclusion, and I base my view
essentially upon the impossibility, in my view, of reading section 5 as the
defendants require.
It follows that, in my judgment, the
notice to quit was valid and is not rendered invalid by the absence of a notice
containing the ‘prescribed information’ in the 1988 Regulation set out earlier
in this judgment. The information is inappropriate in the case of an
agricultural tenancy as already noted. I do not however regard the contents of
regulations made under and after the Act as a proper tool for construing the
Act, especially when the Act did provide for ‘different provision in relation
to different descriptions of lettings’ … (section 5(3)).
Because of the conclusion I have reached
upon the construction of section 5, I do not propose to consider the
plaintiffs’ further submission, relying on Horford Investments Ltd v Lambert
[1974] 1 All ER 131, save to express my doubts that it covers the present
situation. They submit that the section could not in any event apply when there
is more than one dwelling on the agricultural holding.
I would allow this appeal and hold that
the notice to quit was valid to terminate the tenancy.
Agreeing, JUDGE LJ said: When they
terminated their tenancy agreement with Donald Knipe and Richard Knipe on May
12 1996 the National Trust for Places of Historic Interest or Natural Beauty
(the landlords) complied meticulously with the provisions of the Agricultural
Holdings Act 1986 (the 1986 Act) which provides the statutory foundation of the
system designed to protect agricultural tenants from unreasonable oppressive or
precipitate notices to quit. The question in this appeal is whether the notice
to quit served by the landlords on January 26 1995 in accordance with the
detailed statutory requirements of the 1986 Act was nevertheless invalid
because it failed in addition to comply with section 5 of the Protection from
Eviction Act 1977 (the 1977 Act) and the Notices to Quit (Prescribed
Information) Regulations 1988.
The 1977 Act consolidated a collection of
statutory provisions from earlier legislation. In its present form it is
divided into three parts. Part I effectively repeats provisions found in Part
III of the Rent Act 1965. Subsequent insertions and substitutions were made by
the Housing Acts 1980 and 1988. The focus of this part of the 1977 Act is to
provide protection against eviction and harassment of tenants and to restrict
the enforcement by landlords of their contractual rights without ‘due process
of law’. Part II is concerned with notices to quit and derives from section 16
of the Rent Act 1957 and the Housing Act 1974. Subsequent insertions were made
by the Housing Act 1988. Part III contains supplemental provisions which
include a definition section originally derived from the Rent Act 1965 and as
currently in force includes amendments made by the Agricultural Holdings Act
1986, the Agricultural Tenancies Act 1995, the Housing Act 1988 and the Local
Government and Housing Act 1989.
Although this complicated legislative history
is not without some relevance and because there are circumstances in which
legislation enacted in this way may not represent a coherent whole (see the
observations of CS Greaves QC, the parliamentary draftsman of the Offences
Against the Person Act 1861, quoted by Professor Sir John Smith QC at 1996 CLR
333) I should record that I agree with the submission by Mr Paul Morgan QC that
unnecessary confusion would be caused unless each term in the 1977 Act is given
the same meaning wherever it appears, and that different terms should not be
construed as if they have the same meaning.
For present purposes the first crucial
distinction in the 1977 Act is between ‘residential occupiers’, that is, in
relation to ‘any’ premises, persons ‘occupying premises as a residence’
including such occupation under the terms of a contract (section 1) and
premises ‘let
(section 3). It is an offence either to evict unlawfully or to harass any
residential occupier. Liability to prosecution extends to ‘landlords’,
identified for this purpose as persons who would otherwise be entitled to
possession of the premises. Where premises are ‘let as a dwelling’ restrictions
are imposed on the exercise of any rights of forfeiture or re-entry contained
in a lease (section 2) and rights to recover possessions of premises let under
a tenancy (section 3). These rights may only be enforced by proceedings in
court, unless in the case of a tenancy within section 3 (but not a lease within
section 2) it is an excluded tenancy under section 3(A) which was not entered
into or agreed before January 15 1989, the date when the Housing Act 1988 came
into force, or a ‘statutorily protected tenancy’, which is defined for the purposes
of the Act in section 8. Even when the premises have been ‘let as a dwelling’
the statutorily protected tenant is excluded from protection against eviction
without due process provided by section 3. This provision formed part of the
1977 Act when it came into force and indeed was derived from earlier
legislation. It therefore follows that express provision is made to exclude
from the effect of section 3 of the 1977 Act a series of tenancies within the
ambit of a number of different statutes, including: a protected tenancy within
the Rent Act 1977; a long residence tenancy under Part 1 of the Landlord and
Tenant Act 1954 together with a business tenancy under Part II of the same Act;
a protected ‘occupancy or statutory tenancy as defined in the Rent (Agriculture)
Act 1976; and finally, and most significant for present purposes, ‘a tenancy of
an agricultural holding within the meaning of the Agricultural Holdings Act
1986 (which is a tenancy in relation to which that Act applies)’.
Part II of the 1977 Act, which is
confined to a single section, section 5, creates circumstances in which a
notice to quit shall be ‘invalid’. Like sections 2 and 3, but not section 1, it
applies to premises ‘let as a dwelling’. It therefore has no application to
premises occupied as a ‘residence’ in the general sense identified in section 1
unless the premises so identified have been ‘let as a dwelling’. By further
statutory insertion (to coincide with the concept of an excluded tenancy
inserted by the Housing Act) it is expressly stated not to apply to an excluded
tenancy entered into on or after the Housing Act 1988 came into effect.
Provision was made for regulations to create ‘different provision in relation
to different descriptions of lettings and different circumstances’, but no
relevant regulations have yet been made. Unlike ‘excluded tenancies’ which did
not form part of the 1977 Act as originally enacted and which are expressly
referred to in section 5, section 5 itself is entirely silent about whether it
does or does not apply to the statutorily protected tenancies identified in
section 8, which include the tenancy of an agricultural holding. The question
therefore is whether the exclusion of the tenancy of an agricultural holding
from the ambit of section 3 should lead to the conclusion that the requirements
of section 5 apply to notices to quit an agricultural holding, or indeed any
dwelling which forms part of an agricultural tenancy. Mr Morgan’s prime
submission is that the express exclusion from section 3 of such a tenancy,
coupled with the omission of any appropriate similar reference in section 5,
makes this conclusion inevitable.
Three considerations suggest that the
apparent logic of Mr Morgan’s argument should be approached with caution. If he
is right, section 5 imposes a positive obligation on a landlord of an
agricultural tenancy in relation to notices to quit without using language
appropriate for this purpose. Moreover the foundation for the argument is not
the imposition but the express exclusion of any obligation on the landlord to
take court proceedings before enforcing his right to recover possession of
premises which have been ‘let as a dwelling’ under an agricultural tenancy: in
other words Mr Morgan relies on the deliberate exclusion of one form of obligation
on a landlord of such a tenancy as establishing the existence of another.
Finally as the history of the legislation demonstrates, although identical or
virtually identical provisions relating to notices to quit premises let as a
dwelling were in force prior to the enactment of the 1977 Act the argument
based on the simultaneous inclusion of sections 3 and 8 in the same statute as
section 5 would not then have been available.
On March 30 1977, just four months prior
to the enactment of the 1977 Act, the Agricultural Holdings (Notice to Quit)
Act 1977 received Royal Assent. With immaterial amendments this legislation was
re-enacted in sections 25–30 of the Agricultural Holdings Act 1986. Apart from
a short period immediately after enactment these statutory provisions were in
force simultaneously with the 1977 Act and expressly identified the precise
circumstances in which a notice to quit an agricultural tenancy should be
invalid, as well as the further circumstances in which the operation of such
notices should be restricted. These provisions were specific to agricultural
tenancies, and when first enacted, as the title of the 1977 Agricultural
Holdings (Notices to Quit) Act suggests, they set out and were intended to
provide a comprehensive scheme relating to notices to quit such tenancies. If
Mr Morgan’s submission based on the construction of the 1977 Act were correct
it would mean that parliament, having purported to set out a comprehensive
system relating to notices to quit agricultural holdings, failed to do so. If
he is right the omission is surprising, yet the failure to make any express
provision persisted not only when the provisions in the 1977 Act were
consolidated a few months later, but also when the 1986 Act omitted
straightforward amendments which would have ensured that the purported
comprehensive system was indeed comprehensive, and finally, when the 1977 Act
itself was amended (by the Housing Act 1988), the situation of those employed
in agriculture was expressly covered while the simple language making plain
that section 5 of the 1977 Act applied to agricultural tenancies continued to
be omitted. In my judgment, these omissions cannot be regarded as accidental.
This view is fortified by consideration
of the Rent Act 1977 which came into force simultaneously with the 1977 Act.
Without attempting any comprehensive analysis of its provisions this Act was
concerned with ‘dwelling-houses’ let as ‘separate’ dwellings and expressly
excluded from the ambit of ‘protected tenancies’ tenancies of dwelling-houses
let with agricultural land exceeding two acres in extent (sections 6 and 26)
and dwelling-houses ‘comprised in an agricultural holding … and … occupied by
the person responsible for the control of the farming of the holding’ (section
10). Where tenants were ‘protected’ under this Act by express reference they
fell within the statutorily protected tenancies covered by section 8 of the
1977 Act. Therefore section 3 did not extend to them. However after termination
of a protected tenancy if the tenant continued to use the dwelling-house as his
residence he became a ‘statutory tenant’. In this context express reference was
made to section 5 of the 1977 Act which by section 3(3) of the Rent Act 1977 is
made to apply to such a statutory tenancy. The cross-references between these
Acts and in particular to the ‘notice’ provisions reinforce my conclusion that
the omission of any such reference in the Agricultural Holdings (Notices to
Quit) Act 1977 was not accidental.
The regulations subsequently made under section
5 of the 1977 Act cannot be decisive of its true meaning and effect, but it is
not unhelpful to consider the practicalities involved in section 5 of the 1977
Act and the prescribed notice. Under section 5 itself the notice to quit must
give the tenant ‘not less than 4 weeks notice of the date on which it is to
take effect …’. The information required by the regulations is that the tenant
should be provided with a statement of the legal position that the court must
make an order for possession before the landlord may lawfully evict the tenant.
The tenant must also be advised about the value of obtaining legal advice. The
first of these requirements plainly echoes the provisions in section 3 of the
1977 Act from which, as already observed, a tenancy of an agricultural holding
is excluded. Even if this consideration is irrelevant there remains the second
aspect of the notice, legal advice. This second requirement is unhelpful,
certainly when the notice is served on the basis of non payment of rent within
Schedule 3, Part I, Case D. In such cases the crucial response to a notice
under the Agricultural Holdings Act 1986 is a counternotice, which must be
served within a limited period. In such cases however
the landlord ever becomes entitled to serve a notice to quit. Finally, any
notice to quit an agricultural holding must give 12 months’ rather than four
weeks’ notice. It is accordingly difficult to understand how the protection envisaged
by section 5 adds anything of practical advantage to the tenant of an
agricultural holding who has been served with appropriate statutory notices by
a landlord who is in a position to serve valid notices under the 1986 Act and
who has done so in accordance with the statutory scheme.
Numerous authorities were cited in
argument. Perhaps the most significant result of the analysis by counsel on
both sides of the authorities in which the phrase ‘premises let as a dwelling’
or similar phrases found in various different statutes relating to tenancies,
was to demonstrate the critical importance in each case of focusing on the
specific statutory provision as well as the tenancy under immediate
consideration. It is, in my judgment, sufficient for present purposes to refer
to only three of them. In Maunsell v Olins [1975] AC 373 when
considering section 18(5) of the Rent Act 1968 in the context of agriculture
Viscount Dilhorne said:
The Agricultural Holdings Act 1948
contains a separate code for dealing with agricultural holdings … it would,
indeed, be surprising to me if Parliament, in an Act dealing with housing and
rents, had intended section 41 to apply to agricultural holdings, that no
reference should be made to such a holding.
Lord Wilberforce, with whom both Lord
Reid and Viscount Dilhorne agreed, having commented that:
Most language, and particularly all
language used in rents legislation, is opaque …
added:
Nobody can be unaware that the law
relating to tenancies of agricultural land is one of considerable political
import and delicacy and I am very reluctant to believe that the particular
aspect of this law which relates to subtenancies, treated with evident
circumspection in 1948, would have been dealt with in a general provision such
as appears in section 41 of the Act of 1954.
While acknowledging the force of the
proposition to be found in the then current edition of Megarry, The Rent
Acts, that agricultural holdings were a self-contained code, Lord
Wilberforce was not prepared to approach the construction of the word
‘premises’ in section 18(5) of the Rent Act 1968 as if it were, observing ‘I
think that a particular exception limited in this way would have received
specific legislative mention and this is not to be found’.
In Russell v Booker [1982]
2 EGLR 86, the Court of Appeal considered the problem of a tenancy originally
let as an agricultural holding which was followed by abandonment of such
agricultural use. The holding included a dwelling-house on the land known as
Gladstone House and the tenant agreed to reside in it. Although defined in the
agreement as ‘the premises’ the use of this term was non technical. In due
course the tenant’s daughter, who had resided with him continuously until his
death in 1980, claimed that the tenancy was a protected tenancy (and by an
amendment of the pleadings, a statutory tenancy) within the Rent Act 1977. The
first contention advanced by the landlord was that as the original tenancy was
an agricultural holding it cannot have been or become a protected tenancy. After
the relevant authorities were analysed it was concluded that:
Where the terms of a tenancy agreement
provide for or contemplate the use of the premises for some particular purpose,
then … that purpose is the essential factor in deciding the question whether or
not the house can be said to have been let ‘as a separate dwelling-house’ so as
to fall within the Rent Acts …
The terms of the original … agreement
accordingly remain the essential factor in deciding whether the tenancy was one
under which the dwelling-house was ‘let as a separate dwelling’ within the
meaning of section 1 of the 1977 Act. They show that the tenancy was not of
this nature. A letting of agricultural land exceeding two acres in extent,
albeit together with a dwelling-house, which is intended by both parties to be
a letting for agricultural purposes and to confer on the tenant the protection
of the Agricultural Holdings Acts, is in our opinion quite inconsistent with
the letting of the house as a separate dwelling-house.
When legislation concerned with the same
subject-matter is enacted simultaneously in different statutes it is inherently
unlikely that different principles will apply when an identical or similar
question is under consideration. Mr Morgan submitted that this authority was
concerned with changes in use during the course of a tenancy which are
insufficient to permit the tenant ‘to move the goal posts’ and acquire better
protection at the expense of the landlord. In my judgment, however, it provides
authority for the principle that a dwelling-house which forms part of an
agricultural estate resided in by the tenant does not come within the ambit of
the Rent Act 1977 if at the outset of the tenancy the dwelling-house formed
part of an agricultural holding. Notwithstanding the use of the dwelling-house
as a residence the protection of the Rent Act was not available, even when the
agricultural use of the land as a whole had ceased.
By contrast Dallhold Estates (UK) Pty
Ltd v Lindsey Trading Properties Inc [1994] 1 EGLR 93 concerned the
application of sections 46 and 48 of the Landlord and Tenant Act 1987 to an
agricultural holding. The tenancy included a manor house and a number of
cottages occupied by employees under service tenancies. The tenant failed to
pay due rent. The landlord deployed notice procedures in the 1986 Act. The
tenant challenged the notice on the basis that a notice under section 48 of the
Landlord and Tenant Act 1987 had not been served. While expressly excluding
business tenancies under Part II of the Landlord and Tenant Act 1954 section
46(1) applied to ‘premises which consist of or include a dwelling’ and the
dwelling was defined by section 60 as a ‘building or part of a building
occupied or intended to be occupied as a separate dwelling, together with any
yard, garden, outhouses and appurtenances belonging to it or usually enjoyed
with it’. The Court of Appeal concluded that the 1987 Act was concerned with
housing legislation but it was not possible to conclude ‘that the application
of section 48 to agricultural tenancies’ was not a connected purpose. Given the
express exclusion of business tenancies from the ambit of the Act it was
impossible to conclude that agricultural tenancies were excluded when no such
exclusion was made in respect of them. In the words of Peter Gibson LJ:
… it is simply not permissible to cut
down the meaning of the words in section 46(1) so as to exclude agricultural
holdings.
In the context of the 1987 Act ‘premises’
meant much more than a dwelling in its extended meaning. In effect the language
of the 1987 Act permitted the tenant to enjoy the benefits conferred on other
tenants of premises which consisted of or included a dwelling whether or not
the dwelling formed part of an agricultural holding. However, and
significantly, the court felt able to distinguish Maunsell v Olins
on the basis only of the strict construction of the statute under
consideration.
In my judgment, this decision supports
two principles relevant for present purposes. The first is obvious: if the
language of the relevant statute makes clear the conclusion that a
dwelling-house which forms part of an agricultural holding may be treated
separately from the rest of the holding, then it can and if necessary should be
so treated for the purpose of the relevant statute. Accordingly in such
circumstances the legislation relating to agricultural holdings cannot be
regarded as a self-contained whole. Second, unless the statutory provision
under consideration clearly applies to an agricultural tenancy it should not be
treated as if it does. Nothing in the decision casts doubt on the principle
applied in Russell v Booker, and approached in this way it is
consistent with the observations of the majority of the House of Lords in Maunsell
v Olins. Accordingly, in view of the statutory provisions of direct
relevance in the present appeal, in my judgment, the conclusion to be drawn
from the omission from section 5 of the 1977 Act of express provisions apt to
include agricultural tenancies within its ambit is not that such tenancies fall
within it, but that they do not.
It remains to analyse the nature of the
tenancy in this case. It described itself as an agricultural holding. Express
reference was made to the Agricultural Holdings Act 1948. For the purposes of
the 1986 Act an ‘agricultural holding’ is the aggregate of the land (whether
agricultural land or not) comprised in a contract tenancy which is a contract
for an agricultural tenancy not being a contract under which the land is let to
the tenant for the purpose of his employment or any other appointment by the
landlord. The crucial question is whether the actual or contemplated use of the
land is agricultural. This definition is not on its face apt to describe ‘any
premises let as a dwelling’ within section 5 of the 1977 Act, and it is not
without significance that unlike sections 46(1) and 48 of the Landlord and
Tenant Act 1987 no reference is made in the 1986 Act to premises ‘which consist
of or include a dwelling’. A dwelling-house, or indeed more than one, is a
feature of many agricultural holdings. However a dwelling-house is not an
essential ingredient of every agricultural tenancy. Where the tenancy includes
a dwelling-house it is usual (as in this case) for the tenant to accept a
contractual obligation to live in it, as his residence, and to manage and farm
the holding from it, but not as an employee of the landlord. Whatever is
included in the tenancy, eg dwelling-houses, barns, woods or streams and fields,
the whole represents the agricultural holding. In my judgment, this tenancy of
an agricultural holding included a dwelling-house used as a ‘residence’ within
section 1 of the 1977 Act but the dwelling-house did not amount to premises
‘let as a dwelling’ within section 5. Accordingly the failure to give notices
which complied with section 5 of the Act did not invalidate the notices given
by the landlords and the consequent application of the provisions relating to
the termination of the holding.
Accordingly I should allow this appeal.
BUTLER-SLOSS LJ agreed and did not add
anything.
Appeal allowed.
