Agricultural holdings — Grazing agreement — Whether restriction to specified period of year — Whether simultaneous grazing of ponies for pleasure outside meaning of agricultural land
Until he died
on December 26 1987, Sir Douglas Howard lived at Clophill House, Clophill,
Bedfordshire, a property which included a paddock of just under 2 acres. In
about 1973 Sir Douglas made an agreement with the plaintiff for the use of the
paddock for grazing. The defendant, who purchased the property from Sir
Douglas’ executors, claimed that the agreement was in ontemplation of the use
of the paddock for grazing only during the period of approximately 10 months
from May to March each year when the daffodils were not in bloom, and was
therefore within the proviso in section 2(3)(a) of the Agricultural
Holdings Act 1986; the plaintiff therefore did not have the protection of the
Act. The evidence was that the plaintiff did not graze his cattle between March
and May each year, although he grazed a mare on the property throughout the
year which was kept for the enjoyment of his children until she died in 1982.
The plaintiff contended that the agreement was to graze for the whole of each
year.
protected by the Agricultural Holdings Act 1986 was granted. It was a term of
the agreement that the plaintiff would not graze cattle during the daffodil
season and this restriction did not extend to ponies. Although the mare was
used for pleasure and not for any trade or business, the paddock was let to the
plaintiff for the purposes of a business and its simultaneous pleasure use did
not take the agreement outside the definition of agricultural land in section
1(4)(a) of the 1986 Act.
The following
cases are referred to in this report.
Reid v Dawson [1955] 1 QB 214; [1954] 3 WLR 810; [1954] 3 All ER
498; (1954) 53 LGR 24, CA
Scene
Estate Ltd v Amos [1957] 2 QB 205; [1957] 2
WLR 1017; [1957] 2 All ER 325; (1957) 56 LGR 14, CA
Watts v Yeend [1987] 1 WLR 323; [1987] 1 All ER 744, CA
This was the
hearing of an originating summons of the plaintiff, Colin Brown, for a
declaration that he held an agricultural tenancy of land at Clophill House,
Clophill, Bedfordshire, belonging to the defendant, Mr Tiernan.
Peter
Cranfield (instructed by Park Woodfine, of Bedford) appeared for the plaintiff;
Richard Bray (instructed by E T Ray & Co, of Bletchley) represented the
defendant.
Giving
judgment, MR J SUMPTION QC said: Sir Douglas Howard, a retired diplomat,
lived for many years at Clophill House, Clophill, Bedfordshire, until he died
on Boxing Day 1987. Sir Douglas’ property included, in addition to the house
and its garden, a paddock of just under 2 acres, which lay beyond the garden
separated from it by an iron grill and railings. Mr Colin Brown is a local farmer.
He claims that in the spring of 1973 Sir Douglas let the paddock to him from
year to year for keeping livestock and that he thereby became the tenant of an
agricultural holding for the purposes of the Agricultural Holdings Act 1986.
The question in this action is whether he is right. If he is, then it is not
disputed that his rights bind the defendant, Mr Tiernan, who bought the house
and its adjoining land from Sir Douglas’ executors in July 1988.
Disregarding
immaterial provisions of the Act, what Mr Brown has to show in order to make
good his claim is that he was the tenant under ‘a contract for an agricultural
tenancy’: section 1(1). For that purpose two relevant conditions must be
satisfied. First, the land must be let for use as ‘agricultural land’: section
1(2). This means ‘land used for agriculture which is so used for the purposes
of a trade or business’: section 1(4)(a). ‘Agriculture’ includes
grazing: section 96(1). Second, the letting must be ‘for a term of years or
from year to year’: section 1(5). The tenant is assisted in satisfying the
second of these requirements by section 2 of the Act, which provides — in
substance — that a licence or letting for less than a year shall take effect as
if it were an agreement to let the land for a tenancy from year to year. There
is, however, an important proviso to section 2, which is contained in
subsection 2(3)(a). That reads:
This section
does not apply to an agreement for the letting of land, or the granting of a
licence to occupy land . . . made (whether or not it expressly so provides) in
contemplation of the use of the land only for grazing or mowing (or both)
during some specified period of the year.
The effect of
the proviso is that, if a licence or tenancy is granted in contemplation of the
use of the land for grazing for a period of less than a year or for successive
periods of less than a year, then the agreement is not a ‘contract of tenancy’
because on that footing it will not be an agreement for letting land for a term
of years or from
such an agreement: see Reid v Dawson [1955] 1 QB 214 and Scene
Estate Ltd v Amos [1957] 2 QB 205.
The proviso in
section 2(3)(a) refers to the contemplated use of the land. In Scene
Estate v Amos [1957] 2 QB 205 at p 211, Denning LJ (as he then was)
explained this as follows:
. . . In my
opinion the object of the word ‘contemplation’ in the proviso is to protect a
landlord who has not expressly inserted a provision that it is for grazing
only, or for mowing only, or that it is for a specified part of a year; but,
nevertheless, both parties know that that is what is contemplated. Often a
landlord may let a field to a man by word of mouth, saying: ‘You can have the
field this year the same as you had it last year’. Both sides mean it to be for
grazing only and mean it to be only for a few weeks of the spring, but they do
not say so expressly. In such circumstances, even though nothing is expressed
in the agreement, nevertheless the landlord can still take advantage of the
proviso. That seems to me to be the real object of introducing the
‘contemplation’ of the parties.
It has not
been disputed, and is in any event plain from the evidence, that Mr Brown did
make an agreement with Sir Douglas Howard in about 1973, which allowed him the
use of the paddock for grazing in consideration of a small rent, initially £10
per year, subsequently increased to £20 and then to £25. The question at issue
is whether that agreement was made in contemplation of the use of the paddock
for a period of less than a year or successive periods of less than a year.
The defendant’s
case is that the agreement between Sir Douglas and Mr Brown contemplated the
use of the land for grazing only during the period of approximately 10 months
from May to March of each year when the daffodils in the paddock were not in
bloom. Mr Brown denies that there was any limitation on his use of the paddock
in the daffodil season.
The primary
submission of Mr Bray, who appeared for the defendant, was that any agreement
which contemplated the use of land for grazing necessarily contemplated that
use during a period less than a year because grazing is of its nature a
seasonal activity. This was put to me as a proposition of law, based on the
decision of the Court of Appeal in Watts v Yeend [1987] 1 WLR
323. However, all that I can extract from that case is that where it is proved
on the evidence that land has been let for a season or for some period less
than a year, the proviso applies notwithstanding that the parties have not
agreed precisely when the season or period is to begin and end. What is contemplated
by parties to an agreement of this kind seems to me to be a question of fact.
The evidence which I have heard suggests that land let for grazing may be
grazed at any and all times of the year, depending on the hardiness of the
animals in the winter months and on their numbers and appetite in relation to
the area of grass. This dispute, therefore, turns on what Sir Douglas Howard
and Mr Brown agreed or contemplated in 1973 and during the following years when
Mr Brown used the paddock.
Since Sir
Douglas and Mr Brown were the only persons present when the original agreement
was made and Sir Douglas is dead, the only evidence of it was Mr Brown’s. I
approach his evidence with some caution. This is partly because it is always
right to test rather carefully evidence which is given many years after the
event when one party is not available to give his side of the story, and it is
partly because Mr Brown struck me as a witness who was apt to state his case
more dogmatically and with a greater wealth of circumstantial detail than his
recollection really permitted. This was particularly evident when he was
dealing with matters which he regarded — rightly or wrongly — as weak points in
his case.
I find that
what happened was as follows. Sir Douglas Howard was, as all the evidence has
shown, an extremely keen gardener. Because of the position of the paddock, the
view of it was an important feature of his garden. One of the high points of
the gardening year at Clophill House was the daffodil season. The daffodils, which
were densely planted at the near end of the paddock, were a spectacular sight
in March and April, and friends and relations of Sir Douglas would come
specially at that time of year in order to see them. They were Sir Douglas’
‘pride and joy’ as his cousin, Mrs Allen, told me. Grazing cattle during the
flowering season is liable to damage the plant, for although the cattle do not
eat daffodils, they tend to trample over them. Grazing horses or ponies is
apparently less damaging. It was therefore important to Sir Douglas that if
livestock were put into the paddock during the daffodil season, they should not
be cattle.
Until 1971,
the paddock was used for grazing cattle by a Mr Palmer. I do not know what the
precise terms were of his agreement with Sir Douglas — they are both dead — but
Mr Palmer’s son, Mr Donald Palmer, who assisted his father told me that in
those days cattle were never put into the paddock during the daffodil season
because Sir Douglas would not have permitted it. In 1971, Mr Palmer senior gave
up beef production and no longer needed the paddock. So Mr Palmer junior spoke
to Mr Brown and asked him whether he would like it. When Mr Brown replied that
he would, Mr Palmer took him to see Sir Douglas’ caretaker and gardener, Mrs
Izzard. There was then a long delay of at least a year, after which Mr Brown
received a summons to go and see Sir Douglas at Clophill House to discuss the
matter.
According to
the oral evidence of Mr Palmer, but not his written statement, when he first
spoke to Mr Brown about the paddock he told Mr Brown that he would not be
allowed to put cattle into the paddock during the daffodil season. Mr Brown,
although he remembered discussing the paddock with Mr Palmer, denied that he
had been told anything about the daffodil season or about any restrictions on
his rights to graze the land when the daffodils were in bloom. He said that at
the time when he approached Sir Douglas about the paddock, he did not yet know
that the daffodils existed. He had never seen the paddock and knew nothing
about it; he had received no information about it from Mr Palmer. Moreover,
although it was spring, he believed that he saw no daffodils in flower when he
visited Sir Douglas and that he would have remembered seeing them if they had
been out. I do not accept that evidence. I find that when Mr Brown went to
visit to Sir Douglas in the spring of 1973 to discuss taking the paddock, he
knew that he would not be allowed to graze cattle there during the daffodil
season because Mr Palmer junior had told him so.
Mr Brown’s
evidence of his agreement with Sir Douglas was that he told Sir Douglas that he
wanted to use the paddock for grazing ponies and some small cattle, and that
Sir Douglas agreed to let him have it for that purpose at a rent of £10 per
year. I accept that much of Mr Brown’s evidence about the exchange. It is
consistent with all that subsequently happened. Mr Brown also told me that
there was no mention of daffodils nor of any restriction on his right to use
the paddock at any time of year. I do not accept that part of his evidence. I
can summarise my reasons quite shortly. Mr Brown acknowledged that Sir Douglas’
main interest in letting or licensing the use of the paddock was that the
arrangement would make his garden more attractive. The paddock had become very
overgrown since Mr Palmer had left and an attempt had been made to mow it by
machine which had failed. Sir Douglas wanted the long grass kept down. He also
liked to look out from his windows at the pastoral sight of cattle and horses on
the land beyond his garden. This is apparent from Mr Brown’s own evidence.
An important
part of the amenities of Sir Douglas’ garden was the view of the daffodils in
spring. Mr Palmer had at some stage accepted restrictions on the grazing of
cattle during the daffodil season, and I find it extremely improbable that
similar conditions were not imposed from the outset on Mr Brown. Moreover, when
Mr Brown began to use the paddock he never, in practice, did graze cattle there
during the daffodil season. He told me that this was because his ordinary
practice and the common practice of farmers of the district was not to put his
cattle out for grazing until the first week of May, when the daffodils were
over anyway. But he did accept that even if he had for some reason needed to
graze cattle in the paddock during the daffodil season, he would not have done
so because he realised that Sir Douglas would not have wanted him to.
Mr Brown
suggested that he drew this conclusion for himself, entirely unprompted by Sir
Douglas. I find that he drew it because Sir Douglas had told him so at their
first meeting. I accept that that conclusion is at variance with the only
direct evidence which I have heard on the subject. However, I do not regard Mr
Brown’s recollection as sufficiently reliable to outweigh the circumstantial
evidence and the strong inherent probabilities. Moreover, I am satisfied that
even if it had not been discussed in terms, it was contemplated by both parties
that whatever use was made of the paddock would be consistent with the
wellbeing of the daffodils and that meant keeping cattle out of the paddock
during their flowering season.
There remains
the question of the ponies, which is important for a reason that I shall come
to. Ponies seem to have been a lesser threat to daffodils. Moreover, it is
plain from the evidence of all the witnesses — except one — that Mr Brown did,
in fact, keep a mare and, from time to time, her foals in the paddock from 1973
until the mare died in
season, except for short periods when she was taken out for some special
reason. Sir Douglas was perfectly capable of protesting when he was displeased
at the use which was being made of his paddock. But it does not appear that he
ever did protest at this particular use. I think that it is probable that Sir
Douglas’ reservation about the presence of animals in the paddock during the
daffodil season was in terms confined to cattle and did not extend to ponies.
However, even if that were not the position, then there can be no doubt that
within a year or two Sir Douglas had accepted that the use of the paddock by
the mare would be allowed throughout the year.
In the result,
I find that the use which Sir Douglas and Mr Brown contemplated for the paddock
was that livestock might be grazed there throughout the year, except that
during the period when the daffodils were in flower the livestock should not
include cattle or other animals liable to damage the flowers. Nothing was said
about the term of the arrangement. But it was implicit in Sir Douglas’
acceptance of an annual rent that the arrangement, whether it was technically a
tenancy or a licence, would continue from year to year.
I now return
to the Act. If the agreement between Sir Douglas and Mr Brown had been confined
to the grazing of cattle, it would, in my judgment, have been excluded from the
Agricultural Holdings Act 1986 by the proviso in section 2(3). On that footing
the only permitted user would have been grazing for a specified period of the
year — namely the period of 10 months or so when the daffodils were not in
flower. However, the agreement was not limited in that way, as I have found. Mr
Brown was permitted to use the paddock for grazing at any time of the year,
provided that cattle were not in the paddock during the daffodil season.
The
defendant’s riposte to this point is to say that the use of the paddock by the
mare and her foals is irrelevant. The reason is that the cattle, which were
part of Mr Brown’s farming stock, were used for the purposes of his business as
a farmer, whereas the mare and her foals were not used for any trade or
business purpose, but for Mr Brown’s children. Section 1(4) of the Act
provides, it was suggested, that the only relevant user is for trade and for
business purposes. Mr Brown does not dispute the relevant facts. He accepts
that the mare and her foals were used for pleasure and not for business. But
those facts are, in my judgment, irrelevant in law.
The
requirement of the Act that the land should be used for the tenant’s trade or
business is part of the definition of ‘agricultural’ land. By section 1(2) an
agricultural holding must relate to ‘agricultural land’. However, this
requirement is satisfied if the land is let for the purposes of a trade or
business, notwithstanding that it is simultaneously used for another purpose,
such as keeping a mare for pleasure, or, for that matter, growing wild flowers
for pleasure. The fact that there is a period during the term of the letting or
licence when the land — although still let or its use still licensed — will not
be used for both business and pleasure, but used only for pleasure, makes no
difference unless either: (i) the business purpose is relatively so minor that
it can no longer be regarded as the purpose of the letting or licence; or (ii)
the agreement can be regarded as two distinct agreements, one relating to
business use and the other relating to other use. Neither of these points could
be made in the circumstances of this case. Mr Brown was let into the land to
use it for the purposes of his farming business albeit that he might use it for
other purposes also. The paddock was, in fact, so used thereafter. It was,
accordingly, in Mr Brown’s hands ‘agricultural land’.
Once that
point is reached, the limitation in section 1(4) to use for the purposes of a
trade or business has no further relevance. The question posed by section 2(3)(a)
is a different question which arises only once it is shown that the land was
‘agricultural land’ and therefore capable of being the subject of an
agricultural holding. It is then necessary to ask whether the contemplated use
of the land was ‘only’ grazing or mowing or both during some specified period
of the year. If it was more than grazing or mowing, or if it was grazing or
mowing for a year or more, the proviso does not apply. Trivial or insignificant
use may be disregarded.
This is not a
case — such as those which have given rise to the reported decisions — in which
the tenant was allowed into possession simply for a limited period of grazing
at a time and then went out of possession until the next season. Mr Brown was
in occupation of the paddock throughout the year. The mare and her foals were
visible signs of his continuing occupation, notwithstanding that the daffodils
were in bloom and the cattle were elsewhere. If a tenant is permitted to use
the land for the whole year, and is permitted to use it for other purposes when
it is not being used for grazing, it can no longer be said that the contemplated
user of the land is ‘only’ for grazing during a part of the year. Where, as in
this case, some grazing continues throughout the year, albeit by different
animals some of which were not used in the tenant’s business, it must be
clearer still that the proviso has no application.
I do not
imagine that Sir Douglas Howard intended to create an agricultural holding on
land which was, in a sense, an extension of his garden and, indeed, had to be
reached through it. However, Sir Douglas was not a lawyer and he does not
appear on this occasion to have taken legal advice. He no doubt relied on his
personal relationship with the users of his paddock in order to solve whatever
problems might arise. In my judgment, he reached an agreement with Mr Brown the
legal result of which was to create an agricultural holding, whether he
realised it or not. Subject to counsel’s submissions on the form of the order,
I shall therefore make the declaration which the plaintiff seeks.
Declaration
accordingly.
