Botterill and another v Bedfordshire County Council

Landlord and Tenant Act 1954, section 30(1)(f) — The tenants of a 4-acre site without buildings were an unincorporated association (a local gun club) — On the termination of their annual tenancy by a notice to quit they sought a new tenancy under the 1954 Act — The application was opposed by the landlords in whom the reversion had become vested, the county council, on the ground set out in section 30(1)(f) of the 1954 Act — The landlords, who were engaged in a programme of ‘infilling’ as a means of getting rid of commercial and industrial waste, proposed to remove topsoil and clay from the site, to fill the excavated space with refuse, and then to cover it with a fresh layer of clay and topsoil and to plant trees — The question which arose was whether these operations came within the matters mentioned in para (f) of section 30(1) — Did the landlords’ proposals involve demolition, reconstruction or substantial work of construction? Held, upholding a decision of an assistant recorder sitting at Bedford County Court, that the work which the landlords intended to carry out, which would result in a field with a slightly domed shape and some alterations in the subjacent composition, did not fall within para (f) — Meaning of ‘construction’ discussed — Appeal by landlords against assistant recorder’s decision in favour of tenants dismissed

This was an
appeal by the landlords, Bedfordshire County Council, from a decision of Mr
Assistant Recorder JMG Roberts, sitting at Bedford County Court, in favour of
an application by the tenants, Terence Victor Botterill and Mavis Cheshire,
suing on their own behalf and on behalf of the committee and members of the
Bedford and District Gun Club, under Part II of the Landlord and Tenant Act
1954. The land which was the subject of the proceedings comprised 4 acres of
former brick pits in Elstow, Bedfordshire.

Stephen
Hockman (instructed by RFK Corder, County Secretary and Solicitor, Bedfordshire
County Council) appeared on behalf of the appellants; THK Berry (instructed by
CC Bell & Son, of Bedford) represented the respondents.

Giving
judgment, SIR JOHN ARNOLD P said: This is a case which raises a question of
construction of section 30 of the Landlord and Tenant Act 1954; in particular,
a question of construction of that part of paragraph (f) of subsection (1)
which deals with works of construction.

The history of
the matter is simplicity itself. In 1954 the London Brick Company Ltd, which
was then the owner of a parcel of 4 acres situated in Elstow, Bedfordshire,
formerly used as brick pits, let the land and its contents to an unincorporated
association, the Bedford Gun Club, who are the respondents to this appeal.

There are no
significant buildings of any sort on the land, and we are told that the case
may properly be dealt with by ignoring what small amount of construction work
has been done on the land in the sense of building. So it can be treated as a
site without buildings or erections on it. Therefore, that part of the
paragraph which deals with a landlord’s intention to demolish or reconstruct
premises comprised in the holding can be ignored.

In due course,
notice was given under a provision in the tenancy agreement to bring to an end
the tenancy from year to year which had been created by the original demise. A
counternotice was given by the occupants of the land, the gun club, who in due
course brought the appropriate proceedings for a new lease. Thus it was that
section 30(1) came into play.

The appellants
intend to carry out on the land — and there is no dispute as to the genuineness
of their intention — certain works which were described by the learned judge
accurately in his judgment as follows: ‘Excavation and removal of the existing
topsoil and clay to a depth of about 5 metres (this material would then be
placed on top of the waste already deposited on the adjoining site).’ In fact,
I do not think it matters in the least, but the cross-section shows an
intention to remove rather more than 5 metres; perhaps 7 or 8 metres of the topsoil,
and the reference to the waste already deposited on the adjoining site is a
reference to the current state of affairs in the land immediately adjoining the
site in question. The county council is carrying out a progressive infilling
system as a means of getting rid of commercial and industrial — perhaps
domestic — waste. A natural progression of this work would be to extend the
operation into the site in question, and that explains the reference in the
words ‘already deposited on the adjoining site’. The description goes on:
‘Depositing fresh waste on the land, to a level some 4 metres above the
existing surface level; replacing fresh clay and topsoil over the waste, and
planting trees’. That, it is said on behalf of the county council on this
appeal — in my judgment rightly — is a single operation, a single series of
operations, to which they are entitled to have regard as a unit of intention.
Later on, rather more succinctly, the learned judge says that they propose to
remove the topsoil and clay, to fill the excavated space with refuse, and to
cover this with a fresh layer of clay and topsoil. He might have added trees.

Now, the
section, in its relevant subsection, (f), permits the landlord to oppose the
tenant’s application for a new lease on the ground:

that on the
termination of the current tenancy the landlord intends to demolish or
reconstruct the premises comprised in the holding or a substantial part of
those premises or to carry out substantial work of construction on the holding
or part thereof and that he could not reasonably do so without obtaining
possession of the holding.

There is no
doubt that the last part of the condition is fulfilled, and all that this
landlord has to do is to demonstrate the relevant intention.

Originally the
case was put under all three elements in the condition as to intention. As the
learned judge said, ‘The applicants’ — that is to say, the gun club — ‘say that
all three of these things are concerned in one way or another with something on
the land’; that is to say, demolition, reconstruction and carrying out
substantial work of construction. Demolition, they say, is taking down
something that is already on the land; reconstruction is reconstruction of
something which is already on the land; and carrying out substantial work of
construction is constructing something on the land which was not previously
there. On the other hand, the county council argue that ‘to carry out
substantial work of construction on the holding or part thereof’ is an
expression wide enough to cover anything which can be described as construction
work in the ordinary engineering sense; and a great deal of the hearing of this
appeal has been occupied by a consideration of what can be described as
construction work in the ordinary engineering sense.

The learned
judge thought it was necessary to consider separately reconstructing on the one
hand and carrying out substantial work of construction on the other. In
relation to the first part of it, reconstructing, he said this:

During the
course of argument I raised the question whether it could be said that the
county council were proposing to reconstruct the land in the sense that they
are proposing to remove the existing clay and topsoil and to replace it with
waste and fresh clay and topsoil. Mr Berry’s answer to this is

Mr Berry was
appearing for the applicants

that you
cannot sensibly speak of ‘reconstructing’ something that was never
‘constructed’ in the first place, and that you cannot therefore ‘reconstruct’
the land itself. He argues that the whole of section 30(1)(f) is concerned with
things that can be said to be constructed on the land, such as buildings,
roads, runways, bridges, dams, etc.

Then he says
that the solicitor who was appearing for the county council [Mr J A Kerce] was
inclined to agree with Mr Berry’s argument that you cannot ‘reconstruct’
something unless it was ‘constructed’ in the first place. The learned judge
says Mr Berry had been right and Mr Kerce was right to agree with him. Then he
referred to a passage in Housleys Ltd v Bloomer-Holt Ltd [1966] 1
WLR 1244, in the judgment of Diplock LJ (as he then was), when he said at p
1252:

It is, I
think, plain, on the true construction of paragraph (f), that ‘the premises’
there referred to must be limited to that part of the holding which is capable
of being demolished and capable of being reconstructed.

So there one
finds a general agreement, in my judgment, that there has to be something that
was constructed if it is to be reconstructed. If construction consists of no
more than the carrying out of some operation on the land, involving the putting
together of more than one thing (and, if necessary, including a plan or design
as to what the thing should look like at the end of the day), then it is very
difficult to see why the argument which received the accolade of the learned
lord justice and the acceptance at any rate by the county council was correct
at all, unless one happened to know how it was that the land reached its
existing condition, because quite plainly the existing contour of the land is
the result of the extraction of the brick clay. If anything more was done than
merely digging out, any attempt was made to reshape or grass or otherwise
improve the appearance of the land at the end of the operation, if
‘construction’ means anything wider than the provision by building or erection
of some new structure on the land, it was already constructed land and
therefore would be capable of reconstruction. But that does not seem to have
occurred to anybody.

Then the
learned judge goes on to consider what is the prime matter with which he was
concerned, namely, what is a substantial work of construction. He points out
that counsel for the county council said that what they intended to do — and
indeed counsel for the appellants before us said that what they intend to do —
is to carry out substantial work of construction on the holding.

Then one comes
to the argument which prevailed, which is thus described:

Mr Berry
argues, as I have already indicated, that the whole of section 30(1)(f) is
concerned with things constructed or to be constructed on the land, such
as roads, runways, bridges and dams.

The word ‘on’
is provided with an emphasis, and counsel for the appellants says that is to
distinguish it from ‘in’. My understanding is that it is to distinguish it from
the conception of work ‘to’ the land being construction work. It seems to me,
reading that passage, that ‘on or in’ would have been just as convenient a way
of expressing the judge’s intended expression of thought as the word ‘on’
alone. If what was being contemplated was an underground chamber, or anything
else of the sort, it would have been, in the judge’s mind (or in Mr Berry’s
mind at that stage, because it is later on that the judge accepted it), just as
much a construction on the land as a building which had not been built into the
land, but built merely on foundations near to but still in the top of the land.

The learned judge,
having stated Mr Berry’s argument in that way, goes on thus: ‘What is it that
the respondents propose to do in this case?’ Then he gives the shorter
definition that I have already read as to what they propose to do, and
continues:

I have to
form a view of what Parliament intended in the paragraph. I do not think that
Parliament intended to include the type of work which the county council
propose to carry out here. I think that Mr Berry is right in submitting that
‘to carry out substantial work of construction on the holding or part thereof’
involves the actual construction of something (whether it be a building or a
road or whatever) on the land;

and that is
what the learned judge gave effect to by deciding the case in favour of the
applicants.

Now, it seems
to me that, in construing the words ‘work of construction’ in this section, one
must construe the words in the manner most convenient and apt to fit into the
context in which the words appear in the statute. We have been offered, and
helpfully offered, two dictionary definitions. In the Oxford English
Dictionary one finds the word ‘construction’ defined first of all as ‘the
action of framing, devising, or forming, by the putting together of parts’.
That involves bringing within the conception something capable of being framed,
devised or formed. Those are not words which are usually or conveniently
applied to what at the end of the day is intended to be a field, with some
trees in it, with a lightly domed contour.

The next
alternative offered is ‘erection, building’. That seems to me to be the one
which is most convenient to import into this section to give it the natural
meaning that one would expect; and that is very much what the learned judge has
adopted, slightly extending the ordinary conception of ‘erection’ or ‘building’
to works built upon the land, even though themselves not often or conveniently
described as a building, such as a concrete platform or a road.

Then one has a
rather more abstract conception: ‘the art or science of constructing; the
manner in which a thing is constructed or formed’. It is the ‘work of
construction’ which is under consideration as a composite phrase and, as
counsel says — I think rightly — one is entitled to assist oneself with the
interpretation of that phrase by looking at the definition of the word
‘construct’, because the work of construction is really the work which is done
when one constructs. If one looks at that, what does one find? — ‘to
make or form by fitting the parts together; to frame, build’, again more
conveniently used to describe the bringing into existence of some structure
than the altering of the shape or, to some extent, the composition of a field.

Chambers’
Dictionary throws up very much the same sort of
result. Under ‘construction’ one has: ‘the act of constructing anything piled
together; building’; and the word ‘construct’ is: ‘to build up; to compile; to
put together the parts of; to make; to compose’. If one said ‘What is it that
the county council intends to construct?’, what would the answer be? For my
part, I think it would be that they do not intend to construct anything; they
are merely altering, by putting waste in the middle and some topsoil and grass
on the top, the shape of it, and giving a slightly new composition to this
field. But for them to say ‘We intend to construct a domed field with some
trees’ seems to me to be language of a most artificial kind.

When one reads
— there is not very much to read — the authorities, it seems to me the learned
judge was right in relying on what Diplock LJ said in the case of Housleys
Ltd v Bloomer-Holt Ltd [1966] 1 WLR 1244, in the Court of Appeal, as
being helpful to his act of interpretation. It seems to me that if a field
which is unaffected by the erection of any structure or building is incapable
of being reconstructed because it does not itself represent a construction, one
has a valuable clue to the meaning of the phrase, because it would be an
extremely artificial and capricious result, if the opposite would obtain, if
that field had happened to be deliberately seeded with grass seed, or had been
ploughed and sown with some other crop. If one is to take as the proper
interpretation of ‘construction’ the act of putting things together, or to use
the word ‘construct’ as a verb to describe putting things together, one has an
entirely speculative result in distinguishing between two things which are not
inherently different for the purpose of construing a workaday statute; and
that, in my view, would be a wrong way to construe it. Nor would that be helped
if one added to the conceptual definition the requirement that there should be
a plan or design to work to, because if one envisages a case in which land is
turned over and planted with a pasture crop, or something similar, in order to
conform to what is thought to be an amenable landscape effect, taken in
conjunction with the neighbouring hedges and trees, the result is merely
speculative and no less capricious.