Agricultural Holdings Act 1948, proviso to section 2(1)–‘Use of the land only for grazing or mowing during some specified period of the year’–Licence for grazing–Effect of later agreement for stabling ponies–Gratuitous permission or ancillary use–Proviso applied–Appeal from county court dismissed and possession order upheld
This was an
appeal from a decision of Judge Ewart James in favour of the respondents, Avon
County Council, who had claimed possession of certain grazing land occupied by
the appellant under agreements with the respondents. The respondents contended
that the agreements were covered by the proviso to section 2(1) of the
Agricultural Holdings Act 1948. The appellant contended that he had become
entitled under section 2(1) to a tenancy from year to year. The facts are
stated in the judgment of Bridge LJ.
C F Sara
(instructed by Riders, agents for Bobbetts, Harvey & Grove, of Bristol)
appeared on behalf of the appellant; B K Levy (instructed by the Solicitor,
Avon County Council) represented the respondents. The court did not call on Mr
Levy.
Giving the
first judgment at the invitation of Cairns LJ, BRIDGE LJ said: This is an
appeal from a judgment and order of His Honour Judge Ewart James, dated June 4
of last year, sitting at Bristol whereby he ordered that the plaintiffs, the
Council of the County of Avon, should recover possession of land, about half an
acre in extent, forming part of a property known as Beech House, Stover Road,
Yate, in the suburbs of Bristol.
The facts of
the matter are in a very short compass. The plaintiff county council bought
Beech House for the purpose of a future road-widening scheme. Early in 1975 an
officer of the county council discovered that the defendant, without authority,
had de facto occupied the land. The property comprised the house and
curtilage known as Beech House and a separate paddock on which stand certain
outbuildings. Finding the defendant in occupation of the paddock, Mr Bartlett
had a conversation with him, and the result of that was that the county council
then wrote to the defendant offering to grant him a licence to occupy the
paddock. That offer is contained in a letter dated April 7 1975, which reads,
so far as material, as follows: ‘Dear Sir, Grazing Land at Beech House, Stover
Road, Yate. The land shown edged red on the attached plan is available for
grazing cattle, sheep and horses from April 8 1975 to December 30 1975, and if
you wish to take a licence on the undermentioned terms for this period, please
sign the enclosed additional copy of this letter where indicated, and return it
to me together with the consideration of £10.00.’ The undermentioned terms are set out in 11
numbered paragraphs, of which I think I need only refer to a few. The licensee
undertakes the responsibility for the erection and maintenance of stock-proof
fencing, and for the maintenance of fences, gates and ditches. He is to be
responsible for keeping the land clear of thistles and weeds. Then no 7 is
important: ‘This licence shall at all times be construed as a personal
agreement with the licensee for the grazing of animals owned by him and any
other use of the said land or any part thereof shall be a breach of these
conditions and the licensee shall not assign or sublet any of his rights
thereunder.’ And for good measure, by
paragraph 10 it is provided: ‘No agricultural tenancy will be created under the
terms of section 2(1) of the Agricultural Holdings Act 1948.’ A few days after the defendant had replied,
signing his agreement to accept the licence on the terms offered in the letter,
Mr Bartlett returned to the property and had a further conversation with the
defendant, as to which the learned judge in giving judgment made the following
finding: ‘Mr Bartlett had a conversation with the defendant concerning use of the
outbuildings and thought that there was no harm in the defendant using the
outbuildings.’ As a result of that
conversation the county council wrote to the defendant on April 18 1975 a
letter signed by the Director of Estates Services saying: ‘I understand that
arrangements have now been made for you to be granted occupation of the
outbuildings at Beech House in connection with the stabling of ponies.’
The short
point raised in this appeal by the defendant is whether upon those facts the
defendant became entitled to a tenancy from year to year of agricultural land
under the terms of section 2(1) of the Agricultural Holdings Act 1948. That
subsection provides, so far as material:
. . . where
under an agreement made on or after the first day of March, nineteen hundred
and forty-eight, any land is let to a person for use as agricultural land for
an interest less than a tenancy from year to year, or a person is granted a
licence to occupy land for use as agricultural land, and the circumstances are
such that if his interest were a tenancy from year to year he would in respect
of that land be the tenant of an agricultural holding, then, unless the letting
or grant was approved by the Minister before the agreement was entered into,
the agreement shall take effect, with the necessary modifications, as if it
were an agreement for the letting of the land for a tenancy from year to year:
Provided that this subsection shall not have effect in relation to an agreement
for the letting of land, or the granting of a licence to occupy land, made
(whether or not the agreement expressly so provides) in contemplation of the
use of the land only for grazing or mowing during some specified period of the
year. . . .’
Mr Sara’s
submission on behalf of the appellant/defendant is that the language of the
first half of the subsection applies to the licence which was granted to the
defendant because it was a licence to occupy the land for use as agricultural
land, and he submits that the proviso is inapplicable because, by virtue of the
permission granted to the defendant to stable ponies in the outbuildings, the
licence cannot be said to have been made ‘in contemplation of the use of the
land only for grazing or mowing’ within the meaning of that phrase in the
proviso.
In my
judgment, there are two answers to that submission. First, if one looks at the
licence granted by the letter dated April 7 1975, while it is true that the
land edged red on the plan does include the outbuildings in question, the terms
of the licence being limited to the use of the land for grazing and being
subject to the express restriction imposed by paragraph 7, which I have read,
can have no application to those outbuildings, because animals cannot, of
course, graze within outbuildings. Accordingly, the subsequent agreement, using
the word in a non-technical sense, reached following the conversation between
Mr Bartlett and the defendant, and recorded in the county council’s letter of
April 18, granting permission to the defendant to occupy the outbuildings for
stabling ponies, was a purely gratuitous licence, because no additional
consideration other than the £10, which had been required and paid pursuant to
the licence of April 7, was required or paid for the further permission. The
licence to occupy the outbuildings is, therefore, unaffected by section 2 of
the Act because the phrase in subsection (1), ‘where . . . a person is granted
a licence to occupy land for use as agricultural land,’ must clearly be
construed as applying only to
But if, contrary to this view, one assumes, as I will for the purposes of the
remainder of this judgment, that there was a single licence granted to the
defendant on the terms of the two letters of April 7 and April 18 1975, and
that that single licence was a contractual licence to which, subject to the
proviso, subsection (1) of section 2 applied, nevertheless, this is clearly a
case where the licence is taken out of the operation of the section by the
terms of the proviso.
Mr Sara
accepts, and in my judgment rightly accepts, that a use of buildings permitted
by the terms of a licence to occupy land in contemplation of the use of the
land for grazing only, which was purely ancillary and incidental to the use of the
land for grazing, would not take the licence out of the ambit of the proviso.
The question therefore is whether it was ever in the contemplation of the
parties to this licence that the defendant should have the use of the
outbuildings for purposes other than such as were incidental and ancillary to
the use of the land for grazing. The onus on that issue, it seems to me, lay
upon the defendant and was not discharged. Even if the onus had been the other
way, the evidence suggests that what was in the contemplation of the parties
was the use of the outbuildings for purposes incidental to the grazing of the
land and nothing more.
Mr Sara
advances two arguments to seek to controvert that conclusion. He says, first,
that the outbuildings were extensive. The evidence does not disclose their
nature or size, but Mr Sara relies on what one can see from the plan attached
to the letter of April 7 1975 and he says that they would have provided very
much more stabling accommodation than was necessary for one pony, and the
evidence showed that one pony was all the land was sufficient to support. He
relies, in particular, upon the use of the word ‘ponies’ in the plural, as
opposed to ‘pony’ in the singular, in the letter of April 18 1975. I am quite
unable to accept that argument. There seems to me to be nothing in the evidence
here to indicate that the county council had in contemplation anything other
than a reasonable permission granted to the defendant to use the buildings in
connection with the grazing of any animal for the time being on the land. That,
I think, is the finding which the learned judge intended to make as expressed
in his judgment when he said: ‘The fact that the use of the outbuildings was
subsequently granted does not in my view prevent it being a licence (meaning
thereby a grazing licence) because the use of the buildings was in connection
with use as a licence.’ Secondly, Mr
Sara says that it is not open to the court to take that view because before
occupation of buildings by animals could properly be regarded as ancillary to
the use of land for grazing it would be necessary for the evidence to show that
that occupation of the buildings was essential or required as a matter of
practical farming to support of that proposition he relied upon a dictum of the
late Ungoed-Thomas J in the case of Lory v Brent London Borough
Council [1971] 1 WLR 823, at p 829 to this effect: ‘The proviso,
however’–and he is referring to the proviso to section 2(1) of the Agricultural
Holdings Act 1948–‘is directed to contemplation of ‘the use’ of the land. Such
matters as fencing and shelter for the grazing animals may be essential or
required as a matter of practical farming to enable the animals to be grazing
on the land; and such fencing and shelter might then be ‘use of the land for
grazing only.” I am sure that the late
Ungoed-Thomas J would have been horrified if he had thought that his, if I may
say so respectfully, perfectly sensible and proper observation in the course of
giving judgment in that case were to be taken as having the force of statute
and providing an exhaustive definition of what can or cannot be regarded as use
of buildings incidental or ancillary to the use of land for grazing only, when
the question of the application of the proviso to section 2(1) is in dispute.
For those
reasons, I think the learned judge came to the correct conclusion on the
evidence, and I would dismiss the appeal.
Agreeing,
ROSKILL LJ said: I agree that this appeal should be dismissed. Manifestly this
case does not fall within section 2 of the Agricultural Holdings Act 1948.
Also agreeing,
CAIRNS LJ said: For my part, I am clearly of opinion that the letter of April
18 1975 granted no more than a gratuitous permission for the use of the
outbuildings and was not a contractual licence or a variation of the original
licence, there being no consideration for any such variation. But if I am wrong
about that, then I agree that the contemplated use of the outbuildings under
the letter of April 18 1975 was purely ancillary to the use for grazing. Stress
was laid by Mr Sara on the use of the plural word ‘ponies’ in the letter of
April 18. It may be noticed that the original licence of April 17 granted a
licence ‘for the grazing of cattle, sheep and horses.’ In those circumstances, it was natural to use
the word ‘ponies’ in the later letter. Accordingly, I agree that the appeal
should be dismissed.
The appeal
was dismissed, the respondents to have an order for costs against the
appellant, such order not to be enforced without further order of the court.
The court referred to the registrar of the county court the investigation of
the appellant’s means under Regulation 20(2)(b) of the Legal Aid (General)
Regulations 1971.
