Agricultural holdings — Land of slightly less than one acre containing cowshed and other buildings — Whether notice to quit given in reliance on Case B in section 2(3) of the Agricultural Holdings (Notices to Quit) Act 1977 (now Case B in Schedule 3 to Agricultural Holdings Act 1986) was valid — Appeal by tenant from decision of county court judge holding that the notice was valid and terminated the tenancy of the holding — There had been previous litigation under the Landlord and Tenant Act 1954, which established that the land in question was an agricultural holding
facts in the present case were as follows — The notice to quit, expressed to be
pursuant to Case B, required the tenant to give up possession of ‘all that
holding and premises known as the old cow shed and buildings at the rear of
Wentloog Castle’ — The notice stated that the land was required for a use other
than for agriculture for which permission had been granted under the enactments
relating to town and country planning, namely, ‘for conversion of existing agricultural
building into three-bedroomed dwelling at the building at the rear of Wentloog
Castle’ — Within a month after the service of the notice to quit the tenant
served a notice requiring the question to be determined by arbitration, the
relevant issue being whether a valid planning permission had been granted and
whether such alleged permission related to the holding, the subject of the
tenancy, or any part thereof — The tenant, however, failed to make an
application for the appointment of an arbitrator within three months after the
date of service of that notice (as required by the relevant subordinate
legislation) — It was conceded that, as a result of this failure, the tenant
was not entitled to contest any question relating to the reasons stated in the
notice to quit
county court judge the tenant contended that as a matter of construction the
notice to quit was bad for uncertainty or because it related to a part only of
the holding — It was also contended that the ineffectiveness of the demand for
arbitration did not preclude a submission that the notice to quit was invalid
at common law — The landlord argued that the notice to quit was a valid notice
to quit the whole of the land subject to the tenancy and that, as the demand
for arbitration had failed, the notice to quit must be treated as unassailable
— The judge rejected the tenant’s submissions and held the notice to quit valid
— The tenant appealed
fundamental matter, which had been canvassed before the county court judge, was
not raised on appeal, namely, whether, as the arbitration procedure had not
been used, the tenant was entirely prevented from challenging the notice to
quit, no alternative method or forum being permissible — The court mentioned
but did not discuss this point for reasons stated in the judgment of Stocker LJ
— The main argument submitted by the appellant was that a Case B notice would
be effective only if the land in respect of which planning permission was given
were identical with the land comprised in the notice to quit — Here, it was
said, there was a lack of such coincidence, the plan attached to the planning
permission showing a smaller area than that covered by the notice to quit, the
former being in effect the site plan of the proposed alterations — The court
agreed with the judge in rejecting this view — The notice to quit related to
all the land subject to the tenancy and any reasonable tenant would so
understand it, and it was not necessary for the plan of the proposed
alterations to cover the whole of that area — The court rejected also other
ways of putting the appellant’s criticism of the notice to quit; that the
notice to quit related only to part of the land comprised in the tenancy; that
it failed to implement Case B; or that it was ambiguous — Held, accordingly,
that the notice to quit was valid — Appeal dismissed
No cases are
referred to in this report.
This was an
appeal by the tenant, Cecil Talbot Pratt, from the decision of Judge D Glyn
Morgan, at Newport (Gwent) County Court, holding that a notice to quit served
by the respondent landlord, Roland Emlyn Cawley, was valid and effective. The
notice related to the appellant’s tenancy of the holding, being premises
comprising the old cowshed and buildings at the rear of Wentloog Castle, Castleton,
Newport, Gwent. The judge made an order for possession in favour of the
respondent landlord.
Miss Joanne
Moss (instructed by Robbins Olivey & Blake Lapthorn, agents for Horwood
& James, of Aylesbury, Bucks) appeared on behalf of the appellant; William
Norris (instructed by Burges Salmon, of Bristol) represented the respondent.
Giving
judgment, STOCKER LJ said: This is an appeal from an order of His Honour Judge
Glyn Morgan made at Newport (Gwent) County Court on February 17 1988 whereby he
made a declaration that a notice to quit dated October 21 1986 was a good and
valid notice to determine the appellant’s tenancy of the holding of premises
comprising the old cowshed and buildings at the rear of Wentloog Castle,
Castleton, Newport, Gwent, and an order for possession.
It may be
convenient to read the grounds of appeal at once since they are very short:
1 The learned
Judge wrongly construed the Notice to Quit dated October 21 1986 as a Notice to
Quit the entirety of the holding, whereas it was a Notice to Quit part only of
the holding.
2 The Declaration and Order of the learned
Judge were wrong and ought to be reversed.
The history of
this matter and the facts relating to that notice are, shortly, that the land
concerned in the dispute is slightly less than an acre in extent, upon part of
which is a cowshed and other buildings. The land is situated at the rear of
Wentloog Castle, Castleton, Newport, Gwent. There are various plans to which we
have been referred. The land and the premises were let to the appellant some
time in 1965. It was let by an oral agreement which was informal in nature at
first. The rent was then payable weekly and there has been some dispute as to
the precise use to which the appellant was then putting the land.
In 1983 the
respondent served a notice to quit under the Landlord and Tenant Act 1954. The
appellant then claimed a declaration that the land was an agricultural holding
within the meaning of the Agricultural Holdings Act 1948. On November 8 1985
His Honour Judge Bruce Griffiths QC, sitting at the Newport County Court,
granted a declaration in these terms:
The Court
declares that the land situate to the rear of Wentloog Castle, Castleton,
Marshfield in the County of Gwent and outlined on the plan attached to the
Particulars of claim is an agricultural holding within the meaning of section 1
of the Agricultural Holdings Act 1948.
The respondent
therefore accepted thereafter that the land was an agricultural holding.
The basic
facts are not disputed: that is to say, the respondent’s title is not
challenged, the tenancy is admitted and service of the notice to quit is
admitted.
The notice to
quit was dated October 21 1986 and was served by letter of November 4 1986. The
terms of the notice to quit are important and therefore I will read the
substantial part of it. It is headed: ‘Notice to Quit. Agricultural Holdings
(Notices to Quit) Act 1977’. The notice reads:
Re: The
holding known as The old cowshed and buildings at the rear of the Wentloog
Castle, Castleton, Newport in the County of Gwent.
It was
addressed to the appellant and reads:
I Roland Emlyn
Cawley . . . hereby give you notice to quit and deliver up to me possession of
all that holding and premises known as the old cow shed and buildings at the
rear of the Wentloog Castle, Castleton, Newport in the County of Gwent and
situate at Castleton, Newport in the County of Gwent which you hold of me as
tenant thereof on the 8th day of November 1987 or at the expiration of the year
of your tenancy which shall expire next after the end of 12 months from the
date of service of this Notice.
This Notice
is given on and for the following ground and reason and in pursuance of the
paragraph appropriate thereto set out in section 2(3) of the said Act.
I pause to
observe that that is a reference to the Act of 1977 whereas in fact it would be
Schedule 3 to the Act of 1986, but the wording is identical and accordingly
there can be no distinction there. The notice continues:
Case (B)
The land is
required for use other than for agriculture for which permission has been
granted on an application made under the enactments relating to town and country
planning viz for conversion of existing agricultural building into
three-bedroomed dwelling at the building at the rear of Wentloog Castle,
Castleton, Newport aforesaid under Permission dated 14 July 1986 of the Newport
Borough Council.
This notice was
given pursuant to Case B of section 2(3) of the Act of 1977, but it has now
been consolidated, as I said, by section 3 of Part I of the Agricultural
Holdings Act 1986. It really matters not to which enactment reference is made,
but perhaps it would be convenient to refer to the 1986 Act rather than the
1977 Act.
I refer first
of all to section 1 of that Act, which is headed: ‘Principal definitions’.
Section 1(1) provides:
In this Act
‘agricultural holding’ means the aggregate of the land (whether agricultural
land or not) comprised in a contract of tenancy, which is a contract for an
agricultural tenancy, not being a contract under which the land is let to the
tenant during his continuance in any office, appointment or employment held
under the landlord.
Section 26(1),
which reproduces section 2(1) and (2) of the 1977 Act, reads:
Where —
(a) notice to quit an agricultural holding or
part of an agricultural holding is given to the tenant, and
(b) not later than one month from the giving of
the notice to quit the tenant serves on the landlord a counter-notice in
writing requiring that this subsection shall apply to the notice to quit,
then, subject
to subsection (2) below, the notice to quit shall not have effect unless, on an
application by the landlord, the Tribunal consent to its operation.
Subsection (2)
provides:
Subsection
(1) above shall not apply in any of the Cases set out in Part I of Schedule 3
to this Act; and in this Act ‘Case A’, ‘Case B’ (and so on) refer severally to
the Cases set out and so named in that Part of that Schedule.
In Schedule 3,
Case B provides:
The notice to
quit is given on the ground that the land is required for a use, other than for
agriculture —
(a) for which permission has been granted on an
application made under the enactments relating to town and country planning, or
. . .
and that fact
is stated in the notice.
It is agreed
that Case B required that a demand for arbitration be made and that was done on
November 20 1986. The demand for arbitration is set out on p 3 of the judgment
and the relevant issue was whether a valid permission has been granted on an
application under the enactments relating to town and country planning as
alleged and whether such alleged permission relates to the holding the subject
of the tenancy or any part thereof. Two other issues were raised but it is not
necessary to refer to them.
The appellant,
however, failed to make application for the appointment of an arbitrator within
three months of the demand for arbitration. It is therefore conceded that the
appellant is no longer entitled to contest the notice on the questions stated
in the demand for arbitration. The appellant contended before the learned judge
on the hearing of this matter that the proper reading and construction of the
notice to quit must mean either that it is uncertain and therefore bad and
ineffective or it relates only to part of the appellant’s holding and is
therefore ineffective as a notice to quit because a notice to quit part of the
holding is not valid and, second, even though the demand for arbitration is
ineffective, that does not debar argument that notice to quit is invalid at
common law. The respondent contended that the notice to quit was valid and
effective because, first, a proper reading and construction of the notice to
quit must mean that notice to quit refers to the whole of the land in question
and not merely the old cowshed and buildings and, second, because the demand
for arbitration is ineffective, the appellant is bound to accept that the
notice to quit is valid and effective.
There is no
respondent’s notice in this case and, although the second matter was raised in
the respondent’s skeleton argument, it has not in fact been raised on this
appeal, having regard to the fact that the court should consider, first of all,
the first issue, that is to say the construction of the notice to quit. I
therefore will not consider further the technical argument as to whether the
fact that the only proper forum in which the validity of the notice could be
challenged would be on arbitration and, that arbitration not having taken
place, it is not open to the appellant at this stage to raise that issue. That
was argued before the learned judge and the learned judge rejected the
respondent’s submission on that ground.
The learned judge
in his judgment directed himself as to the principles that he had to apply so
far as the construction was concerned in these terms:
At common law,
a notice to quit is the certain reasonable notice required by law or by custom
or by special agreement or by statute to enable either the landlord or tenant
or assignees or representative of either of them, without the consent of the
other, to determine a tenancy from year to year or other periodical tenancy.
At common
law, no particular form of notice to quit is normally necessary. If a notice to
quit is given by or on behalf of a landlord, it must, in substance and effect,
request the tenant to quit and deliver up possession of all the demised
premises at the proper time. A notice to quit must be clear and certain, so as
to bind the party who gives it and to enable the party to whom it is given to
act upon it, at the time when it was given. Notice to quit must not be
ambiguous. Notice to quit must extend to all the demised premises and not to a
part only, otherwise it will be bad . . .
Then he cites
authority for that proposition. He goes on:
A mere
misdescription of the property in a notice to quit is not fatal if the tenant
is not misled by it.
It would seem
to me from the course of argument which has taken place before this court that
none of those principles enunciated by the learned judge as applied to this
task are significantly challenged in any way.
The learned
judge then analysed the notice to quit in the light of the arguments which had
been put forward and he expressed his conclusions at pp 6 and 7 of his
judgment. I will read those conclusions in full because they are the matters
which have been the subject of the detailed analytical attack by Miss Moss on
behalf of the appellant. They are as follows:
I am not
persuaded by Miss Moss’s careful and analytical argument that I must be driven
to conclude that the notice to quit can refer only to the buildings on the
holding, including, of course, the cowshed. I accept the arguments as to
construction of the notice to quit advanced by Mr Neville. If there is any
ambiguity in the terms of the notice to quit, which I do not consider there to
be, the old common law rule as exemplified by the cases of Doe d Rodd v Archer
and Doe d Morgan v Church takes effect, namely, the notice to quit
will be construed as a good notice for the whole rather than a bad notice for a
part only.
Miss Moss has
challenged the learned judge’s finding in those sentences. The judge continued:
But it seems
to me that the terms of the notice to quit read reasonably and, naturally, are
not ambiguous.
Again, that
finding of the judge is challenged.
The notice to
quit refers to ‘the holding’. It directs the tenant’s attention to what he holds
and what he is required by the landlord to quit and to deliver up. Any cowshed
and any farm buildings must have an area of land surrounding them and attached
to them to enable them to function and to serve their natural purposes. The
extent of the holding is small; less than one acre. Read naturally and
reasonably and in a commonsense way, ‘the holding’ must refer to the holding as
a whole and not just to the cowshed and buildings. It would be artificial and
contrary to common sense to construe the notice to quit in any other way in the
circumstances and on the facts of this case.
I therefore
hold that the notice to quit is a good and valid notice to determine the
respondent’s tenancy of the holding and premises comprising the old cowshed and
buildings at the rear of Wentloog Castle, Castleton.
The argument
put before this court by Miss Moss in her lucid and meticulous analysis of the
situation is really the same, it seems to me, as was put before the learned
judge. She criticises, first, the notice to quit itself. She argues that there
must be precise coincidence of the land in respect of which planning permission
was granted and the holding which covers more than that land. The argument so
far as it relates to facts is based on the various plans. The holding in its
entirety is shown in the plan on p 9. The plan attached to the planning
permission undoubtedly shows a smaller area. We are told — and it would seem to
be correct by a careful comparison of the two — that the land on the planning
permission relates only to that part of the land shown on p 9, which shows what
appears to be a hook and various outline buildings all within the hatched area
and does not depict the remainder of the land which in effect is a remaining
rectangle. Therefore, Miss Moss argues, the land referred to in the notice to
quit must be related to the land in respect of which the Case B permission was
granted.
It is conceded
that the plan attached to the planning application does depict only part of the
total holding of slightly more than an acre. Miss Moss, therefore, submits
that, since that was the subject-matter of the planning application and if the
words in the notice to quit ‘the holding’ relate to the whole area, there is
not a coincidence of boundaries and, therefore, either Case B would not apply
at all or the notice is ambiguous, if I have correctly understood the argument.
She said that, as I have indicated, you can implement Case B only if the land
in respect of which the planning permission is granted is identical with the
land in the notice to quit. Otherwise it should not fall within Case B: the
tenant would probably think that he was being asked to quit only the planning
permission part of the land and, accordingly, there is an ambiguity.
In my view,
there is a fallacy in that argument. The application for planning permission
states that the location of the land to which the application relates is ‘land
at the rear of the Wentloog Castle, Castleton’. Then the particulars of the
proposed development are given as ‘conversion of existing agricultural building
to residential use’. I observe that that was the only matter in respect of
which planning permission was sought. Of course, there might have been many
other matters relating to change of use or other matters which are the
subject-matter of planning applications. Then, under ‘Plans’ the application
states: ‘List of drawings and plans submitted with the application — Site plan,
proposed alterations’. So it does not seem to me in the least to follow that
the fact that the site plan of the proposed alterations is less than the
totality of the acre let to the appellant is relevant at all. The plan related
to the development in respect of which permission was sought, that is to say
alterations of buildings. It would be totally unnecessary, in my view, where
one is dealing with an area of only less than an acre, for the plans showing
those proposed alterations to cover the whole of the area upon which the
buildings were situated. Miss Moss, really as an alternative, argues that the
notice to quit is bad because it relates to only part and not to the whole of
the land. It is conceded that a notice, if relating to only part of the land,
would be bad and she submits that the notice on its face must have that effect
for the reason that I have indicated, that the planning permission under Case B
was in respect of land which was not coincident with the holding in respect of
which the notice to quit appears to have been given. Accordingly, it was bad on
two grounds: first, that it related to a notice in respect of only part of the
land and not the whole and, second, if it were otherwise this would not be a
matter which would be brought within Case B. She also attacks the notice to
quit on a purely constructional basis because she says you must read the words
‘possession of all that holding and premises known as the old cow shed and
buildings’ conjunctively, that the premises are not known as the old cowshed
and buildings and that anybody reading that sentence conjunctively would
construe it as meaning that what had to be given up was the premises and such
land upon which they were situated, that land being that shown in the planning
application.
Miss Moss also
says that, when one comes to look at Case B, which is the reason for the notice
being given, it reads ‘the land is required for use other than for agriculture
for which permission has been granted on an application made under the
enactments relating to town and country planning viz for conversion of existing
agricultural building into three-bedroomed dwelling’, and that the permission
dated July 14 was of the Newport Borough Council, and that anybody comparing
the permission with the notice would read it restrictively as applying only to
the buildings and to the immediate land upon which those buildings stood. In
the alternative, she says, if that is not a proper construction which a
reasonable tenant would place upon the notice, there is an ambiguity which
requires resolution.
I agree with
the reasoning of the learned judge which I have already recited and I agree
with it in its entirety. It seems to me that any reasonable tenant receiving
this notice would see that he had to give up possession of ‘all that holding’
and ‘holding’, though the learned judge did not cite the section, is that which
I have already cited as defined in section 1(1) of the Act of 1986. It means
the acre bit of the land, whether agricultural or not, comprised in the
contract of
use of the word ‘holding’ would indicate to the tenant that what he has to give
up is that land which he holds under such a contract of tenancy. It would seem
to me that the proper construction to place on that sentence is that what he
has to give up is ‘all that holding’ and premises known as the old cowshed and
buildings, which are of course the buildings erected upon that holding. I, for
my part, can really see no ambiguity at all. The word ‘all’ and the word
‘holding’ and the word ‘and’ seem to me to indicate without ambiguity that the
subject-matter of the notice to quit is the area slightly less than an acre of
which the appellant was the tenant. I therefore do not find any ambiguity, and
I agree, as I have already said, in its entirety with the reasoning of the learned
judge.
It has been
argued by Mr Norris that there is an additional reason: that, by reason of the
third ground in the notice for arbitration, that is how the tenant himself
construed it. I think that is probably a valid argument but, for the reasons
that I have already given, I think it is unnecessary to decide that matter one
way or the other.
Accordingly,
in my view, there was no ambiguity in this notice and it was a valid notice. It
is therefore unnecessary to express any view, on which we have not heard
argument, on the technical ground that it is not open to the appellant to raise
the issue at all, since he has not taken advantage, through some mistake no
doubt, of the machinery of arbitration which, it was claimed, was the only
machinery available to resolve this question. That is a technical problem into
which we clearly need not go, having regard to what, in my view, is the outcome
of this case, which is that the appeal should be dismissed.
EWBANK J
agreed and did not add anything.
The appeal was
dismissed with costs.
