Landlord and Tenant Act, 1954, section 30(1)(f), (g) — “Substantial work of construction” — “Demolish” — “Reconstruct” — Conversion of kennels to caravan site
A tenant of business premises applied for a new lease, and the landlord opposed the application on the reconstruction ground. The premises consisted of a piece of land used for breeding and boarding dogs, and the structures placed on the land were for the most part kennels, the majority with concrete foundations. The landlord proved his intention to remove these, raise the level of the land, clear it, construct a road, lay soil and water pipes and electric cables, and convert the land into a caravan site.
Held, that the finding of the County Court judge that the landlord’s proposals involved “substantial work of construction” within paragraph (f) of section 30(1) of the Act of 1954, could not be interfered with. Dicta of Ormerod, LJ, doubting, and Danckwerts, LJ, supporting the proposition that removal of the kennels would amount to demolition for the purposes of the same paragraph. Quaere, however, whether it would amount to demolition of “the premises… or a substantial part” thereof. Dictum of Ormerod, LJ, concerning the meaning of “reconstruct.”
This was an appeal by Mr George Thomas Cook, of Battlebridge House, Battlebridge Lane, Merstham, Surrey, from a decision of Judge Jellinek at Reigate County Court on December 6, 1960, refusing to order his landlord, Mr Herbert Dignan Mott, also of Battlebridge House, Merstham, to grant him a new tenancy of part of the premises according to the provisions of the Landlord and Tenant Act, 1954.
Mr James Dunlop (instructed by Messrs Russell, Sons & Bass, of Redhill, Surrey) represented the appellant, and Mr Desmond Wright (instructed by Messrs Attersoll, Smith, Musker & Toulmin, of Reigate, Surrey) appeared for the respondent.
Giving judgment, Ormerod, LJ, referred briefly to the nature of the appeal and continued: Such of the facts as are necessary in this case are as follows. The tenant has, since June, 1934, been in occupation of four rooms at Battlebridge House, Merstham, Surrey, and also of a plot of land to the south of that house of approximately 1,250 sq yds. He has lived in the house with his wife and family and has used the plot of land for breeding dogs, for keeping boarding kennels and for all purposes necessary to carry on that business. In order to carry on his business he had erected on the site a number of wooden structures, and I believe thought there is no clear evidence about it that there was also a shed constructed of corrugated iron. The wooden structures were dog kennels and mostly had concrete foundations: some of them, we have been told, were simply placed loosely on the concrete, and others were bolted to the concrete. The tenant paid a weekly rent of £1 3s 0d inclusive of rates. On May 19, 1960, the landlord gave notice to the tenant to terminate the tenancy, and on July 15 the tenant applied, within time and in the prescribed form, for the grant of a new tenancy. That application was the one that was before the learned County Court judge and is, of course, the one before us today. The application was opposed by the landlord on two grounds. The first was under paragraph (f) of section 30(1) of the Landlord and Tenant Act, 1954, and the second under paragraph (g) of the same subsection; and it might be useful if I read those two paragraphs at this time. Paragraph (f) of the subsection, which is one of the grounds upon which a landlord may oppose an application for a new tenancy, is as follows
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.
Paragraph (g) reads as follows:
Subject as hereinafter provided, that on the termination of the current tenancy the landlord intends to occupy the holding for the purposes, or partly for the purposes, of a business to be carried on by him therein, or as his residence.
It is the intention of the landlord to alter Battlebridge House in such a way that the part now occupied by the tenant will be converted into two flats, and it is also his intention, as has been found by the learned County Court judge, to develop a caravan site on the piece of land which has been let to the tenant and is part of his tenancy. The landlord has already developed the piece of land adjacent to the house and to the land let to the tenant as a caravan site, and I understand although, so far as I know, there is no conclusive evidence of this that a road has been made; that services of water and electricity have been supplied; that soil pipes have been put down, and that, in addition, concrete footpaths have been made so that there will be easy and comfortable access to the caravans. It has not been the practice of the landlord in the past, nor, as I understand his evidence, is it his intention in the future, to provide caravans on the site; but what he proposes to do is to prepare the site so that caravans can be placed there and then to let portions of the site to the owners of caravans who will have their caravans there and leave them there permanently, and, presumably, live there; and if they wish to go elsewhere, they will probably sell their caravans to other people who desire to come and live on the site. That is the kind of thing which the landlord, according to his evidence, has in mind. Referring shortly to the evidence as to what he intends to do, when he was called the landlord said this: “Plan shows proposed completion of Horseshoe Road” that is a road on the site “and caravan sites.” I should say that the plan is not before the Court; I believe it was before the learned County Court judge, but it has not been deemed necessary, nor would it appear necessary, to produce it in this Court. The landlord goes on to say: “If I can obtain possession of the applicant’s land, I shall have to demolish the kennels, raise the level of the land, clear the land, construct the road, lay soil and water pipes and electric cables. It will cost over £2,000. This will accommodate 17 more caravans.”
That is the evidence of the landlord, and it might be convenient while I am on that point to deal with what the learned County Court judge found, bearing in mind that he had to decide, amongst other things, what was the intention of the landlord at the time of the hearing. That was a matter which was greatly canvassed at the hearing, but it was not seriously suggested that the landlord had any other intention than that of laying out a caravan site, as he described in his evidence, and, indeed, there was no evidence the other way. The learned County Court judge said: “The works required to convert the holding into a caravan site include the demolition of the existing dog kennels, the clearing and raising of the level of the land and the laying thereon of drains, water pipes and electric cables. The respondent, who has had experience of such development, states that the cost will be a sum exceeding £2,000. I am satisfied that these works constitute a substantial work of construction on the holding within the meaning of section 30(1)(f) of the Act and that the work is of such a nature that the respondent could not reasonably carry it out without obtaining possession of the site.” Always assuming that the intention of the landlord is to carry out that work, then that finding as a finding of fact is sufficient to justify the refusal of a new tenancy.
The real question here is whether that is a finding of fact with which we cannot interfere, or whether it is a finding of law with which we ought to interfere. Mr Dunlop, on behalf of the tenant, has submitted that, although the findings are there, on the findings of fact made by the learned County Court judge the finding of law should have been the other way and the new tenancy should have been granted. Referring to paragraph (f) of the subsection, which provides “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,” there has been some argument, first of all, by Mr Dunlop as to whether the work proposed by the landlord comes within that part of the paragraph; that is to say, whether there is an intention on the part of the landlord to demolish existing premises or a substantial part of them and to reconstruct them. As to that, it appears to me that the matter is in some doubt. We have the evidence of the landlord that he would have to demolish the kennels. It was suggested before the learned County Court judge that as the kennels were wooden ones the term “demolish” probably did not apply to them, and that all that was necessary was to remove them from the site. In the circumstances of this case, it is not necessary for the Court to decide that question, and it was not decided by the learned County Court judge. But I think I ought to say this. There has been some argument in this case and in other cases about the meaning of the word “reconstruct.” As at present advised, although the matter has not been fully argued, it would appear to me that it would be difficult to reconstruct something unless first of all there was a construction that was wholly or partially demolished. The word here is not “construct” but “reconstruct,” and having regard to the ordinary meaning of words, it would seem difficult to reconstruct something not already constructed.
But that is not the full scope of paragraph (f). It then goes on: “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.” The learned County Court judge has found that the work of construction which the landlord proposes to carry out is, to use the words of the paragraph, “substantial work of construction on the holding or part thereof,” and “that he could not reasonably do so without obtaining possession of the holding.” It has been argued very fully by Mr Dunlop that none of the things referred to by the landlord in his evidence amount to work of construction: that it is wrong, for instance, to speak of constructing a road; it is wrong to regard the laying of electric cables, water pipes, soil pipes and so on as work of construction; that it is not constructing so much as laying drains and making roads, or whatever the appropriate term may be. I have come to the conclusion that this is largely a matter of |page:639| degree depending on the circumstances of each particular case. I think you might have proposed work which consisted of nothing more than laying a pipe or drain which could not be regarded as work of construction. On the other hand, I think it is open to any judge of fact dealing with a matter of this kind to consider the work which has to be done and the picture which the evidence creates and decide whether that is something which becomes work of construction. That is what the learned County Court judge has decided in this case: not only that this is a work of construction, but (and this I think can hardly be disputed) that it was a substantial work of construction, and that, in those circumstances, paragraph (f) of the subsection applied and the landlord was justified in refusing to grant a new tenancy. It is, in my view, as I have said, largely a matter of first impression and a question of the facts and circumstances of each particular case.
Having considered this case having considered the site, so far as we are able to from the description which has been given in this Court and as it was given to the learned County Court judge in the evidence before him I have no hesitation in coming to the conclusion that the learned County Court judge was right in deciding as he did, and that his decision, so far as paragraph (f) is concerned, should not be disturbed. If the learned County Court judge was wrong on that matter, then the question would arise whether he was right in holding that, in the circumstances, paragraph (g) applied and that that was an additional ground for enabling the landlord to refuse to grant a new tenancy. The argument which has been put forward, supported to some extent by authority, is that it is essential, to succeed under paragraph (g), that it should be proved that the landlord intends to occupy the holding for the purposes of a business to be carried on or as his residence. It has been submitted that in these circumstances, on the facts as found by the learned County Court judge, there was nothing to show the intention of the landlord to occupy the premises either for the purposes of his business as a proprietor of a caravan site or for a residence. As has been pointed out to Mr Dunlop, in those circumstances, if the Court upholds the view of the learned County Court judge on paragraph (f), that is an end of the case and there is no necessity to consider what the position might be under paragraph (g). Mr Dunlop has been willing to accept that situation, and in these circumstances we have not heard the argument which Mr Wright has been prepared to direct in support of the learned County Court judge’s view of paragraph (g). Therefore, the submissions under that paragraph remain and the question remains open. So far as this Court is concerned, as I have already intimated, having formed a view of the judgment of the learned County Court judge on paragraph (f), any consideration of the situation under paragraph (g) becomes purely an academic one. For my part, I would dismiss the appeal, being of the view that the judgment of the learned County Court judge on paragraph (f) of the subsection should be upheld.
Willmer, LJ: I find myself wholly in agreement with what my Lord has said and there is nothing that I can usefully add.
Danckwerts, LJ: I agree. It seems to me that in applying the words which are contained in the paragraph of the subsection in question one must have regard to the nature of the premises which are under discussion, and one must apply commonsense considerations. This is not a case where there is a substantial office block or anything of that sort upon the site. There is, in fact, a house and a portion of ground, and a substantial part of the site is occupied by kennels of wooden or corrugated iron construction, with the runs required for the purpose of dogs being kept there. It seems to me that those kennels are demolished even if they are taken to pieces and are sent away either to another site or sold for some purpose or other; and it may be that the concrete on which they stood would also have to be broken up for the purposes of the landlord’s intentions. When it comes to a question of construction, it seems to me that, in the circumstances of these premises, substantial work of construction has to be undertaken by the landlord, having regard to the nature of the site, to turn it into use for the purposes of a caravan park. I agree entirely with the observations that have fallen from Ormerod, LJ, and that this appeal should be dismissed.
The appeal was accordingly dismissed with costs.
