Agricultural holdings — Whether agreement conferred exclusive possession — Whether an agricultural tenancy created
By a written
agreement made in 1987 the plaintiffs, the owners of some 12 acres of grazing
land, and a barn used ancillary thereto, at Yew Tree Farm, Dassett, Warwickshire,
allowed the defendant ‘to use the grass keep for cattle and some sheep and the
use of the barn for keeping cattle and storing hay during winter months’. The
agreement further provided that its value was some £720 to be paid by the
defendant undertaking certain work. The agreement was for one year from March
16 1987 and was determined in writing on August 1 1988. The defendant appealed
from a decision of Judge Irvin, in Banbury County Court, that he should deliver
up possession of any land, on the principal ground that the tenancy agreement
and surrounding circumstances conferred exclusive occupation on him;
accordingly, he had an agreement protected by the Agricultural Holdings Act
1986.
the 1987 agreement created an agricultural tenancy by conferring exclusive
rights of occupation on him. By its terms it clearly did not confer exclusive
possession. It granted the use of the land and barn for 12 months, but it did
not say or imply that that use was exclusive in the defendant’s favour as
against the plaintiffs or anyone else. If it was appropriate by virtue of
silence of ambiguity in the agreement to look at the surrounding circumstances
as the judge had done, the judge’s findings, that
determined the matter in the plaintiffs’ favour.
The following
case is referred to in this report.
Harrison-Broadley v Smith [1964] 1 WLR 456; [1964] 1 All ER 867; [1964] EGD
293; (1964) 189 EG 513, CA
This is an
appeal against the judgment of Judge Irvin given at Banbury County Court on
June 3 1991, when he ordered that the defendant, Brian Tompkins, deliver up
possession of land to the plaintiffs, Richard Seaton Evans and Elizabeth Inez
Seaton Evans.
The appellant
appeared in person; Jack Denbin (instructed by Savage & Wright, of Warwick)
represented the respondents.
Giving the
first judgment at the invitation of Butler-Sloss LJ, ROSE LJ said: The
defendant appeals against a judgment of Judge Irvin given at Banbury County
Court on June 3 1991. He ordered that the defendant deliver up possession of 12
acres of grazing land at Yew Tree Farm, Avon Dassett, Warwickshire, and a yard
and barn used ancillarily thereto to the plaintiffs, who since March 1985 have
been the freehold owners of that property.
The question
raised by this appeal is whether the judge was right in concluding that the
defendant has no agricultural tenancy in relation to the land. It was common
ground before the judge between counsel who represented both parties, and it is
not contended to the contrary before this court by the defendant who appears
before us in person, that section 2 of the Agricultural Holdings Act 1986 does
not operate to create an agricultural tenancy in the defendant’s favour unless
he had the right against the plaintiffs to exclusive occupation of the land in
question: see Harrison-Broadley v Smith [1964] 1 WLR 456 where
the 1948 statutory precursor of section 2(2)(b) of the 1986 Act was so construed
by the Court of Appeal.
The
plaintiffs’ case as set out in the particulars of claim was put on the basis
that there was an oral agreement between the parties reduced into writing in
1985, a further written agreement in 1986 and an oral agreement in 1987 some of
the terms of which were reduced into writing. The crucial term not reduced to
writing in 1987 as identified to the judge in the course of the plaintiffs’
counsel’s opening was ‘the continuation of the right of the plaintiffs to graze
horses and other livestock on the land’.
The
defendant’s notice of appeal settled by counsel complains that on this basis
the judge was not justified in deciding that such a term was to be implied into
the 1987 agreement from the course of previous dealings between the parties, or
that the relationship was governed by the 1985 written agreement, which
contained an express reservation of the plaintiffs’ rights in relation to
horses and other livestock as subsequently varied. It is said, further, in the
third ground of the notice of appeal that the judge should have found that the
1987 written agreement was intended to and did contain the whole of the
agreement between the parties.
There are
other assertions in the notice of appeal as to the course of the trial before
the learned judge which, as is plain from the skeleton argument submitted to
this court by respondent counsel, are contentious and for present purposes it
is unnecessary to examine those.
Before this
court the defendant, as I have indicated, appears in person and he has made a
courteous and engaging submission not always immediately audible but ultimately
audible and understandable by this court. What he says is this. First of all,
the matter is governed by the terms of the 1987 agreement. He was on the land
for a whole year. He always understood that he was a tenant and there were no
problems until 1988 when Colonel Evans, the first-named plaintiff, became
friendly with a Mr Allen whom he wished to enjoy the occupation of the land. Mr
Tompkins says that he was paying a substantial rent by way of working on the
property, which translated into financial terms of £60 an acre, and that the
agreement made no mention of others sharing. He submitted that the agreement
has in any event to be construed against the plaintiffs who drew it up.
Alternatively, he submits that, if one looks beyond the 1987 agreement which,
as I have indicated, his first submission is one should not do, the
circumstances surrounding the agreement and what actually happened show him to
have had an agricultural tenancy because he had exclusive possession and
occupation of the land. He says that he had cattle and sheep which he moved
round the 12 acres; that, save for the odd horse now and again, he was the only
person occupying those 12 acres and even in relation to the odd horse he
himself gave permission. The plaintiff himself had not had a horse on the land
after 1986. Seven of the eight bays in the barn he occupied and the one bay
which was occupied by Colonel Evans was separated from the rest and had doors
to it, as we have seen in the photographs which the appellant has shown to this
court. Mr Tompkins says that he alone paid for the fertiliser after the first
year when its cost was shared, and he paid all the water bills and did all the fencing.
The land was grazed continuously. It was never cut for hay and he says horses
are not supposed to count as agricultural use. He went on to submit that the
plaintiffs had asked his permission to build a copse at one end of one of the
fields in 1986; that, although the horse of a Miss Harrison was there from May
to October of 1987, Mrs Evans had asked Mr Tompkins’ permission for that to be
so; and that after the first year’s agreement there never was any reservation
of rights to the plaintiffs.
He referred us
to the notes of evidence made on his behalf before the learned judge. It is
clear in relation to certain aspects of this matter, as indeed Mr Tompkins
frankly said, that one of his complaints was that the learned judge had
accepted, as he, Mr Tompkins, thought he should not have accepted, the evidence
called on the plaintiffs’ behalf rather than the evidence of the defendant and
his son. Mr Tompkins also drew our attention to certain passages starting at
p25 in a publication Agricultural Law by C P Rogers.
Those were in
outline the submissions which Mr Tompkins made to this court.
Before the
trial judge, as will be apparent from what I have already said, a good deal of
evidence was called on behalf of the plaintiffs to demonstrate that between
1985 and 1988 horses belonging to the plaintiffs and others had, with the
plaintiffs’ permission, been grazed on the land at the same time as the
defendant’s livestock. The defendant and his son, as I have indicated, gave
evidence, the substance of which was that, in so far as the defendant was from
time to time aware of the presence of horses, his permission to graze them had
been expressly sought either by Colonel or Mrs Evans. The judge, as I have
indicated, preferred and accepted the plaintiffs’ evidence in relation to this
and said:
I am quite
satisfied that Brian Tompkins must have known of Miss Harrison’s horse
continuing to be there until 10.87, and of Mrs Nunnerley’s horse for long
periods until 1989 and Mrs Nunnerley’s two ponies being there intermittently
for longer or shorter periods. Brian Tompkins must have known because he saw
the horses and ponies on the land, and probably because Mrs Evans told him
whose horses and ponies they were. I find Brian Tompkins was never asked for
permission by Colonel or Mrs Evans as to Mrs Nunnerley’s horse or ponies being
there. He never objected to any horses being on the land until August 1988. He
never sought payment, or any reduction in notional payment. Brian Tompkins
accepted this grazing by the horses because it was, and he knew it was, part of
the continuing agreement under which he was allowed to use the land.
For my part, I
am content to assume that the question raised by this appeal which I identified
at the outset is, as ground 3 of the notice of appeal contends, properly to be
answered solely by construing the 1987 agreement without any reference to the
surrounding conduct of the parties. It is to be borne in mind that para 8 of
the defence asserts the defendant’s security of tenure and it is for the
defendant, as it seems to me, to show that, properly construed, this 1987
agreement creates an agricultural tenancy by conferring exclusive rights of
occupation on the defendant.
Accordingly,
it is to the terms of the agreement itself that I turn. It starts as follows:
AN AGREEMENT
BETWEEN LT COL R S EVANS OF YEW TREE FARMHOUSE AVON DASSET AND MR TOMPKINS OF
HOME FARM ARLESCOTE FOR 12 ACRES OF GRASS KEEP AT YEW TREE FARM.
1. This
Agreement will run for 1 year from 16th March 1987.
2. Lt Col
Evans will allow Mr Tompkins to use the grass keep for cattle and some sheep
and the use of the barn for keeping cattle and storing hay during winter
months.
The agreement
goes on to make a prohibition in relation to certain aspects of driving
tractors and similar vehicles, and in clause 3 says:
It is
estimated that this agreement would be valued at some £720 due to be paid by Mr
Tompkins to Lt Col Evans. However in lieu of payment Mr Tompkins will undertake
the following work entirely at his own expense:
and there are
there listed six items, the value of which is variously assessed, totalling
£720 and embracing such matters as fencing, repairing gates and chopping down a
fir tree and similar works.
On the face of
it that agreement expired in March 1988, and in any event the plaintiffs wrote
on August 1 1988 terminating the defendant’s licence. The question is whether
that agreement conferred exclusive possession on the defendant. In my judgment,
by its terms it clearly did not. It granted the right to use the land and barn
for 12 months, but it did not say or, as it seems to me, imply that that use
was exclusive in the defendant’s favour as against the plaintiffs or anyone
else. If I am wrong in this, and it is appropriate by virtue of silence or
ambiguity in that agreement to look at the surrounding circumstances as the
judge did, in my judgment, the judge’s findings which I have earlier set out
conclusively determine the matter in the plaintiffs’ favour.
It follows, as
it seems to me, that the judge was right to conclude that the defendant had no
right to exclusive occupation and therefore no agricultural tenancy and,
accordingly, for my part, I would dismiss the appeal, and order that the
appellant deliver up possession of the land and barn and yard.
Agreeing, BUTLER-SLOSS
LJ said: I agree with the judgment of Rose LJ that the proper approach to
this appeal is to construe the agreement of March 16 1987 without reference
either to the earlier agreements or, indeed, to the surrounding circumstances.
The agreement itself is silent on the rights of exclusive occupation. It is
difficult to construe the agreement in such a way as to confer such exclusive
use on the appellant. It is for the appellant to prove that the agreement comes
within the terms of the Agricultural Holdings Act 1986 or its predecessor and I
agree that he has failed to demonstrate that he has an agricultural tenancy.
Alternatively,
if the agreement is to be criticised for ambiguity and it is permissible to
look at the surrounding circumstances, the facts found by the judge show
conclusively that, so far from the appellant actually exercising exclusive
occupation of the land, in fact the respondents were placing horses on the land
for varying periods, some of which were for months at a time, and did so
without asking permission from or receiving objection from the appellant up to
the period of August 1988.
The facts
found by the judge show clearly, in my judgment, that the land was shared by
the appellant and the respondents. Consequently the judge was entitled to hold
that an agricultural tenancy had not been created and that the respondents were
entitled to terminate the licence. I agree that this appeal should be
dismissed.
Appeal
dismissed with costs.
