Agricultural Holdings Act 1948, section 2 — Grazing rights and shooting rights — Dispute as to effect of informal arrangement by exchange of letters — Appeal from decision of Mr John Mowbray QC sitting as a deputy judge of the Chancery Division — The letters referred to a payment of £150 per annum for ‘the use of the area marked in red for the grazing of your [ie the plaintiff’s] cattle’ and to the grant of shooting rights for which no separate payment was required — The deputy judge held that a protected yearly tenancy of the field in question had been created together with restricted shooting rights — Held, on appeal by defendants, that whether the arrangement in regard to the field constituted a tenancy or a licence the result was to create a protected agricultural tenancy, since the licence, if it was such, was for a full year, not part of a year, and so would be within section 2(1), and not the proviso to section 2(1), of the 1948 Act — A suggestion that it was a non-exclusive licence because a right of access to certain sheds had been reserved was rejected — The Court of Appeal also held that the shooting rights granted were over the whole of the defendants’ farm, not restricted to part as the deputy judge’s order had stated, but had been granted by a gratuitous licence which the defendants had duly terminated — In the result the appeal was allowed to the extent that the judge’s order was varied to contain only a declaration that the plaintiff (respondent) was entitled to a protected agricultural tenancy of the field
This was an
appeal by the defendants, Bernard W Barker, and his wife, Janet Barker, against
the order of Mr John Mowbray QC, sitting as a deputy judge, in an action
brought by the plaintiff, Martin Robert Lampard. Mr Lampard, a solicitor and
agricultural landowner, owned a property adjacent to a smallholding, known as
Birchwood Farm, Theberton, Suffolk, vested in Mrs Barker, whose husband acted
as her agent. Mr Lampard claimed that by virtue of an agreement he had acquired
a protected agricultural tenancy of a field of Birchwood Farm and shooting
rights over the whole of the farm.
Robert Pryor
QC (instructed by B G French & Co, of Ipswich) appeared on behalf of the
appellants; Francis Ferris QC (instructed by Ashurst Morris Crisp & Co)
represented the respondent.
Giving the
first judgment at the invitation of the Master of the Rolls, BROWNE-WILKINSON
LJ said: The plaintiff, Mr Lampard, is a solicitor. He owns a substantial
house, The berton House in Suffolk, together with several hundred acres of
agricultural land adjoining it. He farms the agricultural land and shoots over
it. Immediately to the east of Mr Lampard’s house, across a road, is Birchwood
Farm, where the defendants, Mr and Mrs Barker, live. The land is vested in Mrs Barker
alone, but it is common ground that her husband has been acting as her agent.
Although
Birchwood Farm is called a ‘farm’, it is in fact a smallholding. It consists of
a piece of meadowland on which the house is built, which is numbered 7221 on
the latest Ordnance Survey map. To the north and the east of the house there is
a strip of woodland called Broom Covert. Immediately to the south of the meadow
there is now a track. To the south of the track there is a 6-acre field,
numbered on the latest Ordnance Survey 8200: I will call that ‘the field’.
Along the southern boundary of the field there is another strip of woodland
called Greenhouse Plantation. That strip along the southern side belongs to Mr
Lampard. On the eastern boundary of the field there is another part of
Greenhouse Plantation, which I will call ‘Greenhouse Plantation east’. That
belongs to the defendants. All the land south and east of Birchwood Farm
belongs to Mr Lampard and is used by him for the purposes of his shooting.
For reasons
which will appear, it is necessary to indicate the ordnance survey numbers of
Birchwood Farm by reference to the old survey plan. It appears that the field
and what is now No 7221 were formerly part of one field, old OS No 321. Broom
Covert was a separate enclosure on the old OS No 320. Greenhouse Plantation
east was part of the old OS No 623.
In the
north-west corner of the field there are two large cedar buildings, adapted to
use for rearing fowl, and another small building. The cedar buildings have
access through doors at the northern end on to the track. They also have doors
at the southern end which open straight on to the field. There is no access to
these doors at the southern end save over the field.
Before the
defendants bought their land in 1977 or 1978, it was owned by a Mr and Mrs
Bailey. Mr Lampard had two separate arrangements with the Baileys. First, he
made an arrangement each year to graze cattle on the field at a rent of £115
per annum, such grazing being for a limited period in each year, there being no
question of protection under the Agricultural Holdings Act. Second, he had made
certain arrangements with the Baileys concerning shooting over Birchwood Farm.
The exact nature of those arrangements is not clear, but they certainly
included maintaining release pens for young pheasants in the north-east corner
of Greenhouse Plantation east.
Mr Lampard was
keen, when the Barkers bought the land, either to buy the field or part of it
or, alternatively, to come to some sort of arrangement with them similar to
that which he had had with the Baileys. Soon after they arrived, there was a
telephone call which led to a social meeting for drinks at Mr Lampard’s house.
Mr Lampard discussed the matter with Mr Barker. The judge found that no
concluded agreement was reached at that meeting.
Shortly
thereafter Mr Barker wrote a letter of February 15 1978 to Mr Lampard, which
read as follows:
My wife and I
would like to thank you for your invitation to your house for drinks last
Sunday lunch time. It was very pleasant meeting you and your wife, and the
children enjoyed seeing Sophie.
With regard
to your interest in the land at Birchwood Farm. It is my hope that in the near
future we shall extend the house to accommodate father-in-law and ourselves,
and also gradually bring the land and woodlands up to a well-kept condition. As
I explained I intend to clear up the woodlands and plant new trees to maintain
the screening effect they were intended for, and that is the only access I
would require to carry out this task. The meadow land I would not require
except possibly the paddock in front of the main chicken sheds. It was not my
intention to sell the land away from the farm as I was of the opinion that the
County Planning required it to be kept intact, as they placed the special
restrictions on use before Mr Bailey was granted permission to build. My reason
for seeking somebody to lease the two cedar sheds is to secure a small income
for my father-in-law who is likely to be retiring within the next two years.
Naturally the
two cedar units are of reasonable value to a firm who deals in millions of
chickens a year, and they approached me because they needed a small unit which
they could draw from without too much disturbance. I can only convey to you
what they have offered me for the lease of the two cedar sheds. They decided to
start at a lower figure of £800 for the first year as they would have to put
the sheds in order, rising to £1,200 in the second year, and then finally
£1,600 for the third year. After that the rent would be negotiable allowing for
inflation. The hire of the field was a separate issue and for this I would be
prepared to accept £150 per annum which would be for the use of the area marked
in red for the grazing of your cattle. The shooting rights for all
the property would be included for nothing if you considered leasing the
chicken unit and field which would mean giving you the right to rear the baby
pheasants in the woodlands. We would both have common use of the driveway which
runs past the chicken units, as I would need access to the paddock and pit, and
to the woods at the far end of the field.
Perhaps you
may feel that the rent for the chicken units is too high for the use you may
have in mind for them, and therefore the leasing of them to the company who at
present requires them would be more economic. The field and use of the
woodlands would be left to you with the shooting rights, and hopefully you
would consider renewing your invitation of last Sunday and allow me [to] come
on a shoot with you.
I have worked
out some figures below which would be for the lease of the field and chicken
units (area marked in red), which would also include the shooting rights for
all the property.
|
1st Year |
2 Cedar Units |
£800 |
|
|
Field marked in red |
£150 |
||
|
£950 |
per annum |
||
|
2nd Year |
2 Cedar Units |
£1,200 |
|
|
Field marked in red |
£150 |
||
|
£1,350 |
per annum |
||
|
3rd Year |
2 Cedar Units |
£1,600 |
|
|
Field marked in red |
£150 |
||
|
£1,750 |
per annum |
||
|
4th Year onwards |
Negotiable |
|
Should you decide to take over the field and chicken units, and you
consider a written gentleman’s agreement is sufficient, or you feel it
necessary to have a lease then either will suit me.
I await your
communication.
The plan
referred to in that letter showed the field, including the sheds on it, in red.
Mr Lampard
replied to that letter on February 20 1978 in the following terms:
Many thanks
for your letter of the 15th February which I received when I got down for the
weekend. I am most grateful that you should have taken the time and the trouble
to write in such detail.
Obviously it
would not be economic for me to rent the two cedar units at the value you are
able to obtain from the commercial chicken people you mention as all I would
need them for would be for rearing pheasants. I would, however, be most
grateful to accept your offer of the hire of the field and the use of the woods
with the shooting rights — and, of course, hope you would consider coming on
one or other of the shoots next year. Accordingly, I enclose my cheque for £150
and am perfectly happy for our arrangement to rest on this exchange of letters.
Shortly
thereafter, the cheque which had been sent by Mr Lampard with his letter of
February 20 1978 was paid into the bank by Mr Barker. Therefore, at the latest,
agreement was reached when that cheque was paid in, there having been no
meeting between the parties subsequent to the social meeting for drinks at Mr
Lampard’s house. In my judgment, it follows that the agreement reached is to be
found in the exchange of letters properly construed against the background of
surrounding fact.
Thereafter, Mr
Lampard put his cattle to graze on the field and took a hay crop from it year
by year. The cattle were not on the field the whole time. The judge found that
they were there more in the summer than in the winter. Mr Lampard duly sent a
cheque for £150 in each of the years 1979 to 1982 inclusive, describing it on
three of those occasions as the payment ‘for your field’. In the covering
letter with the cheque for 1979 he said this:
I hope you do
not mind, but I have asked Dick to put some nitrogen on the field as it could
do with some fertiliser.
So far as the
shooting is concerned, it appears that Mr Barker was in fact invited to shoot.
Mr Lampard shot over at least part of Birchwood Farm, but it has not been
clearly established which part. He maintained the release pens on Greenhouse
Plantation east. The evidence before the judge was that Broom Covert as well as
Greenhouse Plantation east were important to the running of Mr Lampard’s shoot.
Due to
circumstances quite unconnected with this case, the Barkers felt that they had
a grievance against Mr Lampard. As a result, on October 11 1982 Mrs Barker
wrote two letters to Mr Lampard. They purported to demand from Mr Lampard
£1,500 per annum for grazing rights and shooting rights. A reply was sent from
Mr Lampard’s firm. Mr Barker was seen with a gun on or near the field and shots
had been heard. As a result, on October 26 1982, Mr Lampard as plaintiff issued
the writ in these proceedings, the relief claimed being this:
A declaration
that by virtue of an agreement in writing between the Plaintiff and the First
Defendant or the Second Defendant or either of them constituted by two letters
dated respectively the 15th and 20th February 1978 the Plaintiff is entitled to
a tenancy protected under the Agricultural Holdings Act 1948 of the field at
Theberton in the County of Suffolk being OS enclosure No 321 together with the
adjacent woodlands being OS enclosures No 320 and 623 to enjoy shooting rights
over the said field and woodlands.
On the same
day he obtained an ex parte injunction restraining the defendants from
interfering with his shooting rights over the whole of their land. That
injunction was continued inter partes on November 2 1982.
Following the
start of those proceedings, the defendants’ solicitors, on November 26 1982,
wrote to Mr Lampard giving notice as follows:
(1) The gratuitous licence under which you enjoy
the shooting rights over Birchwood Farm, Theberton, being OS enclosures Nos
320, 321 and 623 will not be renewed at the end of the current shooting season
on the 1st February 1983 and that on the 1st February 1983 this licence will
terminate.
(2) The grazing licence which you enjoy over OS
321 Birchwood Farm, Theberton, will not be renewed at the end of the current
year on the 19th February 1983 and that on the 19th February 1983 this licence
will terminate.
The defendants
maintained that Mr Lampard had neither the right to graze his cattle on the
field nor any continuing shooting rights.
The case came
on for trial before Mr John Mowbray QC, sitting as a deputy judge of the Chancery
Division. He upheld Mr Lampard’s claim in full, holding that Mr Lampard had
grazing rights over the field and exclusive shooting rights. He said this,
speaking of the exchange of correspondence:
In my
judgment, that created a yearly tenancy of the field, with shooting rights over
the woodlands and the right to rear pheasants there at a yearly rent of £150.
Alternatively,
he held that Mr Lampard had an annual licence to graze cattle on the field,
which it had not been contemplated would be exercised for less than a full
year. Accordingly he held that Mr Lampard’s rights were entitled to protection
by virtue of the Agricultural Holdings Act 1948. Section 2(1) provides as
follows:
Subject to the
provisions of this section, 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 letter 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, or to an
agreement for the letting of land, or the granting of a licence to occupy land,
by a person whose interest in the land is less than a tenancy from year to year
and has not by virtue of this section taken effect as such a tenancy.
The question
before the judge was whether the case fell within the proviso which would have
excluded it from the Act, namely that it was in contemplation that the use of
the land would only be for grazing or mowing during some specified period of
the year. The learned judge held that it was not so contemplated by the
parties.
There is an
oddity about the order drawn up to give effect to the learned judge’s judgment.
That order, as passed and entered, provides not only that Mr Lampard is
entitled to a yearly tenancy protected by the Agricultural Holdings Act, but it
goes on to say ‘together with the exclusive shooting rights over the said field
and over that part of Greenhouse Plantation which lies on the east of the said
field and is owned by the Second Defendant’. Pausing at that point, it appears
that according to the order the shooting rights are limited to the field and
Greenhouse Plantation east: none of the rest of the defendants’ land is
included. However, the order continues with an undertaking by the defendants
not to interfere with the plaintiff’s exclusive shooting rights ‘over the field
at Theberton in the County of Suffolk being Ordnance Survey enclosure Number
321 and the adjacent woodlands being Ordnance Survey enclosures
course of preparing the order, what had hitherto been a claim for shooting
rights effectively over the whole of the defendants’ land has become limited to
a declaration of shooting rights over the field and Greenhouse Plantation east
only, although the undertaking extends to a wider area.
There is
nothing that I can see either in the judgment or in the evidence before the
learned judge to justify limiting Mr Lampard’s claim to shooting rights over
Greenhouse Plantation east alone; the writ and claim throughout seem to have
been put forward as a claim to shoot over the whole of the defendants’ land.
Mr and Mrs
Barker appeal against the judgment both as to the protected holding of the
grazing and as to the shooting rights. I will deal with them separately.
As to the
grazing rights, Mr Pryor on behalf of the Barkers first contends that what was
created was a licence and not a tenancy. Then, in reliance on the speech of
Lord Diplock in Bahamas International Trust Co Ltd v Threadgold [1974]
1 WLR 1514 at p 1525, he submits that the licence granted for the field was a
non-exclusive licence and therefore does not enjoy the protection afforded by
section 2 of the Act. For that purpose he relies upon the undisputed evidence
that the dung in the sheds being used for rearing fowl had to be cleared out
twice a year. For that purpose it was necessary for two days to have access to
the cedar sheds through the doors at their southern end, and for that purpose
gain access over the field to those doors. Thereafter the doors had to remain
open for a further fortnight, there being no fence to prevent cattle straying
out through the sheds in those circumstances. Mr Pryor says that such access
interferes with any exclusive possession that Mr Lampard might otherwise have
of the field and is inconsistent with a licence protected by the Act.
Mr Pryor
further relies on the fact that both parties in evidence admitted to knowledge
in outline of the provisions and effect of the security of tenure provided by
the Agricultural Holdings Act and on the fact that Mr Lampard knew of the
practice of granting grazing rights for less than a full year. Moreover, he
knew of the ordinary conventional time for which such grazing rights in that
part of the world were granted. Thus, he says, the judge ought to have found
that it was in the contemplation of the parties that the grazing would not be
for a full year but only for a lesser period.
In my judgment
it is unnecessary to decide whether the arrangement relating to the field
constituted a tenancy of the field or merely a licence for grazing. I have some
doubt whether it created a tenancy and I will assume that it was a mere
licence. However, even on that assumption, it seems to me that it is clearly a
licence falling within section 2 of the Act and not falling within the proviso
to section 2.
As to Mr
Pryor’s argument on exclusive possession, to my mind it is clear from the
exchange of letters that a right of access to the doors in the cedar sheds must
have been impliedly reserved to Mr Barker. The first offer he made in the
letter of February 15 was an offer to let the sheds and the field. The
alternative offer, which was the offer accepted by Mr Lampard, was on the basis
that the sheds would be excluded and let to a commercial rearer of fowl. In my
judgment, it was necessarily implicit as being in the contemplation of both
parties that the commercial rearer would be using the sheds and there would be
reserved to the Barkers all necessary rights of access to enable the sheds to
be used for the rearing of fowl. That access included the necessity of clearing
the dung twice a year through the doors at the southern end. There is
therefore, in my judgment, a reservation so far as necessary of such right of
access. If there is such a reservation of a right of access, it is not in my
judgment in any way inconsistent with the exclusive possession of the field for
the purpose of agriculture. One only has to think of an ordinary case of the
grant of a tenancy of land subject to rights of way. The tenant has exclusive
possession of the land notwithstanding the existence of rights of way over the
land. In my judgment, it is plain that Mr Lampard was given exclusive
possession of the field, excluding the sheds, subject to all necessary rights
of access to the sheds for the purpose of rearing fowl in them.
The Bahamas
case is quite different. There the House of Lords was considering a case where
concurrent rights of grazing were held to be in existence. That is quite
different from an exclusive right to graze subject to a right of way over the
property.
As to the
argument that the parties only contemplated the use for grazing for a limited
period, in my judgment that is a question of fact and the learned judge decided
that question of fact against the Barkers. He was fully entitled so to do and,
indeed, in my judgment his conclusion was right. There was no express mention
of any limited period. The rent paid was for a full year. The animals were kept
on the land outside any conventional grazing season and, indeed, appear only to
have been taken off in order to enable the grass to grow to reap a crop of hay.
At no stage did the Barkers make any use themselves of the land. The knowledge
of the parties as to the Agricultural Holdings Act in my judgment throws no
light on whether they contemplated that the property should be used for less
than a full year. Everything indicates that it was the intention that Mr
Lampard should have the grazing for the full year.
Accordingly,
in my judgment, the only possible conclusion in this case is that either by way
of tenancy or by way of licence Mr Lampard was given the right to graze the
land for the full year, and there is no evidence that there was any limit to
the period during which he could do so. Accordingly, he has at least a licence
to graze for a full year protected by the Agricultural Holdings Act, there
being no contemplation of his grazing for a specified shorter period. I would
therefore dismiss the appeal so far as the grazing rights of the field are
concerned.
The shooting
rights are, in my judgment, quite different. The letter of February 15 from Mr
Barker shows that the shooting rights were to be included ‘for nothing’ — he
said so expressly. He was expressing the hope that he would be invited to
shoot, not as a firm consideration but as an expectation or hope. On my reading
of the letter, the shooting rights under discussion were the rights over the
whole farm, not merely the rights over the field or Greenhouse Plantation east.
Although the grazing rights over the field and the shooting rights were being
considered in the same negotiation at the same time, in fact they are wholly
separate matters. It was a single arrangement covering both the grant of the
grazing rights of the field and the shooting rights over the defendants’ land
too. The judge held, although without any explanation, that the shooting rights
were annexed to the tenancy of the field. He says this at p 7C:
In my
judgment, the shooting rights, including the right to rear pheasants referred
to in the letters I have read, are annexed to the tenancy of the field. Of
course shooting is not an agricultural purpose, but I consider that the
shooting rights are not so important a part of Mr Lampard’s rights as to remove
the tenancy from the Agricultural Holdings Act. One drive perhaps two days a
year is involved, and the release pen is also important to Mr Lampard’s
shooting generally, but he makes substantial amounts of hay from the field,
and, as I understood it, Mr Pryor did not argue that the shooting rights were
enough to exclude the tenancy from the Act. I consider that they did not.
It follows
that Mr Lampard is entitled to a yearly tenancy of the field and shooting
rights protected by the Act.
I am unable to
agree with the learned judge on that point. I can see no way in which it can be
said that the shooting rights are annexed to the grazing rights; they are
wholly separate. There is no connection between the right to take grass, which
is Mr Lampard’s only right, and shooting either in the field or elsewhere. I of
course accept that if there is comprised in a single tenancy some land used for
agricultural purposes and some not so used, the whole of the land is protected
by the Agricultural Holdings Act if the predominant use of the land is
agricultural. But that is not the position in this case. The case is one of a
special kind. Although the same negotiations dealt at the same time with both
the shooting rights and the grazing rights, there are in fact here two quite
separate bargains. In no sense were the shooting rights part of the tenancy or
licence over the field. They neither supported it nor had anything to do with
it. The consideration of £150 per annum was paid for the grazing alone. There
was no consideration for the shooting other than the gentleman’s understanding
that Mr Barker would be invited to shoot.
I think the
position can be illustrated by this example. Suppose there were a single
agreement in two parts, the first providing for a tenancy of a thousand acres
of agricultural land and the second for the occupation of a small house in
London. That would all be in the same agreement, but they would be wholly
separate transactions, the London house being in no way linked to the
agricultural tenancy of the land. It would, in my judgment, be ludicrous to say
that because the predominant purpose of the agreement was the agricultural
land, in some way the tenant was entitled to protection under the Agricultural
Holdings Act of the small house in London. By parity of reasoning, in this
case, there being nothing to connect the shooting rights and the grazing rights
other than the fact that the arrangement was reached at the same time, there is
no ground for saying that the shooting rights are annexed to the grazing
rights. They are separate agreements, there being in my judgment a gratuitous
right to shoot.
For those
reasons, in my judgment Mr Lampard enjoys no protected rights over the
shooting. He had a licence to shoot which was duly terminated by the
solicitors’ letter as from February 1 1983. I would accordingly allow the
appeal in relation to his shooting rights. The conclusion is that I would vary
the judge’s order so that it would contain only a declaration that the
plaintiff was entitled to a yearly right to graze field No 8200, excluding the
buildings thereon, which right is protected by the Agricultural Holdings Act
1948.
GRIFFITHS LJ
and the MASTER OF THE ROLLS agreed with the judgment and proposed order, and
did not add anything of their own. The appeal was allowed in part. There was no
order for costs in the Court of Appeal or below.
