Agricultural Holdings Act 1986, section 12 and Sched 2, para 4 — Frequency of rent arbitrations — Three-year interval and disregards thereof — Disregard of any reduction of rent agreed in consequence of a change in the fixed equipment — Meaning of fixed equipment — Whether a farmhouse constituted fixed equipment for this purpose — Appeal from decision of county court judge who held that it did — Decision reversed — Surrender of farmhouse not a change in the fixed equipment but a change in the holding itself — Para 4(2)(b) of Sched 2 not applicable
in this case was whether a demand for arbitration by the tenants in respect of
the rent of the holding was effective or not — The rent of the holding had been
fixed by agreement in 1983 at £21,650 pa from October 11 1983 — By an agreement
in 1985 it was agreed that the tenants would surrender the cottage known as
Brick Kiln Farmhouse (for which they had no further use) and the rent of the
holding would be decreased by £100 from £21,650 to £21,550 pa — Notices
demanding arbitration were served by both landlord and tenants, on October 2
and October 8 1986 respectively, but it was the tenants’ notice which was
material for the purpose of the present proceedings — The landlord in fact,
after an arbitrator had been appointed, objected to the arbitration proceeding,
on the ground that the arbitrator had no jurisdiction (an objection
inconsistent with the landlord’s own notice and statement of case) — The
arbitrator, not surprisingly, stated a special case — The county court judge
decided in favour of the tenants and remitted the matter to the arbitrator for
him to proceed — The landlord appealed
ground that for the purpose of section 12 of the 1986 Act ‘the next termination
date following the date of the demand for arbitration’ was October 11 1987 —
The dispute was as to what, with reference to that date and the three-year bar,
was the date from which there took effect a previous increase or reduction of
rent — The landlord contended that the date from which there took effect a
previous reduction was the date of the 1985 agreement to surrender the
farmhouse, April 29 1985, which resulted in a reduction of £100 pa in the rent
— This date was less than three years before October 11 1987, so that, as a result
of para 4(1)(b) of Sched 2, the demand for arbitration was ineffective — The
tenants, on the other hand, contended that the date from which there took
effect a previous increase of rent was October 11 1983, which was more than
three years before October 11 1987, so that the demand for arbitration was
effective — The tenants’ reply to the landlord’s contention was that April 29
1985 could not be used as a point of reference for the application of the
three-year bar, as para 4 (2)(b) provided that a reduction of rent agreed in
consequence of a change in the fixed equipment should be disregarded for that
purpose — The landlord’s answer, which was accepted by the Court of Appeal as
correct and concluded the matter, was that the disregard provision in para
4(2)(b) did not apply because a surrender of part of a holding, whether or not
it includes, or even consists of, a building or other fixed equipment, is not a
‘change in the fixed equipment’ but a change in the holding itself — It is no
different from a surrender of bare land forming part of the holding — The
result therefore was, as the landlord had submitted, that the date from which
there took effect a previous reduction of rent was April 29 1985, less than
three years before October 11 1987 — Consequently the tenants’ demand for
arbitration was ineffective — Appeal allowed
No cases are
referred to in this report.
This was an
appeal by Sir Rupert Mann Bt, the landlord of an agricultural holding known as
Common Farm, Billingford, Norfolk, from a decision of Judge Hyam, in Norwich
County Court, in favour of the tenants, Edgar Stanley Gardner and John Edgar
Gardner, on a case stated by an arbitrator under the Agricultural Holdings Act
1986. The question concerned the effectiveness of a demand by the tenants for
arbitration in regard to the rent of the holding.
Paul Morgan
(instructed by Burges Salmon, of Bristol) appeared on behalf of the landlord;
Robert Bailey-King (instructed by Sharpe Pritchard, agents for Howes Percival,
of Norwich) represented the respondent tenants.
Giving the
first judgment at the invitation of Purchas LJ, NOURSE LJ said: This is an
appeal against a decision of His Honour Judge Hyam given in the Norwich County
Court on a special case stated by an arbitrator under the Agricultural Holdings
Act 1986. Shortly stated, the question for decision is whether a demand that
the amount of an agricultural rent should be referred to arbitration is
effective or not.
The landlord
is Sir Rupert Mann. The subject-matter of the tenancy is an agricultural
holding known as Common Farm, Billingford in Norfolk. The tenancy derives from
a tenancy agreement dated September 28 1970 and made between the landlord’s
predecessor in title, Sir Edward John Mann, of the one part and Edgar Stanley
Gardner of the other part. The term of the tenancy was limited to begin on
October 11 1970 and to continue from year to year until determined by either
party giving to the other not less than 12 months’ previous notice in writing
expiring at the end of the second or any subsequent year. By a memorandum dated
October 7 1983 and made between the landlord of the one part and Edgar Stanley
Gardner and John Edgar Gardner (‘the tenants’) of the other part it was agreed,
first, that the tenants would thereafter be the joint tenants of the holding
and, second, that the rent would be £21,650 pa with effect from October 11
1983.
By a
memorandum dated April 29 1985 and made between the landlord of the one part
and the tenants of the other part the tenants agreed to surrender and deliver
up possession as from May 1 1985 of ‘the cottage known as Brick Kiln Farmhouse,
Billingford’ and the landlord agreed to accept such surrender. It was also
agreed that the landlord should not claim dilapidations against the tenants on
quitting the cottage and that the tenants should not seek compensation from the
landlord for any matters arising on their quitting the same. Further (and this
is important), it was agreed that the rent of the holding should be decreased
by the sum of £100 from £21,650 pa to £21,550. Brick Kiln Farmhouse had
previously been occupied by an employee of the tenants who had moved elsewhere,
so that the tenants no longer had a use for it.
Pursuant to
section 12(1) of the 1986 Act, notices demanding arbitration dated October 2
and 8 1986 on behalf of the tenants and the landlord respectively were duly
served. The latter notice did not add anything to the former and, save for one
purpose which I will mention, it can be ignored. At that time the total area of
the holding was 434.875 acres. The narrative can be taken up at para 1(5) of
the special case, which is part of the agreed statement of facts and reads as
follows:
With effect
from 11th October 1987, two additional parcels of unreclaimed land were
included in the holding and the rent was varied. The parcels were: —
(a) 3.738 Acres approximately, outlined red on
the attached plan (No. 2).
(b) 1.081 Acres approximately, outlined blue on
the attached plan (No. 3).
The terms of
the tenancy as revised were reduced into writing in a memorandum undated and
not signed by the Tenants. This, however, contained a mathematical error. The
existing rent prior to the variation was incorrectly stated to be £21,650 and
not £21,550.
The rent
increase wef 11 10 87 was from £21,550 to £21,640. The payments actually made
were adjusted and revised accordingly. Subject to that amendment the memorandum
in this respect accurately reflects the matters agreed between the parties.
That undated
memorandum of October 1987 was signed by the landlord but not by the tenants.
It was expressed as an agreement to take effect from October 11 1987. By
clauses 1 to 3 it was agreed that ‘the landlord shall add to the Holding’ the
two parcels of land and that ‘the rent for the Holding’ should be increased in
the first case by an initial sum of £37 subject to annual increases thereafter
until October 10 1992 and in the second case by the sum of £53. Thus the
initial annual increase was £90. Clause 4 of the memorandum, amended as
mentioned in the special case, said:
The rent for
the Holding shall therefore be increased by the sum of £90.00 from £21,550 to
£21,640.
By clause 6 it
was provided that except as varied the terms and conditions of the original
tenancy agreement and supplementary memoranda should remain in full force and
effect.
On November 26
1987, pursuant to the tenants’ notice demanding arbitration, Mr J H Harris
FRICS FAAV was appointed as arbitrator and statements of case were subsequently
put in on both sides. The tenants’ contention was that the rent properly
payable from October 11 1987 ought to be less than the existing rent. The
landlord contended that it ought to be more than the existing rent. In due
course a hearing was fixed for November 14 1988, but about two weeks beforehand
solicitors acting on behalf of the landlord, relying on the 1986 Act, Schedule
2, para 4(1)(b), objected to the arbitration’s proceeding. Although that
objection was inconsistent both with the landlord’s own notice demanding
arbitration and with his statement of case, it has not been suggested, at any
rate in this court, that it is not open to him to take it. This change of tack
suggests an apprehension on the landlord’s part that the arbitrator might
reduce the rent below its existing level.
The practical
result of the objection was the stating of the special case, which came before
Judge Hyam on November 22 1989, when the questions raised were answered in
favour of the tenants and the matter remitted to the arbitrator for him to
proceed accordingly. The landlord has now appealed to this court.
The provisions
for arbitration of rent supplementary to section 12 of the 1986 Act are
contained in Schedule 2. Paras 4, 5 and 6 of that Schedule are headed
‘Frequency of arbitrations under section 12’. So far as material, para 4 is in these
terms:
(1) Subject to the following provisions of this
Schedule, a demand for arbitration shall not be effective for the purposes of
section 12 of this Act if the next termination date following the date of the
demand falls earlier than the end of three years from any of the following
dates, that is to say — . . .
(b) the date as from which there took effect a
previous increase or reduction of rent (whether made under that section or
otherwise), . . .
(2) The following shall be disregarded for the purposes
of subpara (1)(b) above — . . .
(b) an increase of rent under subsection (1) of
section 13 of this Act or such an increase as is referred to in subsection (3)
of that section, or any reduction of rent agreed between the landlord and the
tenant of the holding in consequence of any change in the fixed equipment
provided on the holding by the landlord; . . .
In regard to
that paragraph, it is agreed that the next termination date following the date
of the demand — see section 12(4) — was October 10 or perhaps 11 1987; it
matters not which. If, for the
as from which there took effect a previous increase of rent was October 11
1983, then that was more than three years before the relevant termination date
and para 4(1) does not render the demand for arbitration ineffective. That
indeed is what the tenants, basing themselves on the memorandum of October 7
1983, have at all times contended to be the case. But the landlord, basing
himself on the memorandum of April 29 1985, contends that the date as from
which there took effect a previous reduction of rent was May 1 1985, so that
the demand for arbitration is rendered ineffective by para 4(1)(b).
Alternatively, he contends that the demand was, in one way or another, rendered
ineffective by the oral agreement which is recorded in the undated memorandum
of October 1987.
As to the
first of these contentions, Mr Bailey-King for the tenants relies on that part
of para 4(2)(b) which requires that, for the purposes of subpara (1)(b),
there shall be disregarded any reduction of rent agreed ‘in consequence of any
change in the fixed equipment provided on the holding by the landlord’. The
expression ‘fixed equipment’ is defined by section 96(1) of the Act to include:
. . . any
building or structure affixed to land and any works on, in, over or under land,
and also includes anything grown on land for a purpose other than use after
severance from the land, consumption of the thing grown or of its produce, or
amenity, and any reference to fixed equipment on land shall be construed
accordingly;
In the light of
that definition it is clear to me that Brick Kiln Farmhouse, being a building
or structure affixed to land, was part of the fixed equipment provided on the
holding by the landlord. On that footing Mr Bailey-King submits that the
agreement of April 29 1985, by surrendering the farmhouse back to the landlord,
effected a change in that equipment within para 4(2)(b). Immediately
before the agreement it was part of that equipment. Immediately afterwards it
was not. There was therefore a change in the fixed equipment. He also submits
that the £100 reduction of rent was agreed ‘in consequence’ of that change. And
he adds that the application of para 4(2)(b) is not disturbed by the
fact that the effect of the agreement was, as the learned judge correctly held,
to surrender not only the farmhouse but also the land within its curtilage,
which is thought to be of an area of about 0.603 acres. It was these submissions
which appealed to Judge Hyam when he decided the first question in favour of
the tenants.
The contrary
argument of Mr Morgan in regard to para 4(2)(b) is to this effect. He
submits, first, that the farmhouse and the land within its curtilage did not
fall within the definition of fixed equipment and, second, that even if it did
and there was a change in the fixed equipment within para 4(2)(b), the
reduction of rent was not made in consequence of it. I have already made it
clear enough that I would reject the first of these submissions and, on a view
of the agreement of April 29 1985 as a whole, I would also reject the second.
Mr Morgan’s
third submission is more impressive. He says that a surrender of part of the
holding, albeit of part which includes or even consists only of a building or
structure affixed to the land, is not a change in the fixed equipment provided
on the holding by the landlord. It is a change in the holding itself and, as
such, is no more within para 4(2)(b) than is a surrender of land to
which no building or structure is affixed.
Although my
mind has wavered on this question, I have come to a clear, if somewhat
reluctant, conclusion that Mr Morgan’s third submission is correct. Two further
considerations which he advances support it. First, the definition of fixed
equipment distinguishes between the building or structure on the one hand and
the land to which it is affixed on the other, a distinction which appears also
in sections 7 to 11 of the Act (which deal specifically with fixed equipment),
thus suggesting that the changes contemplated by para 4(2)(b) are
changes to the physique of the building or structure itself. Second, the first
part of subpara (2)(b) requires there to be disregarded any increase of
rent under section 13(1) of the Act or such an increase as is referred to in
section 13(3). Broadly stated, those are increases which result from
improvements carried out on the holding by the landlord, an exercise which
manifestly does not involve the addition of any land to the holding. That
supports the view that the changes in fixed equipment contemplated by para
4(2)(b) do not include those which involve the subtraction of any land
from the holding.
My reluctance
to arrive at this conclusion arises from a belief that it is unsatisfactory
that an agreement for a rent of £21,650 to be reduced by no more than £100
should have the result of putting back for up to three years the right of
either party to demand an arbitration of rent for the remainder of the holding.
In reality, there was no agreement on April 29 1985 that a rent of £21,550 was
the rent properly payable for the remainder of the holding as at May 1. That
figure was simply the result of an agreement that the amount deductible in
consequence of the surrender should be £100. Moreover, if the surrender had
been made without any reduction of rent, the date as from which there took
effect a previous increase of rent would have remained October 11 1983 and the
demand for arbitration would have remained effective. Be that as it may, Mr
Bailey-King has not argued that the £100 was de minimis and I have no
reason to think that such an argument, had it been put, would have succeeded.
In the end, therefore, my reluctance cannot be translated into any decision
contrary to that which I have indicated.
That makes it
necessary to consider an alternative argument on the first question which,
although rejected by the judge, has been revived by Mr Bailey-King under a
respondent’s notice put in out of time with the leave of the court. This argument
is founded on para 6 of Schedule 2 to the Act, which is in these terms:
Where under an
agreement between the landlord and the tenant of the holding (not being an
agreement expressed to take effect as a new contract of tenancy between the
parties) provision is made for adjustment of the boundaries of the holding or
for any other variation of the terms of the tenancy, exclusive of those
relating to rent, then, unless the agreement otherwise provides —
(a) that provision shall for the purposes of
sub-paragraph (1) of paragraph 4 above be treated as not operating to terminate
the tenancy, and accordingly as not resulting in the commencement of a new
contract of tenancy between the parties, and
(b) any increase or reduction of rent solely
attributable to any such adjustment or variation as aforesaid shall be
disregarded for the purposes of paragraph (b) of that sub-paragraph.
Mr Bailey-King
submits that the agreement of April 29 1985 was one by which provision was made
for adjustment of the boundaries of the holding within that paragraph. I am
entirely satisfied that it was not. Although there is neither definition nor
authority to guide us as to what is or is not an adjustment of the boundaries
of the holding, some assistance is gained from section 31(1)(a) of the
Act, which enables a landlord to give a notice to quit part of the holding if
it is given ‘for the purpose of adjusting the boundaries between agricultural
units or amalgamating agricultural units or parts of such units’. Mr Morgan
correctly submits that the landlord would not have been able to serve the
tenant with a notice to quit Brick Kiln Farmhouse under that provision. That
does not quite answer the question under para 6, because the conclusive
objection under section 31(1)(a) would have been that the notice was not
given ‘for the purpose’ of adjusting boundaries. It would have been given for
the purpose of taking back a cottage for which the tenants no longer had a use.
However, section 31(1)(a) does confirm the expectation which one might
anyway have entertained, namely that a surrender of part of the holding to the
landlord which is not an arrangement, putting in order, harmonisation or
adaptation (those are the dictionary meanings of ‘adjustment’) of the
boundaries between the holding and some other property cannot fall within para
6. It is impossible to describe the surrender which took place here as having
been any of those things.
On the facts
of this case the point is put beyond argument by the location of Brick Kiln
Farmhouse not on the boundary of the holding but at its centre. Even if it had
been on the boundary, my conclusion would have been the same. If Mr
Bailey-King’s argument were correct, it would defy not only the natural and
ordinary meaning of the expression which has to be applied; it would enable
para 6 to be used as a wholesale means of escaping from the effect of para 4 as
I have construed it.
For these
reasons, I think that Judge Hyam was right to reject the tenants’ alternative
argument on the first question. But since I respectfully disagree with his view
that the tenants can rely on para 4(2)(b), I would allow the landlord’s
appeal on that question. I should add that it seems very doubtful whether Mr
Morgan’s third and decisive submission was put to the learned judge or, if it
was, whether it was developed to the extent in which it has been developed by
Mr Morgan in his excellent argument in this court.
I would
therefore answer the three questions raised in para 4(a) of the special case as
follows:
The reduction
of rent of £100 per annum as from 1st May 1985 arising from the tenants’
surrender of the Brick Kiln Farmhouse —
(i) is a reduction within the terms of para 4(1)(b)
of Schedule 2 to the Act;
(ii) is not a reduction of rent within the terms
of para 4(2)(b) of Schedule 2 to the Act;
(iii) is not a reduction of rent attributable to an
adjustment of the boundaries of the holding under the terms of para 6 of
Schedule 2 to the Act.
The demands
for arbitration having been ineffective, we come to the questions in para 4(b),
the first of which is whether the arbitrator has jurisdiction to determine the
rent properly payable in accordance with his appointment. That question must be
answered in the negative and the second and third questions are now dead in any
event.
The questions
raised in para 4(c), which go to the second question argued on this appeal, are
expressed to arise only if the demands for arbitration were initially
effective, which, as I have now held, they were not. Having heard full argument
on the second question, we could certainly express a view on it, if we thought
it appropriate to do so. For my part, I do not think that it is. Although the
question has given rise to some interesting arguments on both sides, its
resolution depends mainly on the effect in law of the particular oral agreement
recorded in the undated memorandum of October 1987 and only very little, if at
all, on the construction of the 1986 Act. I have not been able to see that an
answer to it would be of any significant additional value in the present case
or of any general value outside it.
I would allow
this appeal and answer the material questions in the special case in the senses
which I have indicated.
Agreeing, GLIDEWELL
LJ said: In relation to the facts found by the arbitrator in this case
stated, the effect of para 4(1)(b) of Schedule 2, to the Agricultural
Holdings Act 1986, is that unless the reduction of rent agreed on April 29 1985
between the landlord and the tenants in regard to the surrender by the tenants
on May 1 1985 of Brick Kiln Farmhouse fell within one of the exceptional
categories in para 4(2) of that Schedule, then the demands for arbitration made
in October 1986 were ineffective, being made less than three years before the
next termination date following that reduction, that is to say October 10 or 11
1987.
The argument
of Mr Morgan on behalf of the landlord is to the effect that that decrease in
rent did not come within para 4(2)(b) of Schedule 2. As Nourse LJ has
said, the question is thus: was it a reduction of rent agreed between the
landlord and the tenants ‘in consequence of any change in the fixed equipment
provided on the holding by the landlord’?
‘Fixed equipment’ as defined in section 96(1) of the Act can, I agree
with Nourse LJ, clearly include a house on the holding. But, to my mind,
putting it quite shortly, the effect of the agreement of April 29 1985 was that
there was no change in that piece of fixed equipment, that is to say the house,
on May 1 1985. The house was unaltered. It ceased to be part of the holding
because of the surrender. In my view, the phrase ‘change in the fixed
equipment’ means some alteration of the equipment itself, which may include its
total removal or demolition, but a change which leaves the holding otherwise
unaltered.
I agree, too,
with the point, to which Nourse LJ has referred, that the first part of subpara
(2)(b) relates to an increase of rent under subsections (1) or (3) of
section 13 of the Act, that is to say an increase resulting from an improvement
carried out by the landlord. Such an improvement will include the addition of
fixed equipment but not an addition to the holding. It seems appropriate,
therefore, to construe this subpara as dealing with additions to and
subtractions from the fixed equipment, or alterations to the fixed equipment
which have the effect of subtracting from it, with consequent increases and
decreases in the rent which leave the holding itself otherwise unaltered.
For those
reasons, which really do no more than express in less felicitous language what
Nourse LJ has already said, I agree with him that this appeal should be
allowed.
On the other
points argued before us, namely the point argued by Mr Bailey-King that the
reduction of rent stemmed from an adjustment of the boundaries of the holding
under para 6 of Schedule 2, I agree with and add nothing to what Nourse LJ has
said. Like him, I do not think it necessary to answer the question arising out
of the oral agreement of October 1987. I, too, would therefore allow the appeal
and give the same answers to the questions as those proposed by Nourse LJ.
Also agreeing,
PURCHAS LJ said: The only questions which it is necessary to answer for
the disposal of this appeal are questions 4(a)(i) and (ii) and 4(b)(i). The
judge came to the conclusion that the reduction in rent of £100 fell within the
provisions of para 4(2)(b) of Schedule 2 to the Agricultural Holdings
Act 1986 and thus that para 4(1)(b) did not apply to render the demand
for arbitration effective.
The reduction
in rent involved arose out of an agreement of April 29 1985 under which the
tenant ‘agreed to surrender and deliver up possession of the cottage known as
Brick Kiln Farmhouse in all respects as though he had served on the landlord
full and sufficient notice to quit expiring on that date’. Para 4(2)(b)
of the Schedule provides that:
an increase
of rent under subsection (1) of section 13 of this Act or such an increase as
is referred to in subsection (3) of that section, or any reduction of rent
agreed between the landlord and the tenant of the holding in consequence of any
change in the fixed equipment provided on the holding by the landlord;
. . .
shall be
disregarded for the purposes of subpara (1)(b). The issue is, therefore:
did the surrender effected by the agreement amount to a change in the fixed
equipment within the meaning of that phrase in subpara (2)(b) of the
Schedule? It is necessary to look at two
other provisions of the Act.
Section 96(1)
provides a definition of ‘fixed equipment’:
‘fixed
equipment’ includes any building or structure affixed to land and any works on,
in, over or under land, and also includes anything grown on land for a purpose
other than use after severance from the land, consumption of the thing grown or
of its produce, or amenity, and any reference to fixed equipment on land shall
be construed accordingly;
This
definition clearly draws a distinction, Mr Morgan submitted, between the land
‘as such and the things fixed to it or growing on it or in its upper surfaces’.
The specific reference to building or structure in that definition, in my
judgment, is included to counteract the effect of the law which establishes
that anything fixed to the land becomes for the purposes of real property law
part of the land. The distinction, therefore, is drawn by this definition for
the purposes of the provisions of this Act.
Section 13 is
the other provision to which I will refer. That provides:
(1) Where the landlord of an agricultural holding
has carried out on the holding any improvement to which this section applies he
may by notice in writing served on the tenant within six months from the
completion of the improvement increase the rent of the holding as from the
completion of the improvement . . .
The section
then proceeds to deal in detail with the effect of that approach. It has not
been argued to the contrary that that section does not apply to a change in the
extent of the land comprised in the holding.
Para 4(2)(b)
in its first part deals with increases in rent and in its second part deals
with reductions in rent. Quite apart from the ordinary construction of the
definition of fixed equipment in section 96(1), it would be surprising, to say
the least, if in para 4(2)(b) the first part did not apply to changes in
the extent of the holding while the second part did. In my judgment, there is
no need for such a strained interpretation of para 4(2)(b). Its plain
intention is directed to exclude alterations to buildings etc on the land but
not to exclude changes in the extent of the land comprised in the holding. This
is precisely what is effected by the surrender by the tenants in accordance
with the agreement of April 29 1985 of Brick Kiln Cottage and its immediate
curtilage. I do not consider that there is anything to be gained by drawing
distinctions between the land immediately under the building and the land
surrounding it. This was a perfectly ordinary surrender of a tenancy and, as
such, did not come within the particular provisions of the Schedule with which
we have been dealing in this appeal.
I have also
come to the same conclusion as Nourse LJ on the issue raised in the
respondent’s notice, namely that para 6(b) of the Schedule does not
apply to the surrender of the farm. That provision is clearly directed towards
minor adjustments in boundaries without any substantial alteration in the
extent of the holding involved.
For those
reasons I also would answer the questions, which I mentioned earlier in this
judgment, to the effect that whereas para 4(1)(b) of Schedule 2 does
apply, para 4(2)(b) of Schedule 2 does not apply, and that para 6(b)
of Schedule 2 does not apply, and I would answer the questions 4(a)(i), (ii)
and (iii) in those respects.
As to the
final question, 4(b)(i), I would answer that in the negative.
For the
reasons given already by Nourse LJ, I do not consider it either useful or
appropriate to proceed to consider the issues which
appeal.
The appeal
was allowed, with costs of appeal; leave to appeal to House of Lords was
refused.
