Agricultural Holdings Act 1948, section 2(1), proviso — Whether oral arrangements constituted a grazing licence only within the proviso or a protected tenancy of an agricultural holding — ‘Specified period of the year’ — Whether a seasonal grazing licence, not referring to specific dates, was within the proviso — Appeal by defendant from decision of county court judge holding that the arrangements in question constituted such a grazing licence and did not create a tenancy — Defendant made a number of criticisms of judge’s decision — He submitted that the judge made no express reference to the proviso to section 2(1) and did not have in mind the words ‘during some specified period of the year’ — Defendant’s submissions under this head appeared to challenge the established line of authority which decided that a seasonal grazing licence, not identified by reference to specific dates but related to grazing or mowing periods, fell within the proviso — Authorities on this subject reviewed — Defendant also submitted that the judge had erred in regard to the burden of proof, saying at one point that ‘so far as the onus of proof is concerned each had a liability to establish what he or she contends for’ — The judge’s finding was also criticised as being contrary to the weight of evidence — Held by the Court of Appeal, rejecting these criticisms, that there was ample evidence to justify the judge’s conclusion that the arrangements in this case constituted a grazing licence within the proviso to section 2(1) — There was plenty of authority that seasonal grazing satisfied the requirement of ‘some specified period of the year’ — The judge was aware that the burden of proof as to the application of the proviso was on the landlords and there was no misdirection in this respect — As regards the evidence that the arrangements constituted a seasonal grazing licence, the judge was entitled to take into account, inter alia, statutory returns made by the landlord over a period of years indicating the use of land for seasonal grazing — Appeal dismissed
The following
cases are referred to in this report.
Butterfield v Burniston (1961) 111 LJ 696; 180 EG 597, CC
James v Lock [1978] EGD 6; (1977) 246 EG 395, [1978] 1 EGLR 1, CA
Lampard v Barker [1984] EGD 52; (1984) 272 EG 783, [1984] 2 EGLR 11,
CA
Luton v Tinsey [1979] EGD 1; (1978) 249 EG 239, [1979] 1 EGLR 1,
CA
Mackenzie v Laird 1959 SLT 268; 1959 SC 266
Reid v Dawson [1955] 1 QB 214; [1954] 3 WLR 810; [1954] 3 All ER
498; (1954) 53 LGR 24, CA
Scene
Estate Ltd v Amos [1957] 2 QB 205; [1957] 2
WLR 1017; [1957] 2 All ER 325; (1957) 56 LGR 14, CA
This was an
appeal by the defendant, Brian C Yeend, from a decision of Judge Sir Ian Lewis
QC at Bristol County Court, granting possession of certain fields at
Rockhampton Green, Rockhampton, Berkeley, in the county of Avon, to the owners,
Sylvia May Ann Watts, Joan Elizabeth Bendall and Freda Doreen Davis,
executrices of the estate of the late Violet Elizabeth Ann, and respondents to
this appeal.
Mark West
(instructed by Robbins Olivey & Blake Lapthorn, agents for Blakemores, of
Tetbury, Glos) appeared on behalf of the appellant; Colin Sara (instructed by
Kirby Simcox, of Bristol) represented the respondents.
Giving
judgment KERR LJ said: This is an appeal by the defendant from a judgment given
by His Honour Judge Sir Ian Lewis QC at Bristol County Court on September 18
1985. The plaintiffs are the personal representatives of the estate of Violet
Elizabeth Ann (to whom I shall refer as ‘Mrs Ann’). The defendant, Mr Brian C
Yeend, is a farmer in the same locality.
Mrs Ann died
on October 18 1982. She had been the owner of a house and a number of fields at
Rockhampton Green, Rockhampton, Berkeley, in the county of Avon. The dispute is
the familiar one, as to whether an agreement or arrangement between a landowner
and a local farmer in relation to some fields was for a grazing licence or a
tenancy protected by the Agricultural Holdings Act.
An agreed plan
shows that, apart from her house and a driveway, Mrs Ann owned an adjoining
orchard with some derelict farm buildings and four fields, one of which was a
large one adjoining the orchard and the house and the other three all separate.
The Ordnance Survey number of the orchard was 116 and the numbers of the fields
were 117, 126, 184 and 187. It is common ground that Mr Yeend had some use of
those fields, the issue being whether he merely had a grazing licence or a
tenancy.
The
particulars of claim plead as follows in para 3:
At the date
of her death
Mrs Ann
had permitted
the Defendant to take the grass keep from
the four
fields to which I have referred
during a
specified part of the year pursuant to the proviso to section 2 of the
Agricultural Holdings Act 1948. The Licence so to take the grass keep was terminated
upon the death of the deceased, or, alternatively, at the end of the period of
the Licence then current, and has not since been renewed.
Asked for
particulars of that agreement, the plaintiffs said that the agreement had been
made orally, and then I read from the further and better particulars:
The
Plaintiffs have no knowledge of the oral words used by either the Deceased or
the Defendant nor when such agreement was made. The
for the sale of the grass keep for a specified portion of the year as evidenced
by the Deceased’s return to the Ministry of Agriculture in 1979 when the
Deceased stated, in writing, that 5 hectares of land was let seasonally in 1979
to another person for cropping, haymaking or grazing.
The 5 hectares
referred to the area of the four fields, and there was an additional 0.1
hectare referred to in some of these returns which related to the orchard. The
acreage of the area is about 12 1/2.
The amended
defence and counterclaim pleaded in substance as follows; I refer to para 4:
By an oral
agreement made between the Defendant and the deceased in or about
it was
originally December 1970, and that was amended to the spring of 1968; nothing
turns on the fact that there was a second thought about the date
[the
deceased] granted to the defendant the exclusive occupation of approximately
12.5 acres of agricultural land, together with the use of certain buildings and
a yard adjacent thereto, all situate at Rockhampton Green and so forth, at an
annual rent of
it was
originally £100, but that has been amended to £60
payable
half-yearly in advance on December 1 and June 1 in each year.
Then
particulars are given of the agricultural land, buildings and yard with
reference to the Ordnance Survey numbers, including the orchard and the farm
buildings in it. The reference to the yard is to the area surrounded by those
buildings.
The defence
gives lengthy particulars of what the defendant claims to have done on the land
to make good his claim that he was a tenant. There was then a counterclaim for
one of two alternative declarations. The first was that he had a tenancy of the
land and buildings. The alternative declaration claimed was that he had a
licence in respect of the land and buildings which took effect as a tenancy
from year to year pursuant to the provisions of section 2 of the Act, and a
declaration that this was a protected tenancy.
The defendant
farmed other land in partnership with his father, who also gave evidence and
played a part in the history. He also rented some other land and had a normal,
formal written tenancy agreement concerning that other land. But, as can be
seen from what I have already mentioned, it is common ground that the agreement
with which this appeal is concerned was informal, oral and was never referred
to in any document which passed between the parties during the 14 years or so
from 1968 to 1982 when it is common ground that it was in existence.
It is also
common ground, I think, that the originally required annual payment was £60; it
then rose to £100, and in about 1976 (although nothing turns on the date) it
went up to £150. It was payable in two instalments, one on July 1, as the
defendant says, and one in December. Whatever the agreement between Mrs Ann and
Mr Yeend was, it is also clear from some earlier documents which have survived
that it followed on from another yearly arrangement which she had, in that case
certainly limited to the taking of the grass, with a firm called Sandoe Luce Panes
& Johns. That was, on any view, of a different nature. They had the right
to take and dispose of the grass each year, I think from 1966 to 1968, but on
the basis that if they took it by mowing, as appears to have been the position
throughout, they would then advertise and sell it and charge Mrs Ann with the
expenses and a commission. Both sides have sought to draw attention to the
difference between that arrangement and the one with Mr Yeend, which was
certainly concerned with his actually making use of the land. But the judge
clearly felt unable to draw any conclusion as to the reasons why different
arrangements were made. I am in exactly the same position. It seems to me that
no conclusion can be drawn as to whether, in making a change, Mrs Ann wanted to
create a tenancy or merely what I have referred to as a grazing licence. It
should be mentioned that she and the Yeend family were originally close
friends; in particular, she was friendly with Mr Yeend’s mother and also with
his father. But there was then some falling out because Mrs Ann had not been
invited to the christening of a child of the family. That again is not
something on which I can base any inference, let alone conclusion; and nor did
the judge. That is the background.
I should say
at once that the judge, having heard witnesses on both sides for a considerable
time, came to the clear conclusion that the right which Mr Yeend had was
limited to a grazing licence which, although he does not mention the point
expressly, in his view obviously fell within the proviso of section 2(1) of the
Agricultural Holdings Act 1948. He reached the conclusion on a number of
grounds, to which I shall be referring.
First I must
read the section:
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 . . . 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.
That states the
general position that the grant of an interest less than a tenancy from year to
year, or for a licence in relation to agricultural land, will take effect as an
agreement for the letting of the land for a tenancy from year to year; and that
of course has the effect that it enjoys the protection of the Act and other
statutory provisions in a number of respects.
There then
follows the important proviso, and it is on this that most of the cases have
turned:
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.
Before I come
to the evidence, I should deal with two points of law which, as Mr West
submitted, show that the judge had approached the matter on an erroneous basis.
Unlike Mr Sara who represents the plaintiffs, Mr West did not appear below. In
connection with Mr West’s submissions it should also be noted that this is a
very experienced judge sitting habitually in that part of the country, and that
the problem raised by this case is not at all an unfamiliar one in that county
court and, no doubt, many county courts in rural areas. In fact we were
referred to another decision of this court which had come from the same county
court and in which the same firm of solicitors was involved on behalf of the
plaintiffs.
The first
point of law is based on the fact that the judge makes no express reference to
the proviso to section 2(1). Mr West does not go so far as to suggest that the
judge did not have the proviso in mind. It was pleaded, and of course he had it
in mind. But what Mr West submits is that the judge did not have in mind the
words ‘during some specified period of the year’.
The position
in that regard is as follows. It is clear from the judgment and the pleadings,
and from what Mr Sara has told us, that the contested issue in the court below
was, on the one hand, the plaintiffs’ contention that this was a grazing
licence — that is to say, a grass-keep agreement, or whatever expression one
chooses to use; and on the other hand the defendant’s positive contention that
he had a full tenancy from year to year. That was the issue, and everyone — the
judge, the parties and their legal advisers — assumed, and had in mind, that if
the agreement was only in the nature of what I have called a grazing licence,
then it would fall within the proviso.
Mr West’s
position is this. He does not dispute — indeed, he cannot dispute — that that
was how the case was conducted and contested below. But, as I follow his
submission, he says that this involves the conclusion that everyone proceeded
on an erroneous basis of law. What he submits is that, having regard to the
evidence, which undoubtedly gave Mr Yeend some rights in relation to the land,
it was not sufficient to conclude, as the judge did, that the agreement was
merely one for a grazing licence — or, as he referred to it, a seasonal grazing
licence — because so to look at it ignores the words ‘during some specified
period of the year’. On this appeal Mr West accordingly seeks to take a point
which I am quite satisfied was never taken below. But, of course, if he is
right in law he is entitled to take it. At any rate I proceed on this basis
without deciding whether it is possible for parties, by some agreement, implied
or tacit, to produce the same effect as the proviso even if its precise terms
are not satisfied.
But I am quite
clear that the judge did not err in his approach to the proviso, although he
makes no reference to it. He referred repeatedly to a grazing licence, or a
seasonal grazing licence, and he clearly had in mind that that would be
sufficient, if established, to attract the protection of the proviso. For
instance, he says in his judgment:
The Defendant
contends that he had a protected agricultural tenancy. The Plaintiffs contend
that it was a grazing licence. So far as the onus of proof is concerned each
had a liability to establish what he or she contends for.
I shall come
back to the last sentence. Then he refers to one of the
clearly attaches considerable importance. He quotes from that by saying:
It
specifically states ‘I include land on this holding let by you for seasonal
grazing’.
Finally on
this aspect, having reviewed some of the evidence and contentions, he says:
All this
confirms the grazing agreement. There was further friendly and informal
arrangement that it was to continue on indefinitely but the land was not to be
used throughout the year.
Pausing there,
Mr West sought to submit that this meant that what was not to continue
throughout the year was the ‘further friendly and informal arrangement’; not
the grazing agreement. In my view, that is a clear misconstruction of this
passage. When he said ‘All this confirms the grazing agreement’ and went on to
say that there was ‘a further friendly and informal arrangement that it was to
continue on indefinitely’, he was saying that there was a grazing agreement, and
there was a further informal arrangement that ‘it’, the grazing agreement, was
to continue on indefinitely — that is to say, in successive years — unless
somebody changed their mind. Then he went on to say ‘but the land was not to be
used throughout the year’. That was clearly his view of what had been agreed.
At the end of the judgment he said: ‘As to the terms of that arrangement, what
was agreed here, I am quite certain, was a grazing licence’.
The issue on
this aspect is therefore whether a seasonal grazing licence, not related to any
specified period in the year but merely to the grazing or mowing periods, falls
within the proviso to section 2(1). In that regard I am clear that Mr West is
not correct in submitting that by approaching the case on that basis, which, as
I have said, was the basis on which both sides and the judge approached it,
there was any error of law.
We have been
referred to a number of cases and I begin by mentioning them all for the sake
of completeness. They were: Reid v Dawson [1955] 1 QB 214; Scene
Estate Ltd v Amos [1957] 2 QB 205: Butterfield v Burniston,
a decision from the Harrogate County Court reported in (1961) 111 LJ 696; Luton
v Tinsey, a decision of this court reported in [1979] EGD 1; James
v Lock (1977) 246 EG 395, [1978] 1 EGLR 1; Lampard v Barker
(1984) 272 EG 783; and finally, because I noticed a reference to it in Butterfield
v Burniston, the court referred both parties to an important decision of
the Court of Session, Mackenzie v Laird 1959 SLT 268.
It seems to me
that on the authorities, particularly Scene Estate Ltd v Amos and
Mackenzie v Laird, the judge was clearly entitled to conclude
that if the parties contemplated a seasonal grazing licence which, being
seasonal, would ipso facto be for less than a year, then the requirement
that the licence must be for some specified period of the year was satisfied.
In Scene
Estate v Amos, at p 211, Denning LJ (as he then was) put the
position quite generally as follows in the context of the proviso:
I do not
think that the word ‘contemplation’ in the proviso should be given the meaning
which Mr Megarry seeks to put upon it. In my opinion the object of the word
‘contemplation’ in the proviso is to protect a landlord who has not expressly
inserted a provision that it is for grazing only, or for mowing only, or that
it is for a specified part of the year; but, nevertheless, both parties know
that that is what is contemplated. Often a landlord may let a field to a man by
word of mouth, saying: ‘You can have the field this year the same as you had it
last year’. Both sides mean it to be for grazing only and mean it to be only
for a few weeks of the spring, but they do not say so expressly. In such
circumstances, even though nothing is expressed in the agreement, nevertheless
the landlord can still take advantage of the proviso. That seems to me to be
the real object of introducing the ‘contemplation’ of the parties.
Denning LJ’s
reference to ‘a few weeks of the spring’ was clearly given only as an
illustration or in the context of the facts of that case, which was concerned
with periods of three months in each year. Parker LJ said that he agreed and
that the words ‘specified period of the year’ were equivalent to ‘specified
part of the year’.
In the Butterfield
case in the Harrogate County Court a grazing tenancy granted, or understood to
have been granted, by reference to the grazing season was treated as a term
well understood by farmers and to be within the scope of the proviso. His
Honour Judge McKee cited and followed Mackenzie v Laird, the
Scottish case to which I have referred.
In that case
there was a written agreement which provided expressly for a seasonal let for
grazing purposes. The issue was whether this satisfied the requirement of the
proviso, viz an agreement for the use of the land only for grazing or
mowing during some specified period of the year. The three members of the Court
of Session all concluded that the proviso was satisfied.
The Lord
Justice-Clerk, Lord Thomson, said:
The only
question at issue is whether in the absence of definite terminal dates it is
shown that what was in contemplation was some specified period of the year. In
the present case there are no dates fixed as the beginning and end of the
period but I do not see that fixed or specific dates for the beginning and end
are essential. What the proviso is excepting is the use of the land only for
grazing or mowing and these uses are in essence seasonal. None can give in
advance in any particular year or indeed in any particular locality a specific
date when the land will be ready for the start of either operation nor can it
be said in advance when either will finish. What matters to the agriculturalist
is the state of the land. What the tenant wants and what the landlord is
prepared to give is the season’s grass from the appropriate moment which nature
directs and to the subsequent moment when nature calls a halt. Accordingly once
it is admitted that what we have to do with is grazing and that it is for part
of a year only and once one accepts as the arbiter accepted that what is meant
by ‘grazing season’ or ‘seasonal let’ is unambiguous and well understood in
farming circles, there is no difficulty in saying that this case falls within
the proviso as what was in contemplation was ‘the use of the land only for
grazing or mowing during some specified period of the year’.
Lord Patrick
agreed and said, at the bottom of p 271, referring to the findings of the
arbiter:
. . . some
such lettings may specify particular dates as termini in the spring or autumn, but
it is a common practice not to specify dates; and that farmers know well what
is comprehended in a let of seasonal grazing. . . The sole argument against
that view is that the contemplated use must be use for some definite period of
days, weeks or months in the year. I do not find any such requirement in the
language of the proviso of subsection 2(1). The period must be specified, not
exactly defined, and, if the period of the year is one which is capable of
reasonably clear ascertainment, the language of the proviso is satisfied.
Lord
Mackintosh agreed, and said:
I think that
the expression ‘specified period’ as used in the . . . proviso is not limited
in its meaning to any period fixed by dates but includes any period which is so
named or described as to be identifiable by persons versed in agricultural
matters.
He said that
he agreed with the sheriff in his conclusion that a seasonal let of grazings
means a let
of grazings for a specified period, ie for a period so named or described as to
be identifiable in agricultural circles, and that accordingly the proviso
applied . . .
I
unhesitatingly follow that decision. The Act, or at any rate that part of it,
applies in Scotland just as it does in England. It would obviously be
undesirable for the Court of Appeal to differ from the Court of Session. But
the conclusion is really a matter of commonsense. The courts might of course
have interpreted the words ‘for a specified period’ very strictly. For good
reason they have not done so. On every occasion when this issue arose directly,
they have approached it in the same way as the parties and the judge in this
case. That deals with the first point raised by Mr West.
I can take the
second point much more shortly. Mr West submitted that the judge had
misdirected himself about the burden of proof. He submitted, undoubtedly
rightly, that in order to attract the protection of the proviso the burden of
proof is on the landowner. The question is, therefore, whether this judgment
shows that the judge misdirected himself in that regard. In my view it shows no
such thing.
I have already
referred to the passage in question where the judge said that the defendant
contended that he had a protected agricultural tenancy and the plaintiffs
contended that it was a grazing licence, and added:
So far as the
onus of proof is concerned each had a liability to establish what he or she
contends for.
Given that
there was a counterclaim claiming the declarations which I have read, that
statement is perfectly correct. Moreover, I do not think that the judge
overlooked the fact that in order to recover possession, against the background
of the undisputed evidence that Mr Yeend had some rights in relation to this
land, the effective onus of proof was on the plaintiffs.
Further on in
his judgment the judge said:
The important
thing is that the inference is that the arrangement is to be treated as a
protected tenancy unless there is evidence
and he went
on:
and I find
that here there is evidence to the contrary.
eIn relation
to the provision for payment, to which I have already referred, the judge said:
I have to
bear in mind that it does not appear to be in dispute that the money was to be
paid half-yearly. I don’t overlook that this points to a tenancy.
Finally, at
the end of his judgment, I have already read the final sentence, in which he
said:
As to the
terms of that arrangement, what was agreed here, I am quite certain, was a
grazing licence.
Having regard
to those passages I find it impossible to conclude that the judge misdirected
himself as to the onus of proof, which he obviously realised lay on the
plaintiffs, to bring themselves within the proviso.
Mr West also
faintly argued that the judge may have gone wrong when he said that the
inference was that the arrangement was to be treated as a protected tenancy
‘unless there is evidence and I find that here there is evidence to the
contrary’. He clearly did not merely mean ‘unless there is some evidence
to the contrary’. As shown by his judgment as a whole, he meant that he had to
be satisfied that there was sufficient evidence to satisfy the burden of proof
on the plaintiffs to displace the prima facie inference that an
agreement for the use of land referable to a year, whether it be a tenancy or a
licence, is a protected tenancy.
I then come to
the third aspect on which Mr West relied. This concerns the bulk of the
evidence and the main parts of the judgment concerned with the findings of
fact. Mr West submits that the judge’s decision was contrary to the weight of
the evidence. The position in that regard is as follows: Mrs Ann, as I have
already mentioned, was dead. A number of witnesses were called on both sides
and the judge had to do his best with the evidence before him. The witnesses on
the side of the plaintiffs included some relations of Mrs Ann and a Mr Freeman,
who had worked for Mrs Ann and had had the use of her garden for a number of
years, and also a Mr Child, who farms an adjacent farm. On the side of the
defendant the main witness was of course Mr Brian Yeend himself. In addition a
Mr Weston, who had worked for him for a number of years, gave evidence on the
defendant’s behalf. Finally, Mr Christopher Yeend, Mr Yeend senior, at the ripe
age of 81, also gave evidence.
The only
witness who could speak about the actual arrangement was of course Mr Yeend,
the defendant. In that regard I am bound to say that the judge was quite clear
about the impression which he formed of his evidence, after hearing him for a
long time, as can be seen from the lengthy notes of evidence. He said:
Let me say at
the outset that I have come to the clear conclusion that Mr Yeend is not a
witness on whom I can rely.
In the last
paragraph of his judgment he said:
I have
therefore come to the clear conclusion that the right granted here is that of a
grazing licence. I have said that I do not accept Mr Yeend’s evidence. He was
confused about a whole series of matters and his recollection was at fault
regarding the date of the original arrangement and the amounts and dates of variations
in payment.
I have already
read the last sentence of the judgment. I also notice from the judge’s notes of
evidence that Mr Yeend said at one point:
It was
arranged that I could mow and graze cattle as I wanted — nothing said of the
time of the year I could use the building.
So it is quite
clear that the judge did not accept from Mr Yeend that the original agreement
was for a full agricultural tenancy.
I must now
briefly refer to the evidence on which the judge mainly relied for his
conclusion that this was a seasonal grazing licence. The first part of his
judgment is concerned with certain returns which were made by Mrs Ann for
agricultural purposes. We have returns for a few of the 14 years covered by the
agreement and I do not propose to go through them all. But for instance, in
1975 there is a reference to land let for seasonal grazing, against which the
words ‘Let to B C Yeend’ appear. I should say in that connection that Mr Yeend
senior who, as I have said, was a fairly close friend of Mrs Ann, helped her to
complete these returns, and a number of the entries appear in his writing. In
the return for 1978 a number of boxes had to be completed by ticks where
applicable. Box 92 had to state the total number of cattle and calves and the
figure six was there inserted by Mr Yeend senior. There followed Box 93, which
also contained a tick against the following wording: ‘Please tick this box if
all the cattle entered at 92 above belonged to someone else and you are only
providing grazing’. Similarly in relation to the return for 1979 there was the
following entry. Under the heading ‘Seasonal use of Land’, Box 41 contained the
following wording: ‘Area of land let seasonally this year to another person for
cropping, haymaking or grazing’. The words ‘5 hectares’ were inserted, which
the judge thought, no doubt correctly, referred to the area of the four fields
to the exclusion of the orchard. There was the same type of entry as before in
Boxes 92 and 93, with a slight increase in the number of cattle and calves. It
is true that at the end of that return, in what was apparently Mrs Ann’s
handwriting in a box headed ‘Land given up’, she put the words ‘No Change’, and
then added ‘land is let to B C Yeend’, giving his address. But that is of no
weight against the entries referring to grazing. Mr Yeend senior said, in
relation to those entries which clearly and expressly point to seasonal
grazing, that they must have been mistaken, although he agreed that he had
helped Mrs Ann to complete these returns.
As I have already
mentioned, Mr Yeend senior farmed in partnership with his son, the defendant.
He was clearly experienced and must have known — as, I think, did everybody in
this case — the crucial difference between a seasonal grazing licence on the
one hand and an agricultural tenancy on the other. It must also be borne in
mind that Mrs Ann was only required to make these returns if she had not let
the land in question to Mr Yeend. On the other hand it was for Mr Yeend to make
returns which included this land if he had had a tenancy of it as he claimed.
The fact is that it was Mrs Ann who made the returns, with the knowledge and
assistance of Mr Yeend senior, and that the defendant, Mr Yeend junior, made no
returns including this land. Those facts speak for themselves. Of course I
agree with Mr West when he emphasises that Mr Yeend, the defendant, never saw
these returns and had no part in them, and that they could be construed as
having been used by Mrs Ann to serve her own purposes. But in the circumstances
that is an extremely far-fetched suggestion.
Mr West has
also submitted that one should not look at events after the original agreement
in order to interpret its effect. But, rightly, he does not seek to go to the
full length of that submission, which would often be impracticable in
circumstances such as those envisaged by this proviso. The cases show that one
has to have regard to what was in fact done on the land. The court is not
concerned with construing or interpreting a written agreement and therefore
precluded from deciding what the parties meant by the words which they used by
looking at their subsequent conduct. The proviso refers to what was in the
contemplation of the parties concerning the use of the land. In that context
one must have regard to what was happening on the ground, particularly if the
arrangement continued over a period of years.
Accordingly, I
conclude that the judge was entitled to take these returns into account. For
the reasons which I have explained, they clearly point in only one direction.
The remainder
of the evidence was concerned with accounts of the various activities which,
according to the various witnesses, Mr Yeend carried on or did not carry on in
relation to the land; to what extent he used the buildings; to what extent he
worked the land as if he were a tenant of it; or whether what he did was
consistent with his having only a seasonal grazing licence. In that regard two
main aspects were important. First, his use of the buildings and whether or not
he used them and the land for the whole of the year or only during the grazing
season. Second, whether the work that he did on the land was compatible with
his being a tenant, with full responsibilities for the land, or whether Mrs Ann
retained these responsibilities on the ground that she had not let it. In that
connection there were references to hedging, ditching, gates and matters of
that kind.
What the judge
said about those parts of the evidence is as follows:
So far as the
buildings are concerned I accept Mr Bendall’s evidence that he did not see the
buildings used in the winter months. So far as the buildings are concerned I
accept that the buildings were used at times but not throughout the year. I
believe that the buildings were used contemporaneously with the grazing and that
if the land was wet it was reasonable that they must have been.
A little later
on, dealing with hedging and ditching, his finding is favourable to Mr Yeend to
the extent that Mr Yeend did the work or had it done. But the important
question was who paid for it. The judge said:
I accept that
Mr Yeend did the hedges and ditches and fixed the gates. But I bear in mind
that Mrs Ann was asked by him to pay the bill and she agreed. The importance of
this was that he asked her for money though she died before she could pay. This
would not be the position if it was a tenancy. He also asked her about the
draining. If Mr Yeend had a tenancy he would have drained without asking. Also
with the draining he asked her for money
grazing for his own benefit and to make better use of the land subject to the
grazing licence.
That was the
judge’s conclusion on a very large part of the evidence through which Mr West
had taken us. Some aspects supported either view. But I find it quite
impossible to hold that the judge was not entitled to reach the conclusions
about the buildings, the hedging and ditching and so forth which I have just
read. On the contrary, on the weight of the evidence, I think it supported his
findings.
In all the
circumstances I am left in no doubt but that this appeal must be dismissed.
Agreeing,
SWINTON THOMAS J said: As I see it, the first of the two main issues which
arise on this appeal is whether the appellant’s occupation was by way of a
tenancy or by way of a grazing licence, and whether before the learned judge it
was proved by the plaintiff that the occupation was by way of a grazing
licence.
On that issue
the trial judge found quite clearly that the occupation was by way of a grazing
licence. On the last page of his judgment the judge said:
As to the
terms of the arrangement, what was agreed here, I am quite certain, was a
grazing licence.
That issue was
a question of fact; in my judgment there was ample evidence upon which the
learned judge was entitled to come to the conclusion to which he in fact came.
My lord has reviewed that evidence in the course of his judgment and it is not
necessary for me to do so again. The learned judge was entitled to rely, as he
did, upon the fact that he found the appellant to be an unsatisfactory witness,
upon whose evidence he could not rely.
The second,
and in my view crucial, question is whether the grazing licence was made in
contemplation of use of the land for grazing during some specified period of
the year, as set out in the proviso to section 2(1) of the Act of 1948. As has
been pointed out, those words are set out in para 3 of the particulars of
claim; in the defence that paragraph is formally denied but, more relevantly
for this purpose, there is a counterclaim. In para 12 of the defence and
counterclaim the appellant alleges:
On a true
construction of the said agreement and in the events which have happened the
Defendant at all material times held the said land, buildings and yard from the
deceased as a tenant thereof and such tenancy is protected by the provisions of
the Agricultural Holdings Act 1948.
He then makes
two alternative counterclaims:
(a) A declaration that on a true construction of
the said agreement made between the Defendant and the deceased in or about the
Spring of 1968 and in the events which have happened, the Defendant holds a
tenancy of the said land, buildings and yard and that such tenancy is protected
by the Agricultural Holdings Act 1948.
Then
alternatively:
(b) A declaration that if the said agreement made
between the Defendant and the deceased in or about the Spring of 1968 was a
licence to occupy the said land, buildings and yard such licence has taken
effect as a tenancy from year to year pursuant to the provisions of section 2
of the said Act and that such tenancy is protected thereby.
In those
circumstances, and bearing in mind the experience of the learned judge, I find
it quite impossible to accept that he would not have had in the forefront of
his mind in this case the terms of the proviso to section 2(1) of the relevant
Act.
The learned
judge had said, on the penultimate page of his judgment, that there was further
friendly and informal arrangement that it — quite clearly that refers to the
grazing agreement — was to continue on indefinitely, but the land was not to be
used throughout the year.
Clearly, in my
view, the judge was there finding that the appellant’s occupation was by way of
a seasonal grazing licence. ‘Seasonal grazing’ is a term which is well
understood in agricultural circles and, as was said Mackenzie v Laird,
seasonal grazing does not have to be for the same period of time during every
year, but is none the less in contemplation of the use of the land for grazing
during some specified period of the year. In my judgment, that clearly is
exactly the position in the instant case.
Accordingly, I
am quite satisfied that the plaintiffs were entitled to possession of the land
the subject-matter of the claim, and that the learned judge came to the right
conclusion, and therefore I, too, would dismiss this appeal.
The appeal
was dismissed with costs. Possession was ordered within 28 days of judgment.
