Agricultural Holdings Act 1948–Question whether a holding ceased to be an agricultural holding protected by the Act as a result of cessation of agricultural activities in the course of the tenancy–New trial ordered as county court judge was in error in approaching the matter as a question of a breach of tenancy agreement suitable for decision by an agricultural land tribunal–Inadequate findings also by judge on conflicting evidence as to user–Principle stated that the protection of the 1948 Act is lost if agricultural activity is wholly or substantially abandoned during the course of the tenancy even if without the consent of the landlord–Strong evidence is, however, needed to show that agricultural user has been abandoned–Judge directed to consider, on the basis of his findings (including findings on new evidence which the parties were to be at liberty to adduce), whether during the two years or so leading up to the notice to quit the land was or was not substantially used for agriculture for the purpose of a trade or business
This was an
appeal by joint landlords, Peter Charles Smith, Rita Smith, Edward William
Evans and Millicent Grace Evans, from a decision of Judge Willcock at Yeovil
County Court in favour of the tenant, Roy Edward Wetherall. The case related to
a field or paddock of about an acre and a quarter in size. The tenant was the
plaintiff in the county court action in which he claimed an injunction to
restrain the defendants, the present appellants, from interfering with quiet possession
of the paddock. The defence was that the plaintiff’s tenancy had come to an end
as a result of a notice to quit and that the plaintiff was not entitled to the
protection of the Agricultural Holdings Act 1948 because the tenancy had ceased
to be an agricultural tenancy.
R A Henderson
(instructed by C J Wood, of Yeovil) appeared on behalf of the appellants; P B
Mauleverer (instructed by Porter, Mangnall & Co) represented the
respondent.
Giving the
first judgment at the invitation of Stephenson LJ, SIR DAVID CAIRNS said:
This is an appeal from a decision of His Honour Judge Willcock given on
February 21 1979 at the Yeovil County Court. It relates to a field or paddock
about an acre and a quarter in area which lies near to a rectory and was part
of the glebe land. By a written agreement made on March 19 1956 this paddock
was let by the rector to the plaintiff in these proceedings. It was let on a
yearly tenancy from Michaelmas 1955 at the rent of £3 a year. By clause 3 of
the tenancy agreement it was provided that:
The Tenant
shall manage the said land in a good husbandlike manner . . .
and that and
other indications in the agreement make it clear that it was at the start an
agricultural tenancy.
In the course
of time the reversion passed to the defendants, who are four in number: a Mr
and Mrs Smith and a Mr and Mrs Evans. Mr and Mrs Evans were the parents of Mrs
Smith. There has since been a divorce between Mr and Mrs Smith, but Mrs Smith
and her parents continue to live at the old rectory.
The question at
issue in these proceedings is whether this tenancy, having begun as an
agricultural tenancy protected by the Agricultural Holdings Act 1948, continues
to enjoy that protection. The plaintiff’s claim was for an injunction to
restrain the defendants from interfering with his quiet possession of the
paddock. The defendants, by their defence, claimed that the plaintiff’s tenancy
had come to an end and
effect.
At the trial
the learned judge held that the tenancy continued to be an agricultural one and
accordingly he found in favour of the plaintiff and awarded him £100 damages;
and it followed that the defendants’ counterclaim was dismissed. The defendants
appeal, contending that the holding had ceased to be an agricultural holding.
By their notice of appeal as originally presented–as it remained up to
yesterday–they claimed only a new trial, upon the basis that the learned
judge’s findings were not sufficiently clear to justify a firm decision one way
or the other. Leave was granted yesterday for the notice of appeal to be
amended so as to claim in the alternative to a new trial that judgment should
be entered for the defendants.
It is
convenient to refer straightaway to the Agricultural Holdings Act 1948, section
1, containing the definition of ‘agricultural holding’:
1(1) In this Act the expression ‘agricultural
holding’ means the aggregate of the agricultural land comprised in a contract
of tenancy, not being a contract under which the said land is let to the tenant
during his continuance in any office, . . .
No question
arises on the later words of that subsection.
(2) For the purposes of this and the next
following section, the expression ‘agricultural land’ means land used for agriculture
which is so used for the purposes of a trade or business . . .
The remaining
words of that subsection are irrelevant. There is a definition in section 94(1)
of ‘agriculture’ in these terms:
‘Agriculture’
includes horticulture, fruit growing and seed growing, dairy farming and
livestock breeding and keeping, the use of land as grazing land, meadow land
and various
other uses but, for the purpose of this appeal, the main words of that
definition which are relevant are the words ‘use of the land as grazing land.’
The tenancy
agreement having been entered into, it was in 1970 that the reversion passed to
the four defendants. Mrs Smith, the second-named defendant, runs a riding
school. The plaintiff is a farmer and his farm adjoins the paddock. Relations
between the defendants and the plaintiff, after the defendants had become his
landlords, do not seem at any time to have been happy. Acrimonious
correspondence began in September 1971. The first defendant was then asserting,
quite wrongly, that the tenancy would end at Michaelmas 1971. The immediate
reply on behalf of the plaintiff was that it was an agricultural tenancy which,
at that stage, was accepted on the part of the defendants and, accordingly, in
1973 the first defendant gave notice under the 1948 Act claiming reference to
arbitration of the question of increase of rent. Apparently, without the
necessity of going to arbitration, it was agreed that the rent should be
increased from £3 a year to £4 a year.
Another year
passed and in September 1974 the first defendant then gave notice claiming
arbitration for a further increase of rent. Again, it was unnecessary to go to
arbitration because there was an agreement for an increase in the rent to £20 a
year, and that agreement was put in writing on October 8 1974. So, up to that
stage, quite clearly the defendants were recognising this as being an
agricultural tenancy.
But certain
events happened between that time and September 1976 which led the defendants
to take the view that the tenancy was no longer an agricultural one and notice
to quit was served upon the plaintiff in September 1976, expiring at Michaelmas
1977. It is common ground that that would have been an effective notice except
for the provisions of the 1948 Act. The plaintiff, contending that the holding
continued to be an agricultural holding, through his solicitors gave a
counternotice in accordance with the 1948 Act on October 5 1976. Thereafter
there was correspondence between the solicitors for the two parties as to
whether the holding did indeed continue to be an agricultural holding within
the meaning of the Act.
In the course
of that correspondence the defendants’ solicitors wrote on October 26 1977
contending that the land had been used for a considerable time simply as a
jumping paddock. The reply from the plaintiff’s solicitors was that it was
continuing its character of an agricultural holding and was still being used
for agricultural purposes. It can be said at once that, if the use and the only
use were as a jumping paddock with no involvement in any business activity–or,
indeed, if it did involve a business activity–it would not amount to use for
agriculture, because such jumping could be regarded as a recreational purpose
and, within the recent decision of the House of Lords in Earl of Normanton
v Giles [1980] 1 WLR 29, would not be used for agriculture.
The plaintiff
started his action in November 1977 and by his particulars of claim, which were
very slightly amended only to increase the amount of his claim, he set out the
circumstances about the yearly tenancy, alleging that it was a tenancy under
the Agricultural Holdings Act 1948, and by paragraph 2 said:
The
Defendants are in breach of the covenant for the Plaintiff’s quiet enjoyment
implied by law by virtue of the said tenancy.
The Second Defendant
has taken possession of the above described field and by her action has
prevented and is preventing the Plaintiff from using the said field.
It was, in
fact, a correct allegation that the second defendant had indeed taken
possession of the field; a letter had been written to the plaintiff’s
solicitors saying that she had done so. The plaintiff claimed damages, which by
then were £500, and an injunction to restrain the defendants from further
interference.
By their
defence the defendants alleged that, since the tenancy agreement, the plaintiff
had not continued to use the land for agriculture, and the pleading went on to
say:
For a number
of years the Plaintiff has used the land only for grazing horses or ponies and
riding the said horses and ponies. By his conduct the Plaintiff has changed the
nature of the tenancy. Since the said change of use the Defendants accepted
rent from the Plaintiff.
The pleading
went on to set out a counterclaim, repeating the facts set out in the defence
and saying:
Since the
termination of the tenancy the Plaintiff has trespassed on the said land. . .
Damages were
claimed in respect of certain acts the plaintiff was said to have done on the
land, and then there was a claim for a declaration that the tenancy of the
plaintiff had been terminated by a notice to quit. The reply to that pleading
denied the allegations of the defence as to the change of user and said:
The Plaintiff
has used the land throughout the period of his occupation as agricultural land.
The said land has been used throughout for the grazing of cattle and horses.
The Plaintiff is entitled to graze horses on the said land and relies on the
contents of the aforementioned agreement. . .
By further and
better particulars of that reply the plaintiff said:
Horses have
been grazed on the land rented by the Plaintiff from the Defendants as part of
his agricultural business, these horses being limited to a maximum of two at
any one time and the land has also been used for grazing of cows, usually for
cows in calf, at times in conjunction with the Plaintiff’s adjoining river
field with the dividing gate being left open. The rented field has also been
manured and mowed for silage at least on one occasion. The Plaintiff has at
times erected jumps in the rented field when horses have been ridden and jumped
in that field by the Defendant’s wife and by children.
The matter
came before Judge Willcock for hearing on December 11 1978 and evidence was
then given. I do not find it necessary to refer to that except parts of the evidence
of the plaintiff and Mrs Smith, who was the principal witness on the
defendants’ side. The plaintiff in the course of his evidence said:
I used it to
graze horses and cattle and we may have used a bit also for cows with young
calves as a holding paddock. Field is very close to my farm houses. From time
to time horses only. From time to time cattle only. We leave gate open to my
own home field often. From time to time jumps for my children. Portable jumps.
Two of my children had ponies. We moved jumps about in that field and into
other fields. Basically we used the field for grazing.
He was asked
when the last cow was in the field and he said:
October 1977
when I was barred out. We had 30-40 cattle roaming through the three fields,
Home Field, this field plus another of mine.
He also said:
No one rents
land from me for horses–what I do is keep someone else’s horse from time to
time.
Then Mrs Smith
in her evidence made one answer which was originally recorded as ‘Always
discuss jumper’, but it has been altered to ‘Always drums and jumps’. She went
on:
Occasions
seen a cow and calf there. Since proper show jumps of Mullins always used just
for jumping. They were there when we started riding school 1974. . . I cannot
remember cows and calves being in there regularly. Since 1974 field used as a
practice area for Mrs Wetherall to give lessons, and we used it with
permission. . . Grazed–on occasions, limited, by a cow and calf in our first
couple of years
that would be
1970 to 1972
Since then
only grazing was by horses, since Mullins’ jumps in. Sometimes gates left open
and animals would drift in, out of curiosity I would say.
Later on she
said:
After
Mullins’ jumps put in, it was used solely as a jumping paddock. I would say
1973-1977. . . I have seen ponies and horses put in with the jumps to graze.
In
cross-examination she said:
I do not
accept field was used in conjunction with next field. No, jumps not moved in
winter. I agree about nine jumps.
The learned
judge did not give judgment on that day, but he did make this note:
Facts found:
Plaintiff continued to use the paddock for agricultural purposes after 1974 to
a small degree and that his major use of it was for schooling and grazing
horses.
That finding
is relied on by both sides here. Mr Henderson on behalf of the defendants says
that, if the use for agricultural purposes is only to a small degree and the
major use is for other purposes, then it is no longer an agricultural holding;
and Mr Mauleverer on the other side says that, if it is used for agricultural
purposes–unless it is really to a de minimis degree, which the learned
judge was not finding–it continues to be an agricultural holding.
When the learned
judge came to give judgment on February 21 it was not a written judgment. I
understand it was given immediately at the conclusion of argument, and notes
were made by a solicitor and submitted to the judge.
He said this:
Firstly, I
accept the submissions of Mr George for the Plaintiff that this was an
agricultural holding from its inception.
Now, it is not
perfectly clear what that means, whether it means it was an agricultural
holding at its inception or it was an agricultural holding at and ever after
its inception.
Secondly, I
accept Mr George’s submission that the correct way to put an end to the
agricultural tenancy is by the machinery set out in the Agricultural Holdings
Act.
That, of
course, is only so if it were indeed at the relevant time, whatever the
relevant time may be, an agricultural holding. The learned judge refers to
clause 3 of the tenancy agreement, setting out the management duties and so
forth and goes on:
It is for the
Defendants to complain to the Agricultural Tribunal if they state that the
tenant is in breach.
To
interpolate, the Plaintiff had continued to use the paddock for agricultural
purposes, albeit to a small degree, the major use being for grazing and
schooling horses and ponies.
That was a
repetition of what he had already found in the previous December.
If the
Defendants contend that the mixed use for small agricultural use and major
sporting use is in breach of the agreement then it is up to them to promote
that argument before the Agricultural Tribunal.
That, with
great respect, is really a misunderstanding of the argument on behalf of the
defendants, which was not that it was in breach of the agreement but that,
because of the use that had been made of it, it had ceased to be an
agricultural holding and therefore had ceased to be something which was within
the jurisdiction of the agricultural land tribunal at all. Later on the judge
said:
It is argued
by the Defendant that it is open to the Court to put aside an agricultural
tenancy and to examine the question de novo as to whether at the date of
the Notice the user falls within an agricultural user.
That would, I
think, be an accurate summary of the argument of the defendants if the
expression ‘put aside an agricultural tenancy’ were taken to mean to contend
that what had originally been an agricultural tenancy had ceased to be one; not
to say that its origin could be disregarded, but to say that the user, after
that time, had had the effect of changing the character of the tenancy. The
judge continues:
He says that
if you look at the user you see that it is ordinary user not agricultural user
at that date and the significance of that is that the tenant has thrown away
the protection afforded to him by the 1948 Act and because he carries on no
agricultural activity it must be open to the Court to say whether or not the
tenancy is an agricultural tenancy.
In the light
of what I have said, that view cannot prevail. It cannot be right that this
Court should have the freedom to examine the day by day conduct of the parties
to examine the use the tenant has put the land to in order to discover what the
tenancy is. It is more properly a question to be decided by the Agricultural
Tribunal whether the use is a proper one under the tenancy.
As to whether
for example some part of the tenancy is agricultural use and some part is not
or whether some part is in recreational use and that part is more substantial
than the agricultural use are arguments of degree which this Court could never
resolve.
Now, that seems
to me, again with great respect to the learned judge, to be disclaiming
responsibility for making the decision which it really was for him and nobody
else at that stage to make, and not one for the agricultural land tribunal to
consider.
As I have
said, it is common ground that the tenancy was at the outset an agricultural
tenancy. If the learned judge is to be taken as holding, as he seemed to be
saying in one part of his judgment, that that was conclusive so far as the
court was concerned, then in my judgment that was not in accordance with the
law as it has been developed; and certainly the suggestion that the matter
should go to the agricultural land tribunal for the decision on such a question
was inappropriate. The landlords’ case here was not that, by departing from
agricultural use, the tenant was in breach of the tenancy agreement. Indeed,
one of the landlords’ contentions was that the change of user had been
impliedly assented to; but, whether assented to or not, the defendants claim
that, by the change of user, the tenancy had ceased to be an agricultural
tenancy. That is an issue which it was for the court to resolve and not for the
agricultural land tribunal.
Mr Mauleverer,
on behalf of the plaintiff, has not contended that the use which is stated or
is to be implied at the beginning of the tenancy is conclusive for the whole
period of the tenancy. He concedes, as I think he is bound to do on the
authorities, that, notwithstanding what appears in the tenancy agreement, the
character of the tenancy can change. That was authoritatively decided, so far
as this court is concerned, by the case of Hickson & Welch Ltd v Jack
Cann decided on February 8 1977 and not reported, but we have been able to
examine the judgment from the transcript obtained from the Bar Library [now
reported at 40 P & CR 218]. But, accepting that there can be such a change,
Mr Mauleverer contends that there is a strong presumption that, if at the start
the tenancy is an agricultural one, it continues to have that characteristic,
that it takes clear evidence to justify a finding that there has been a change,
that the matter has to be decided by considering the whole history of the
tenancy, and that the question is one of degree, depending on the extent to
which agricultural use has been abandoned and to which any other use has been
adopted.
That is, I am
afraid, an inadequate summary of the very careful and forceful argument which
was developed by Mr Mauleverer on behalf of the plaintiff in this case, but I
hope it will suffice for the purpose of indicating why I have come to the
decision to which I have come. First of all, in my view the period to which
attention must be mainly directed in considering whether the tenancy has ceased
to be an agricultural one is the time leading up to the service of a notice to quit
where a notice to quit has been served. I would not suggest that the change can
in the absence of some very exceptional circumstances be brought about in a
matter of days or weeks; but in Hickson & Welch Ltd v Cann
all members of this court took the view that the cesser of agricultural
activities for the last two years before the service of the notice to quit was,
irrespective of what had gone before, sufficient to deprive the tenant of the
right to claim the protection of the Agricultural Holdings Act. There was no
suggestion in the evidence in that case, so far as appears from the judgments,
that there had been any assent to the change of use on the part of the
landlord.
The cases
earlier than Hickson & Welch Ltd v Cann are, I think, all
consistent with the decision arrived at in that case, though it may be–and I
think it probably is so–that it went further than any of the earlier cases.
Most of the earlier cases that we have been referred to are on the question
whether a tenancy could become an agricultural tenancy by user rather than the
converse.
In the first
case that was mentioned, Dunn v Fidoe [1950] 2 All ER 685, a
decision of this court, an inn had been let with an adjoining orchard. It was
held to be an agricultural tenancy and Tucker LJ in the judgment, which was
agreed to by the other members of the court, based his decision on the fact that
the premises were used for the growing of fruit for sale in addition to the use
of the inn for the ordinary purposes of an inn.
In Howkins
v Jardine [1951] 1 KB 614, another decision of this court, it was held
that, where there was a lease which was in substance that of an agricultural
holding, there could be no severance so as to treat part as agricultural
holding and part not. The question there was whether a cottage, which was
sublet to persons not engaged in agriculture, was protected by the 1948 Act. It
was held that it was, because the holding could not cease to be agricultural
according to whether a particular part–in that case the cottage–was occupied
for agricultural purposes or not. In the judgment of Jenkins LJ at p 628 of the
report he said:
. . . one
must look at the substance of the matter and see whether, as a matter of
substance, the land comprised in the tenancy, taken as a whole, is an
agricultural holding.
I draw
attention to the use of the words ‘as a matter of substance.’ Another word which was relied upon by Mr
Henderson in support of his argument was the word ‘is,’ suggesting that Jenkins
LJ thought that the question should be directed to the present time or
something near the present time rather than to the past when the tenancy began.
A third
decision in this court was Godfrey v Waite [1951] EGD 9; (1951)
157 EG 582; we have seen a transcript of the judgment. That was a case of a
house which was let as a dwelling with a parcel of land adjoining it, but later
the tenant claimed that it had become an agricultural tenancy. Sir Raymond
Evershed MR, said that, in considering whether the holding was an agricultural
one or not, the original purpose of the tenancy was significant, but if the
land had been used for agriculture with the assent of the landlord, then it
might come to be an agricultural holding. Denning LJ, as he then was, gave
judgment to similar effect, saying that the original purpose might be decisive
but if, after the letting, it was used for agricultural purposes with the assent
of the landlord, it could be brought within the Act. Hodson LJ agreed and he
did not expressly refer in his judgment to any necessity for the assent of the
landlord.
It seems to me
that it may well be that, when the question is whether land which was not an
agricultural holding at the beginning had become an agricultural holding, it
can only do so if there were assent of the landlord to the change of use. It by
no means necessarily follows that, if agricultural user is abandoned, the
assent of the landlord to such abandonment is necessary in order to reach a
conclusion that it had ceased to be an agricultural holding and, indeed, Mr
Mauleverer did not so contend. He was content to say that, if there had clearly
been complete abandonment by the tenant of the agricultural use then, apart
from any question of assent, the holding would cease to be an agricultural one.
The last of
this batch of Court of Appeal cases that I will mention is Blackmore v Butler
[1954] 2 QB 171. The issue there was as to whether two adjoining pieces of land
let separately could constitute one agricultural holding. The only assistance
that the report gives to this court in the present case is, I think, to be
found at p 177 in the judgment of Somervell LJ where, after citing at length
from Godfrey v Waite, he said:
The
importance is that the question was held to be one of fact and degree. If it
had been let as a farm house for use in connexion with the farm, the county
court judge could and should have decided that it was an agricultural holding.
It was also recognised that the purpose might alter during the currency of the
contract.
Another case
decided in that year, but this time by McNair J, was Monson v Bound
[1954] 1 WLR 1341. It was about the letting of a shop and glass conservatory
with adjoining garden. The trade that was carried on was the sale of flowers
and shrubs, of which only about a sixth were grown in the garden adjoining the
shop. McNair J held that there was not an agricultural holding and that, as is
clear from the report, was on the basis that only one-sixth of the sales, which
amounted to only about one-tenth of the turnover, was within the agricultural
business. Therefore, it was not an agricultural holding.
We have been
helpfully referred by Mr Mauleverer to a number of other cases. I think they do
not do more than give further illustration of the principles laid down in the
earlier cases, so I will merely give their references without referring to any
details: Re Russell and Harding’s Arbitration (1922) 39 TLR 92; Deith
v Brown (1956) 167 EG 513, a decision of Pearce J; Price v Vaughan,
a decision in the county court by Sir Donald Hurst (1958) 172 EG 161; and McClinton
v McFall (1974) 232 EG 707.
Having
referred to those authorities I would respectfully add that, on principle, it
is in my judgment right that the protection of the statute should be lost if
agricultural activity is wholly or substantially abandoned during the course of
the tenancy even if without consent of the landlord. The object of the
legislature is surely to maintain continuity in the conduct of farming and
horticultural operations rather than to put people, who have at some time in
the past acquired a
cases show that the tenancy is not to be regarded as alternating between being
within and outside the 1948 Act as minor changes of user take place, and that,
when the tenancy is clearly an agricultural one to start with, strong evidence
is needed to show that agricultural user has been abandoned.
I can deal
quickly with the amended notice of appeal. I find it impossible to say that
there were such findings by the learned judge as would entitle this court to
say that judgment should be entered for the defendant. So far as concerns the
matter added to the grounds of appeal, which is in these terms: ‘The learned
judge was wrong in fact in holding that there was no evidence of a variation in
the terms of the plaintiff’s tenancy and wrong in law in holding that there was
no such variation,’ the only evidence that was relied upon to support the
proposition that there had been a variation of the tenancy was that the
landlords, with knowledge of the use to which the land was being put by the
plaintiff, accepted rent. It is quite clear that that is not sufficient to
bring about the variation in the terms of the tenancy. The case of Wolfe
v Hogan [1949] 2 KB 194 is authority to that effect.
However, it
remains to be considered whether this is a case in which, however regrettable
it may be, it is necessary for this court to direct that there should be a new
trial. As I have indicated, I am of the opinion that the learned judge here
made a wrong approach to the issue that he had to decide and made an error in
law in holding that it was not for him to examine what he called the day-by-day
conduct of the parties in order to decide what was the use the tenant was
putting the land to. I, of course, accept that minute examination of day-to-day
activities is not required but, having regard to the nature of the dispute in
this case, I consider that it was necessary for the learned judge to pay
attention–it may be among other things–to these points and to reach a
conclusion upon them: first, to what extent during about the last two years, up
to the service of the notice to quit in September 1976, was the paddock used
for the grazing of (a) cattle, (b) horses, (c) for any other agricultural
purpose; secondly, to what extent was it used for riding lessons and jumping
and other similar purposes; thirdly, were the horses, while grazed there, used
only or mainly for recreation; and, fourthly, was any of the land and, if so,
what part, used for the purpose of trade or business?
I suggest
those questions, not as intended to bind the learned judge in any way as to
issues of fact to which he should direct his attention, but as being matters
that seem to me to be relevant for him to take into account; because there are
no clear findings by the learned judge on these various matters and the notes
of the evidence would not enable this court to make such findings. In my
judgment, the matter must go back for a fresh hearing and, on the basis of the
findings that the learned judge ultimately makes, he should go on to consider
whether, during the two years or so leading up to the notice to quit, the user
of the land was or was not substantially used for agriculture for the purpose
of trade or business, or whether that had been wholly or substantially
abandoned by the plaintiff.
It will be
convenient and will probably save expense if the matter goes back to the same
learned judge for rehearing and if he is asked to take into account the
evidence which he heard before. I consider that the parties should be at
liberty to adduce additional evidence, both because it may be that full
attention was not paid to the points to which witnesses should address
themselves at the first hearing and because it cannot be expected that at this
stage the learned judge will have a clear recollection of the evidence.
To that extent
I would allow the appeal and direct that there should be a fresh hearing.
Agreeing,
ACKNER LJ said: Despite the very able argument of Mr Mauleverer, I think this
case should go back for rehearing by the learned judge. It is not disputed that
the protection of the Agricultural Holdings Act, although enjoyed for many
years, can be, as my Lord has fully demonstrated, lost if the tenant abandons
his use of the land for agriculture. The learned judge erred in his approach to
this issue. There was conflicting evidence as to whether any, and if so what,
agricultural use was made by the plaintiff and whether, if so used, the use was
for the purpose of trade or business. There were no adequate findings as to
whose evidence the learned judge preferred or generally as to the actual use
over the appropriate period. I agree with the order proposed.
STEPHENSON LJ
also agreed.
The appeal was allowed with costs in the Court of
Appeal, with a minor exception, all costs below to be reserved to the judge.
The appellants were ordered to amend or particularise the defence in order to
plead any variations relied on and the respondent (plaintiff) to produce farm
books showing trade or business use of paddock for the three years before the
notice to quit.
