Agricultural holdings — Appeal by landlords by case stated from ruling of agricultural land tribunal — Notice to quit served by landlord within a year of serving a previous notice to quit to which the tribunal had refused to give consent — The grounds on which the tribunal’s consent to the previous notice had been sought were those set out in paras (b) and (d) of section 3(3) of the Agricultural Holdings (Notices to Quit) Act 1977 (sound management and greater hardship) — The second notice to quit was based on para (a)(good husbandry) as well as paras (b) and (d) of section 3(3) — Tenants served a counternotice and landlord applied for tribunal’s consent — Tribunal ruled that, in view of the previous proceedings, the landlords were estopped from relying on ground (b) and were also estopped from relying on ground (d) unless they could establish a material change of circumstances — Question as to whether the doctrine of issue estoppel applied — Burman v Woods and Mills v Cooper cited — Held that the tribunal were wrong in law in invoking the principle of estoppel in a situation which was not static and where the issues had not been decided once and for all — They were also wrong in indicating, in relation to greater hardship, that evidence would have to be restricted to the question whether there had been a material change of circumstances — Once the issue of greater hardship was open the matter was entirely at large — Judge’s caution that an applicant for consent risked ‘alienating the ear of the tribunal’ if he presented substantially the same case as before and could be penalised in costs — Appeal allowed
This was an
appeal by case stated ppder section 6 of the Agriculture (Miscellaneous
Provisions) Act 1954, the appellants being Barry John Henry Wickington and his
wife, Joyce Hilda Wickington, the landlords, and the respondent being Alan
Bonney, the tenant. The proceedings related to an agricultural holding of some
25 acres forming part of Crow Holes Farm, Cliviger, near Burnley, Lancs.
James W Bonney
(instructed by Turner, Peacock, agents for Cooper, Smith & Williams of
Burnley) appeared on behalf of the appellants; D Stockdale (instructed by
Hodgson & Sons, of Preston) represented the respondent.
Giving
judgment, STEPHEN BROWN J said: This is an appeal by way of case stated from a
preliminary ruling made by the agricultural land tribunal for the Yorkshire and
Lancashire Area on November 26 1981. The tribunal had before it an application
for its consent to the operation of a notice to quit. This was served by the
appellants, Mr and Mrs Wickington, upon the respondent, Mr Bonney, on May 27
1981 in respect of an agricultural holding consisting of 8.906 hectares, or
some 25 acres, of land forming part of Crow Holes Farm, Cliviger, near Burnley
in Lancashire.
The appellants
apparently became the owners of the whole of Crow Holes Farm in 1970. The
entire holding is some 32 acres in extent, but after having farmed it for five
years or thereabouts, part of the holding became the subject of a tenancy,
which is a protected tenancy, of which the respondent is the tenant.
The respondent
farms adjacent land, which is part of Fox-stones Farm. The entirety of that
holding is much greater than Crow Holes Farm, extending to about 124 acres.
However, he became the protected tenant, as I have indicated, of a portion of
Crow Holes Farm, which was the subject of the notice to quit and the
application for the consent of the tribunal to the operation of that notice to
quit, under the provisions of the Agricultural Holdings (Notices to Quit) Act
1977.
There had been
an earlier notice to quit, followed by an application for the consent of the
agricultural land tribunal to that notice to quit, in 1980. In that year, on
April 14, the same appellants, as owners of the same portion of Crow Holes
Farm, served a notice to quit on the same tenant, the respondent, to expire on
May 28 1981. The respondent served a counternotice, under the provisions of the
statute, and that was followed by an application on the part of Mr and Mrs
Wickington for the tribunal’s consent to the operation of the notice to quit.
The respondent had served a reply, and there was a hearing in 1980, on two
days, on July 22 and subsequently on October 27, and on January 12 1981 the
tribunal gave its determination.
The
application had been based on two subparas of section 3(3) of the Agricultural
Holdings (Notices to Quit) Act 1977. Section 3 of the Act provides:
Subject to
subsection (2) below, the Tribunal shall consent under section 2 above to the
operation of a notice to quit an agricultural holding or part of an
agricultural holding if, but only if, they are satisfied as to one or more of
the matters mentioned in subsection (3) below, being a matter or matters
specified by the landlord in his application for their consent.
Subpara (b) of
section 3(3) reads in these terms:
that the
carrying out thereof is desirable in the interests of sound management of the
estate of which the land to which the notice relates forms part of which the
land constitutes.
And subpara
(d) reads:
that greater
hardship would be caused by withholding than by giving consent to the operation
of the notice.
Even if
satisfied about those matters, the tribunal still has to consider the operation
of subsection (2), which provides:
Even if they
are satisfied as mentioned in subsection (1) above, the Tribunal shall withhold
consent under section 2 above to the operation of the notice to quit if in all
the circumstances it appears to them that a fair and reasonable landlord would
not insist on possession.
In their
determination, the tribunal withheld their consent to the operation of that
notice to quit, which had been served on April 14 1980.
At p 20 of the
agreed bundle of documents, supplied for the use of this court, at para 26,
there appear their reasons. They there set out that they are satisfied that the
scheme for intensive sheep rearing, proposed by the applicants, as they then
were, is unsound and impractical. They doubt whether the applicants have
sufficient experience to undertake their proposals, and they express themselves
to be ‘satisfied that Crow Holes Farm has become so reduced in size that even
with the holding the applicants would have insufficient land for this project’.
They go on to say: ‘We are satisfied that the applicants will not be able to
create a single economic and efficient unit based on intensive sheep rearing
out of the holding and the part of Crow Holes that they now occupy.’ They then rejected the applicants’ submission
that they would suffer greater hardship by the consent to the notice to quit
being withheld than the respondent would by the granting of that consent.
The tribunal
noted that the first appellant was unemployed at that time, but they expressed
themselves in these terms: ‘We are satisfied that Mr Wickington is a skilled
welder and will, we hope, be able to make use of that skill in due course.’
It was in
those circumstances that the tribunal, on January 12 1981, rejected the grounds
upon which the applicants sought to obtain the tribunal’s consent to the
operation of the notice to quit under subparas (b) and (d) of section 3(3) of
the Agricultural Holdings (Notices to Quit) Act 1977.
In addition to
that, they also stated that under the provisions of section 3(2) they were
satisfied that ‘a fair and reasonable landlord would consider carefully the
practicality of the proposed scheme and to what extent it would be likely to be
successful. In all the circumstances we find that no fair and reasonable
landlord would insist upon possession of the holding from the respondent in
order to put it in the possession of the applicants to attempt to carry out
their proposals.’ So they also applied
the residual power to refuse their consent under section 3(2). As I have
indicated, that decision was given on January 12 1981.
On May 27 1981
the appellants served a fresh notice to quit on the tenant, the respondent. He
served a counternotice, as provided for by the provisions of the statute, and
in due course the appellants made a fresh application to the tribunal for
consent to the operation of that notice to quit, on June 29 1981. There was a
reply and in due course there was a hearing on November 26 1981.
On this occasion
the application for consent to the operation of the notice to quit was framed
under subpara (a) as well as subparas (b) and (d) of section 3(3) of the Act.
At the hearing
counsel for the respondent made a preliminary submission that, having regard to
the previous decision of the tribunal on January 12 1981, the applicants should
be estopped from relying, in their fresh application, on the grounds provided
by subparas (b) and (d) of section 3(3) of the Agricultural Holdings (Notices
to Quit) Act 1977. He submitted that the matters which were to be canvassed
were identical to those which the tribunal had previously considered in 1980
and had rejected, so far as the application on January 12 1981 was concerned.
The tribunal
accepted those submissions and made a preliminary ruling, which they set out in
the case at paras 5 and 6. Para 5 reads:
As for the
ground provided by paragraph (b) we look at the reasons for the tribunal’s
previous decision where it was stated: ‘We are satisfied that the applicants
will not be able to create a single economic and efficient unit based on
intensive sheep rearing out of the holding and the part of Crow Holes that they
now occupy.’ We were of the opinion that
the previous tribunal canvassed clearly the question of the viability of the
holding, no matter what was done, and found that it not only was not, but could
not, be a viable proposition. Accordingly we decided that the applicants were
estopped from relying upon this ground.
Para 6 reads:
As for the
ground provided by paragraph (d) we decided that the applicants were estopped
from relying upon this ground unless they could establish a material change in
circumstances since the previous hearing and that the evidence adduced by the
applicants must be limited to that question.
They adjourned
the hearing so that either party could consider the position, and indeed the
appellants requested the tribunal to state a case, which they have done and
which now comes before this court. They ask for the opinion of this court on
the following questions of law:
(1) Whether the tribunal was correct in law in
holding, by virtue of the decision of the agricultural land tribunal on January
12 1981,
(A) that the applicants are now estopped from
relying upon the ground provided by para (b) in section 3(3) of the
Agricultural Holdings (Notices to Quit) Act 1977;
(B) that the applicants are now estopped from
relying upon the ground provided by para (d) in section 3(3) of the
Agricultural Holdings (Notices to Quit) Act 1977 unless they can establish a
material change of circumstances since the previous hearing, and that the
evidence adduced by the applicants be limited to the question of whether there
has been such a material change of circumstances.
They further
ask:
(2) Whether at the adjourned hearing the
applicants will accordingly be entitled to proceed upon the said grounds
provided by paras (b) and (d) in section 3(3) of the Agricultural Holdings
(Notices to Quit) Act 1977 in addition to that provided by paragraph (a) in
section 3(3) of the said Act.
On behalf of
the appellants, Mr Bonney — who assures me that he is no relation to the
respondent in the case — has argued that the tribunal was wrong in deciding
that they were estopped from considering the grounds submitted under subparas
(b) and (d) of section 3(3) of the Act. He submits that a fresh situation was
created by the service of the fresh notice to quit in May 1981 and by the
service of the fresh counternotice by the tenant on June 1 1981. He submits
that this was a fresh application for the consent of the tribunal and that the
position cannot be regarded as being a static position which would raise the
principles of an issue estoppel. He further submits that the essential
conditions in the application of the doctrine of issue estoppel cannot, and do
not, apply to the situation in this instance.
The conditions
of the application of the doctrine of issue estoppel are conveniently set out
in the 16th volume of the fourth edition of Halsbury’s Laws of England,
at para 1530:
The
conditions for the application of the doctrine have been stated as being that
(1) the same question was decided in both proceedings; (2) the judicial
decision said to create the estoppel was final; and (3) the parties to the
judicial decision or their privies were the same persons as the parties to the
proceedings in which the estoppel is raised or their privies.
Mr Bonney has
cited authorities in support of his submission that this is not a case in which
issue estoppel can apply. He has, in particular, relied upon two decisions,
that of Lord Parker in Mills v Cooper [1967] 2 QB 459 and the
other in the case of Burman v Woods (1948) 1 KB 111.
The case of Mills
v Cooper related to proceedings in a magistrates’ court where an
information preferred against the defendant had alleged that he, being a gipsy,
had without lawful excuse or authority encamped on a highway, contrary to the
Highways Act 1959. The information was dismissed in 1966 on a submission of no
case, on the grounds that the justices were not satisfied that the defendant
was a gipsy. Some 10 weeks later a similar information was laid against him
alleging that he was a gipsy on March 13 1966. He raised the plea of estoppel,
saying that the issue had already been decided in his favour. It was submitted
that the later proceedings were oppressive and an abuse of the process of the
court. Doubt was raised whether the doctrine of estoppel was applicable in
criminal law, but in the course of his judgment, Lord Parker indicated that,
for the purposes of considering the matter, he would assume that the doctrine
did apply. He said at p 466: ‘Even so, I am satisfied that it’ — that is issue
estoppel — ‘has no application in the present case, since the issue determined
on the earlier occasion was that the defendant was not a gipsy on December 22
1965, whereas the issue to be determined on the second occasion was whether he
was a gipsy on March 13 1966.’
In the case of
Burman v Woods, Somervell LJ had to deal with a question arising
under the rent restrictions legislation. That arose in the Court of Appeal
after a county court judge had held that the principle of res judicata applied
where a plea of greater hardship was raised and had been decided on a recent
previous occasion. The Court of Appeal held that the principle of res
judicata was inapplicable and that the landlord in that particular case had
established a change in circumstances since the first application, and that the
case must therefore be remitted to the judge for reinvestigation of the
question of on which side greater hardship now lay. In the course of his
judgment, Somervell LJ made it plain that while greater hardship could not be
the subject of res judicata, since it was not a static situation, the
parties might be subject to certain penalties with regard to costs, or being
struck out, if they came back too quickly and repeatedly, so as to attract the
description of being ‘frivolous or vexatious’. But it is quite plain that
greater hardship could not be the subject of res judicata or issue
estoppel, as it is not necessarily the same issue.
In this case,
Mr Bonney submits that, having regard to the provisions of the Agricultural
Holdings (Notices to Quit) Act
with the statutory provisions, serve notices to quit successively, and that if
he does so, a statutory procedure is available for the matter to come before
the agricultural land tribunal for the consideration of giving consent to the
operation of the notice. Mr Bonney submits that while the cases to which I have
referred are not in the same sphere of legal activity, none the less the
principle is the same, that is to say that the matter it is not a static
matter, the issue has not been decided once and for all, and that he ought to
be allowed, on behalf of the landlord, to adduce evidence of a change of
circumstances: new factors which would entitle him to ask for the consent of
the tribunal.
Mr Stockdale,
for the respondent, has submitted that really on grounds of public policy once
a matter has been decided there should not be a premature reapplication to the
same tribunal, in relation to the same land, and the same parties, on the same
grounds. He submits that there is no potential indication of a change of
circumstances in this particular instance, as revealed in the statement of the
application which goes initially before the tribunal. Further, he submits, it
would be quite wrong for the tribunal to allow the evidence to be adduced in
support of the same two subparagraphs, (b) and (d), which featured in the
earlier unsuccessful application.
It is quite
clear from the provisions of the statutes that the tribunal is given statutory
power, under section 5 of the Agriculture (Miscellaneous Provisions) Act 1954,
to penalise an applicant in costs if, in its view, he has acted ‘frivolously,
vexatiously or oppressively’.
It is pointed
out, by the learned editor of Muir Watt on Agricultural Holdings (12th
ed at p 229), that the power given by the Act has the object of checking ‘the
unjustifiable invocation of the tribunal machinery, eg to prevent a landlord
from abusing the procedure by serving notice to quit year after year, without
regard to the merits of his case, in an effort to persecute and harass the
tenant into quitting’.
It seems to me
that the agricultural land tribunal in this case acted too precipitously in
invoking, on the submissions made to them of course, the doctrine of estoppel.
I do not think it does apply to this situation, since it is not a matter where
an issue has been decided once and for all. There is the clear potentiality for
change, and that will depend upon the evidence to be adduced. But, in my
judgment, it would be quite wrong to prevent an applicant from relying on the
two grounds which he seeks to rely upon in subparagraphs (b) and (d) of section
3(3) of the Act on this further occasion.
Having said
that, of course he will run the risk of alienating the car of the tribunal, if
I may say so, if what he seeks to present is substantially the same as he put
before the tribunal on the earlier occasion. In such an event he will risk
being penalised in costs, under the provisions to which I have already
referred.
In my
judgment, the tribunal was not correct in law in holding that the appellants
are now estopped from relying on the ground provided by section 3(3)
subparagraph (b) of the Agricultural Holdings (Notices to Quit) Act 1977, and
further they were also wrong in holding that the appellants are now estopped
from relying upon the ground provided by subparagraph (d) of the same
subsection of the same Act.
The attempt
which they apparently made to qualify their ruling in relation to the ground of
greater hardship, which is paragraph (d) of the subsection, by indicating that
the applicants could only adduce evidence of a material change in
circumstances, in my judgment, is not open to them. Once greater hardship is
open, then the applicant must have the opportunity of presenting his case quite
fully and cannot be restricted in the way in which the tribunal sought to
restrict him, as a matter of law.
In practice,
of course, if he adduces the same set of circumstances as before, his advocate
must know that he runs the risk of again alienating the ear of the tribunal,
and no doubt will be clearly told that this is what they heard before. A
sensible advocate no doubt would be on his guard against running into that kind
of situation.
On the
questions that have been referred to this court, my judgment is that the
tribunal was not correct in law in holding that the applicants are now estopped
from relying on grounds (b) and (d) of the subsection and, accordingly, they
can proceed upon those grounds at the hearing which at present stands
adjourned.
I do not think
it would be appropriate for me to give any further advice to the tribunal,
although Mr Stockdale has sought to invite the court to give guidance to them.
I do not think that on an appeal by way of case stated, on specific points of
law, I should go beyond the area of the case itself. Accordingly, the appeal by
way of case stated is allowed.
The appeal
was allowed with costs; legal aid taxation of appellants’ costs was ordered.
