Bradshaw and another v Smith

Rent Act 1977, sections 6 and 26–Declaration sought in county court under section 141 of the Act as to whether tenancy was a protected tenancy–Land exceeding 2 acres in extent let together with dwelling-house–Whether land ‘agricultural land’ within meaning of section 26, so as to take dwelling-house out of Rent Act protection–Definition of ‘agricultural land’ in General Rate Act 1967–Judge held that land was used as meadow or pasture–Evidence that grass was cut for hay, that there was some minimal grazing by ‘a very old lame racehorse’ and by some beasts belonging to landlord and that the land was used for exercising dogs–Judge did not give sufficient force to the words ‘used’ and ‘only’ in the reference to meadow and pasture in General Rate Act definition–Land was in fact used ‘mainly or exclusively for purposes of . . . recreation’–Hence it did not consist of ‘agricultural land’ within section 26(1) of Rent Act–Tenants protected–Appeal allowed This was an appeal by the tenants, Robert John Bradshaw and Marguerite Olive Bradshaw, his wife, from a decision of Judge Stock at Winchester County Court dismissing an application made by the tenants under section 141 of the Rent Act 1977 for a declaration that their tenancy of a property known as Duttons Bungalow at Timsbury, Hampshire, was a protected tenancy. The respondent to that application and to the present appeal was Derek Campbell Smith, the landlord. Jonathan Fulthorpe (instructed by Malkin, Cullis & Sumption, agents for Lamport, Bassitt & Hiscock, of Southampton) appeared on behalf of the appellants; Terence Etherton (instructed by Trethowans, of Salisbury) represented the respondent. Giving the first judgment at the invitation of Megaw LJ, SIR PATRICK BROWNE said: This is an appeal from a decision of His Honour Judge Stock given in the Winchester County Court on February 5 1979. The plaintiffs, Mr and Mrs Bradshaw, are the tenants and the defendant, Mr Smith, is the landlord of the property known as Duttons Bungalow, and the nature of the proceedings was an application for a declaration, under section 141 of the Rent Act 1977, that that tenancy was a protected tenancy under those Acts. The judge refused that application and the tenants appeal to this court. There is no dispute as to the facts, which are very fully and helpfully set in the judgment of the county court judge. The judge said this: Prior to 1966 Mr Bradshaw owned a house and was anxious to find some land for his wife and daughter to keep horses. In 1966 he acquired a tenancy of Yew Tree Farm from Mr Smith –Mr Smith being the defendant and the respondent in these proceedings– consisting of a farmhouse, buildings and 10 acres of land. The 10 acres were used for grazing horses by Mrs Bradshaw and their daughter Veronica. With the consent of the respondent Mr Bradshaw converted a building into a loose box and a barn into a hay store and jumps were placed on the land. Mrs Bradshaw and her daughter are honorary instructors of the local pony club and events involving that club were held gratuitously on the land. In 1972 the respondent was anxious to get possession of the property. The rent was also due to be assessed, the result being a sharp increase which Mr Bradshaw would have been unable to pay. Mr Bradshaw was by now totally blind and had been unable to work since 1976. The blindness became progressively worse since 1969 and his inability to work had caused financial hardship. In 1972 not only did Mr Smith desire to have Yew Tree Farm in order to sell it but the applicants were well disposed to escape the inevitable increase in rent. Mr Smith with his agent made an offer to the Bradshaws of Duttons Bungalow and at that time there was no mention of any additional land for horses. Subsequently90 Mr Bradshaw requested that there be an arrangement for the grazing of one horse and an elderly pony. Mr Smith said he could arrange that and that he would erect two loose boxes and a hay store. On June 8 1972 a lease was entered into and demised in that document were the land and buildings on the plan. The plan annexed to the lease shows Duttons Bungalow plus the horse boxes and leading from that a private right-of-way which Mr Smith, the Bradshaws and others can use. The private right-of-way leads to a paddock and is approximately 50 metres in length. The area of land on which the bungalow is sited is 0.1978 acre and the pasture land . . . increases the total land involved to 3.906 acres. There is no dispute as to this area. Turning then to the lease, it is dated June 8 1972, made between Mr Smith, the respondent, and Mr and Mrs Bradshaw, the plaintiffs and the appellants. It demises to them all those pieces or parcels of land situate at Timsbury in the County of Hants together with the bungalow and outbuildings erected thereon or on some part thereof which are more particularly specified in the First Schedule hereto and are for the purpose of identification edged red on the plan annexed hereto (hereinafter called ‘the demised premises’). Then there are certain rights of way; the demise was for five years from April 1 1972, and the rent was £425 a year. If one looks at the First Schedule, it refers to four parcels. The first is the bungalow and garden and the second, third and fourth are all described as ‘pasture’, and the areas are given. It is quite plain from that that the area of the pasture land, other than the bungalow and so on, is more than 2 acres. The plan shows the bungalow towards the south-eastern corner of the plan. Then there is a right-of-way running up to the paddock and then there is the paddock itself. Going back to the lease, the tenant’s covenants are contained in clause 2 of it. Clause 2(c) provides: ‘At all times during the term to keep the whole of the demised premises and all additions thereto in a good and substantial state of decoration repair and condition.’  Clause 2(g): ‘To use and occupy the bungalow for the purpose of a private residence only and to use the buildings and land for private or agricultural purposes only and in particular and without prejudice to the generality of the foregoing not to use the property or any part thereof in such a way as to come within the provisions of the Landlord and Tenant Act 1954.’  Clause 2(h)(ii): ‘To keep the grassland in good heart and to cut all noxious weeds before seeding.’  Clause 2(j): ‘To keep the fences’ in good order and stock-proof. Then there is an option to renew in clause 6 and I do not think there is anything else in that lease to which I need refer. Going back to the judgment, the judge went on, having referred to the lease: The loose boxes were erected in the curtilage and Mrs Bradshaw and her daughter then erected some jumps mainly in the half of the field nearer the bungalow. These were used for jumping and Mrs Bradshaw and Veronica Bradshaw continued to give gratuitous service to the pony club on that land. There is no doubt at all at that time that the paddock was used exclusively for recreational purposes. Mr Smith gave evidence, agreed with the evidence as to the use to which Yew Tree Farm had been put and agreed that the same sort of use had occurred at Duttons Bungalow. He further said that the paddock was provided to give the same facilities to the Bradshaw family as they had had at Yew Tree Farm. It is therefore clear at this time that the land was used for recreational purposes. However, Mr Bradshaw’s eyesight unhappily failed, though he had been engaged in some part-time work up to 1976. Because of this Mr and Mrs Bradshaw had no money to keep horses. Mrs Bradshaw got employment at a local poultry farm, and the daughter Veronica worked at nearby racing stables. Due to the financial problems in 1973 the horse was sold and eventually the old pony died. On one occasion a very lame racehorse, 26 years old, was allowed to use the paddock. The horse was owned by a friend who was permitted to use the land for compassionate reasons. Both Mrs Bradshaw and Veronica Bradshaw gave the horse some attention. On another occasion some heifers and a horse of Mr Smith were allowed to use the land. The jumps were dismantled and stored, and work with the pony club became less and less because Mrs Bradshaw and Veronica had to go out to work. No use was made of the paddock since September 1976 other than the cutting of hay by contractors to fulfil obligations under the lease. I take that to be a reference to the tenant’s covenant in sub-clause (h)(ii), which I have already read. The judge went on: The contractor takes the hay as payment for cutting it which seems to be a good bargain on the contractor’s part. Mr Bradshaw would have been glad to get rid of it earlier but the landlord would not take the paddock because he has been advised it would be prejudicial to his position under the Rent Acts. The position is now the same. Mr Bradshaw wants to get rid of it and the landlord does not want it. There is now no use of the land except the grass cutting and Mrs Bradshaw taking dogs for a walk for exercise. Both Mr and Mrs Bradshaw would have liked to have kept horses on if they had sufficient means to do so and I accept that they would have. However, Mr Bradshaw said that he could not envisage a change in the situation, that is, that he cannot afford it unless he were to benefit from some windfall. I think, before coming to the judge’s actual decision, it is convenient to refer to the relevant statutory provisions, which are contained in three sections. In the Rent Act 1977, section 6 provides: Subject to section 26 of this Act, a tenancy is not a protected tenancy if the dwelling-house which is subject to the tenancy is let together with land other than the site of the dwelling-house. Section 26: (1)  For the purposes of this Act, any land or premises let together with a dwelling-house shall, unless it consists of agricultural land exceeding 2 acres in extent, be treated as part of the dwelling-house. (2)  For the purposes of subsection (1) above, ‘agricultural land’ has the meaning set out in section 26(3)(a) of the General Rate Act 1967 (exclusion of agricultural land and premises from liability for rating). Then going to the General Rate Act 1967, section 26(3) reads as follows: In this section the expression ‘agricultural land’–(a) means any land used as arable meadow or pasture ground only . . . and then a number of other land uses, but does not include land occupied together with a house as a park, gardens (other than as aforesaid), pleasure grounds, or land kept or preserved mainly or exclusively for purposes of sport or recreation, or land used as a racecourse. The first submission made by Mr Fulthorpe, for the plaintiffs, both in the court below and in this court, was that one should look at the whole of the premises comprised in the demise, that is, the bungalow itself and the garden and the paddock, as being what he called a composite or a conglomerate unit, the whole of which should be regarded as ‘the dwelling-house.’  The judge dealt with this submission in this way: ‘It seems to me that when one looks at the property subject to the lease of June 8 1972 one cannot rightly say the land was part of the house. I quite accept that for the land to be part of the house it does not have to be contiguous, but one has to look at the physical position. The bungalow was not a large one and there was a right-of-way along a track 50 metres long to the paddock consisting of the balance of the acreage. I think it would be straining the law to consider the paddock part of the house and it is impossible here for me to say the land formed a part of the house in a physical sense.’  I think I need only to say that, in my judgment, the judge was entirely right in that conclusion and I would not accept Mr Fulthorpe’s first submission. The judge went on: ‘As to the question that the land was let together with the house, I think the answer must be in the affirmative. The paddock was of great importance to the Bradshaws. The fact that they were in the same lease and let at the same rent is not conclusive but I think it quite clear that the paddock is let together with the house.’  Here again, I entirely agree with the conclusion of the county court judge about this point. Accordingly, the case, I think, comes down simply to one question: did the paddock (as it has been called) consist of91 ‘agricultural land exceeding 2 acres in extent’?  If it did not, it was to be treated as part of the dwelling-house and would be protected. If it did, then it would not be treated as part of the dwelling-house and the dwelling-house would not be protected. It comes down, I think, entirely, to the meaning of ‘agricultural land’ as defined in the General Rate Act as it applies to the facts of this particular case. The judge dealt with the matter in this way: The other question to consider is whether the land consists of agricultural land. If it does not then it will be considered part of the dwelling-house. If it does consist of agricultural land and exceeds 2 acres then the tenancy is outside the Rent Acts. It does exceed 2 acres. Then he refers to the definition in the General Rate Act and went on: This paddock is old pasture and I think it now is used as meadow or pasture ground only. As I have already said I think when the Bradshaws moved it was kept exclusively or mainly for purposes of recreation but at the relevant time–that is, either the date of hearing of the application or the date when proceedings commenced in March 1978–and since September 1976 no one has made any use and no use has been envisaged except for dogs being walked and grass being cut for hay. On those undisputed facts the question of whether the land is used as meadow or pasture only must be answered ‘yes.’  To the second question as to whether the land is kept or preserved mainly or exclusively for purposes of recreation the answer must be ‘no.’  If that is the correct view the application must fail. The judge then expressed his sympathy with Mr Bradshaw. I think, logically, the first point one has to consider is, what is the relevant date at which one has to consider the use. I am bound to say my first impression was that, as one was considering something which had been let together with the land, one should look at the position as it stood at the date of the lease. But Mr Fulthorpe did not so argue and apparently there is some authority which suggests that that view is wrong. At any rate, so far as this particular case is concerned, the lease allowed two uses of the land–either private or agricultural. In these circumstances, it seems to me, and I think it is accepted by both counsel, that one has to look to see what actually happened thereafter, and I am prepared to treat the relevant date as being either the date of the application or the date of the hearing. The position at either of those dates, as found by the judge in the passage I have already read, was that there had been no use for jumping, and so on, since 1973. There had been some use for grazing of the old horse and the pony after that; on occasion an old racehorse was allowed to use the paddock, and on another occasion some heifers and a horse of Mr Smith were allowed to use the land. No grazing use apparently has been made since September 1976. All that has happened is, as the judge found, that a contractor has been cutting the hay and taking that away as payment for cutting it, without other payment from the occupiers. It seems to me that the crucial word in the definition of ‘agricultural land’ is ‘used’–‘any land used as arable meadow or pasture ground only.’  I am quite prepared to assume that it is right to describe this field as either meadow or pasture, but in my judgment, to be ‘used as meadow or pasture’ within the meaning of this section, it must be used for the purpose of growing grass, for the purpose of either being grazed or cut. In my judgment, what is happening now is not use as meadow or pasture. The cutting once a year is done simply in order that the plaintiffs can comply with their obligation under the lease. It seems to me, in the particular circumstances of this case, that that is a relevant consideration. It seems to me also that one must give force to the word ‘only’, as Lord Goddard pointed out in a case to which we were referred, Meriden and Solihull Rating Authority v Tyacke [1950] 1 All ER 939. In my judgment, Mr Fulthorpe is justified in making the criticism that the judge did not give sufficient force, or indeed any force, to the word ‘used.’  It seems to me that the same criticism is fatal to the admirable (if I may say so) argument of Mr Etherton for the respondent. His argument, I think, was that if something is in fact a meadow or a pasture, then that is enough to bring it within the definition. He says that ‘meadow’ means land covered with grass, and this is land covered with grass which is in fact cut for hay, and the reason why it is cut does not matter. I cannot accept that. I that it fails, as I say, to give any force to the word ‘used.’ The alternative argument is that this is ‘land kept or preserved mainly or exclusively for purposes of . . . recreation.’  There is no doubt, on the judge’s findings, that down to at any rate 1973 it was kept or preserved, at any rate mainly and probably exclusively, for the purpose of recreation. Owing to circumstances, it then ceased to be used really at all. There was this minimal grazing, first of all, by the old lame racehorse and then by Mr Smith’s beasts, but it seems to me that, in substance, it really ceased to be used at all probably after 1973 and certainly after 1976. The plaintiffs do keep the land, because it is said the landlord will not accept it back. The evidence is that they would like, or certainly Mrs Bradshaw would like, to keep horses again, but that Mr Bradshaw takes the view that he cannot really foresee that that will ever be possible for money reasons. It seems to me, however, that, so far as this land is kept or preserved for anything by the plaintiffs, it is still kept or preserved for recreation, with the intention of using it for that purpose if it is ever possible to do so. On this ground also, it seems to me, the paddock fails to satisfy the definition of ‘agricultural land.’ Accordingly, I would hold that the case does fall within section 26(1) of the Rent Act. It is a case where land is let together with a dwelling-house and does not consist of agricultural land exceeding 2 acres: it exceeds 2 acres but it does not consist of agricultural land. Accordingly, in my judgment, the plaintiffs are protected tenants and this appeal should be allowed and the declaration which they seek should be made. Agreeing, TEMPLEMAN LJ said: This appeal has been attractively and succinctly argued on both sides. There are bound to be borderline cases which involved deciding whether a particular piece of land is agricultural land or not. On the facts of the present appeal, I have no doubt that this is a case which falls well on the side of the dividing line and is not agricultural land. The lease authorised the tenants to use, for private or agricultural purposes, the land described in the schedule of the lease as ‘pasture’: that meaning that it was pasture at the date of the lease. The lease, therefore, authorised the tenant to use the land otherwise than as pasture and otherwise than as agricultural land. The tenants determined to use the land for private purposes, namely, as a paddock. They did so use the land as a paddock. The learned judge, rightly, found that this use was exclusively for recreational purposes. He therefore found that the land was not agricultural land from the time that the lease had started down at least to 1973. Between 1973 and 1976 there were two occasions which are referred to in the judgment. On the first occasion a friend was allowed to use the paddock to keep in what is described as a very old and lame racehorse of the age of 26 years. On the second occasion Mr Smith, the landlord himself, was allowed to use the land for some heifers and a horse. In my judgment, these two occasions did not change the use of the paddock. Singly or in aggregate they are de minimis. The tenants never intended to change back the land, so that it became agricultural land, and they did not change the use. Since 1976 the paddock has hardly been used at all, save for exercising the tenants’ dogs. The tenants are bound to keep the grass in the paddock cut and, to comply with their obligation under the lease, they employ a contractor, who cuts the grass and is allowed to remove the grass for his pains. It seems to me that, by employing a contractor to cut and take away the grass on these terms, the tenants have not changed92 the use from a paddock back to a meadow. It remains a paddock and has not been changed back to agricultural land. In my judgment, there is no evidence to justify the assertion that the land has ever been used by the tenants as agricultural land at the time it was let down to the present. In so far as the land has been used, it is as a paddock for recreational purposes; and in so far as it has not been used, because of the circumstances of the tenants, it has been preserved for the purposes of recreation. Looking at it broadly, I would expect the Agricultural Holdings Act to protect farming and the Rent Act to protect people living in dwelling-houses with their amenities. Both for the detailed reasons I have given and from the broad general approach, it seems to me that the land in question is not agricultural land but forms part of the dwelling-house. It is let with the dwelling-house and is protected by the Rent Act. Accordingly, I too would allow the appeal. Also agreeing, MEGAW LJ said: I agree that this appeal should be allowed, for the reasons which have been given by my Lords. I would wish to express my full agreement with the tribute which my Lords have paid to counsel on either side for their very clear and succinct submissions. I fully agree with the views expressed by Judge Stock, in the court below, on the submissions that were made to him on behalf of the tenant, arising out of the provisions of section 6 of the Rent Act 1977. The problem which remains involves consideration of the definition of ‘agricultural land’ in section 26(3) of the General Rate Act 1967 and its application to the facts of this case. In that subsection, it appears to me that two words of crucial importance are the word ‘used’ and the word ‘only’: ‘any land used as arable meadow or pasture ground only.’ In the present case, I have very grave doubt whether it could properly be said that the land in question here was used as meadow at all at the date when the application was made or at the date of the hearing. The only evidence of such use, if it was, indeed, evidence of such use, was the evidence as to the cutting of the grass each year–I dare say more than once a year–by a contractor, who was doing so at the instance of the tenant, Mr Bradshaw. Mr Bradshaw made those arrangements for the purpose of carrying out his obligations under the lease. But let it be assumed that the land here could be described as being ‘used as meadow’ by reason of that cutting of grass: there still remains the word ‘only.’  In my judgment, it cannot be said, on the evidence here, that this land was ‘used as meadow only,’ because there was the undisputed evidence of Mr Bradshaw that, daily, Mrs Bradshaw used this field for the purpose of walking her two dogs. The judge’s note of the evidence reads: ‘Wife uses field to exercise her dogs–2 dogs–whippet and pointer. She walks there with the dogs. Quiet, attractive paddock. . . . Grass and weeds cut by contractor. I make no money out of that, he takes hay away for his trouble. I am under obligation to have grass cut. Never grown anything deliberately on land. Never treated the land or tried to improve the land. No use since September 1976, other than the cutting of the hay and walking the dogs on it every day.’  Mrs Bradshaw’s evidence confirmed that. So there we have Mrs Bradshaw using this land for the purpose of walking the dogs on it every day. That is undoubtedly a recreational use and in the light of that evidence, I do not think it can be said that the field was ‘used as meadow only.’ If there be a question then remaining, as to which was the predominant use, as was suggested by counsel might be a question that would arise, I should have thought that here, having regard to the nature of the suggested use as meadow, in the cutting of the grass and the weeds, on the one hand, and the recreational use, in the daily walking of the dogs by Mrs Bradshaw, on the other hand, there would have been really no doubt but that, in the comparison of those two, it should be held that the land was ‘kept or preserved mainly . . . for purposes of . . . recreation’: because, on the weighing of the balance between those two, it seems to me that the scales would go down heavily in favour of the daily use for the purpose of walking of the dogs rather than the occasional cutting of the grass in order to comply with the covenant in the lease. I agree that the appeal should be allowed. Appeal allowed with costs in the Court of Appeal and with costs below on scale IV. Declaration under section 141 of the Rent Act 1977 that tenancy was a protected tenancy to be worded as agreed by counsel with liberty to apply. Legal aid taxation of appellants’ costs.