Harley v Hood

Rent Act 1977 — Action for possession — Case 16 in Schedule 15 — Appeal from decision of county court judge — Dwelling required by owner for agricultural worker — Questions whether before present tenancy the dwelling-house had been occupied by a person employed in agriculture and, if so, whether it was occupied under the terms of his employment — ‘Agriculture’ as defined in the Agricultural Wages Act 1948 — Evidence before county court judge established that the previous occupier trimmed hedges, looked after woodlands (coppicing and so on) and carried out some hay making which was more than the de minimis — There was also evidence that he occupied the dwelling-house on the terms that he carried out agricultural work for the plaintiff — Appeal by tenant dismissed and possession ordered under Case 16 This was an appeal by the tenant, Stephen John Wood, from a decision of Judge Mark Smith at Guildford County Court granting to the landlord, Guy Henry Harley, possession of a dwelling-house known as Pond Cottage, near Chiddingfold in Surrey. The landlord, plaintiff in the county court proceedings, had claimed possession under Case 16 in Part II of Schedule 15 to the Rent Act 1977. Kim Lewison (instructed by Goodman, Derrick & Co) appeared on behalf of the appellant tenant; Philip Havers (instructed by Barlows, of Godalming) represented the respondent landlord. Giving judgment, CUMMING-BRUCE LJ said: This appeal raises two questions of construction on the provisions of Case 16 in Part II of Schedule 15 to the Rent Act 1977, that being a schedule having effect under section 98 of that Act. Case 16 reads: Where the dwelling-house was at any time occupied by a person under the terms of his employment as a person employed in agriculture, and . . . (b) not later than the relevant date, the tenant was given notice in writing that possession might be recovered under this Case, and (c) the court is satisfied that the dwelling-house is required for occupation by a person employed, or to be employed, by the landlord in agriculture. For the purposes of this case, ’employed’, ’employment’ and ‘agriculture’ have the same meanings as in the Agricultural Wages Act of 1948, so one turns to the interpretation section of the Agricultural Wages Act 1948, which is section 17 and which, so far as it is relevant, reads: ‘Agriculture’ includes dairy-farming, the production of any consumable produce which is grown for sale or for consumption or other use for the purposes of a trade or business or of any other undertaking (whether carried on for profit or not), and the use of land as grazing, meadow or pasture land or orchard or osier land or woodland or for market gardens or nursery grounds; ‘consumable produce’ means produce grown for consumption or for other use after severance from the land on which it is grown . . . ’employment’ means employment under a contract of service or apprenticeship, and the expressions ’employed’ and ’employer’ shall be construed accordingly. Throughout this judgment I shall refer to the parties as ‘plaintiff’ and ‘defendant’, the defendant being the appellant in this court. There is a house called Pond Cottage, near Chiddingfold in Surrey. On October 1 1973 the then owner, the plaintiff, entered85 into a tenancy agreement with the defendant. The defendant had been a tenant for a year before the tenancy agreement was entered into, and by a recital of the tenancy agreement it was recited: ‘Whereas the Premises (hereinafter defined) have heretofore been occupied by a person employed by the Landlord in agriculture and the Landlord may after the expiry of the tenancy hereby created once again require possession of the Premises for occupation by a person employed in agriculture,’ the agreement witnessed the grant of the tenancy for a term determining on October 17 1974. On the expiry of the contractual tenancy the tenant held over and occupation and possession thereafter were subject to the statutory rights of the Rent Acts. The plaintiff claims possession. On March 18 1980, by his statement of claim, he set out the grounds on which he claimed possession, relying on Case 16 of the Rent Act. The proceedings, when they came on before the learned county court judge, raised a number of other issues, and there was a counterclaim; but those issues have disappeared from the proceedings before the court on this appeal. The only questions arising on this appeal are those raised by the grounds of appeal. By the defence the defendant put the plaintiff to proof of the allegation that Case 16 applied to the situation. On September 8 of last year the case was heard in the county court. The learned judge made an order for possession, granting possession to the plaintiff on October 7 1980. The defendant appeals. The only question raised by the grounds of appeal is whether, on the facts found by the learned judge, Case 16 was made out. The way in which it is put is ‘That the learned judge erred in law in deciding on the facts as found by him that the dwelling-house, in respect of which possession was claimed by the plaintiff, was at any time occupied by a person employed in agriculture and, in the alternative, that if the said dwelling-house was at any time occupied by a person employed in agriculture, that it was so occupied by a person under the terms of his employment’. On the first question, whether the house was at any time occupied by a person employed in agriculture, one therefore turns to the findings of fact by the learned judge. There was a Mr Snelling, who had occupied Pond Cottage for nearly 30 years before he gave up his tenancy. He worked full time for the county council as a sign-writer and worked for the plaintiff in his spare time. To begin with, he started working for the plaintiff about one day a week. He planted vegetables and trimmed hedges, looked after the woodlands, did some coppicing and some haymaking. The learned judge said: One of the issues raised in the case was whether that activity made him a person employed in agriculture. It was suggested on behalf of the defendant that Mr Snelling was no more than a handyman. That may be so, but if he was, he was an agricultural handyman. His son said of the woodland, that when his father first took it over it was wild and when it was finished it looked a professionally treated wood. The evidence is that his father loved woodlands and worked there in preference to other activities. The woodland covered some five acres. I have no doubt that he was a person employed in agriculture — not wholly or full time — but employed. As to those facts, first as to the planting of vegetables it is conceded in this court on behalf of the respondent, the plaintiff, that that is not a relevant fact for the purposes with which the judge and this court are concerned. The point is taken upon the judge’s finding that Mr Snelling did some haymaking, and we were invited to look at the evidence in support of a submission that the evidence demonstrated that the only haymaking done by Mr Snelling was of such a minor character as to attract the application of the de minimis maxim. We therefore looked at the evidence. From that it appeared that the plaintiff had given the answer in his evidence in chief that Mr Snelling ‘planted the vegetables, trimmed the hedges round the fields, did what was required in the woodlands (coppicing and so on), made hay’. The only other evidence relating to haymaking was the testimony of Mr Snelling’s grown-up son, who said in chief that his father ‘did hedge-trimming, keeping the place tidy. Once I remember them haymaking one field. He hedged and ditched that field’. There was no cross-examination before the learned judge directed to establishing that the evidence of haymaking was haymaking of such a miniscule character or quantity as to attract the maxim de minimis. In those circumstances Mr Lewison was in a difficulty — he had not appeared in the court below — in inviting the court to hold, as a question of mixed law and fact, that the haymaking described in evidence was totally insignificant for all relevant purposes. For my part, in the absence of cross-examination establishing that the haymaking element had that quality, I am not satisfied that there is any ground for holding that the haymaking activities of Mr Snelling senior were of such a minor character as to be insignificant and capable of being disregarded. So what was left was the activities of Mr Snelling, trimming hedges, looking after the woodlands and doing coppicing, together with the haymaking. On that, the submission on construction made by Mr Lewison was that by the terms of Case 16 ‘agriculture’ has the meaning expressed in section 17 of the Agricultural Wages Act, which I have already quoted. That definition, for the purposes of the Agricultural Wages Act and therefore for the purposes of Case 16, has two clearly distinguishable legs. The first leg reads as follows: ”Agriculture’ includes dairy-farming, the production of any consumable produce which is grown for sale or for consumption or other use for the purposes of a trade or business or of any other undertaking (whether carried on for profit or not) . . .’. The point was taken by Mr Lewison that, as a matter of construction of those words, the words ‘for consumption or other use for the purposes of a trade or business or of any other undertaking (whether carried on for profit or not)’ should be construed so that the phrase ‘for the purposes of a trade or business or of any other undertaking (whether carried on for profit or not)’ qualifies not only ‘other use’ but also the words ‘for consumption’. In the circumstances that have arisen, and having regard to the concession that has been made in relation to the growth of vegetables, I am satisfied that in this court it is unnecessary to decide that question of construction and I express no opinion upon it; I think it more appropriate that that matter be decided when it is necessary for the decision of the case. The second leg of the definition, after a comma, reads as follows: ‘. . . and the use of land as grazing, meadow or pasture land or orchard or osier land or woodland or for market gardens or nursery grounds’. Mr Lewison makes what I would venture to describe as a rather bold submission that, in spite of the drafting of the agriculture definition the qualification ‘for the purposes of a trade or business or of any other undertaking (whether carried on for profit or not)’ as a matter of construction qualifies the words in the second leg of the definition as well as in the first leg. It is perfectly plain, as a matter of language, that the language selected by the draftsman is such that on the plain and ordinary meaning of the words, the qualifying phrase ‘for the purposes of a trade or business’ etc only qualify the first leg of the definition, and the second leg, beginning with the words ‘and the use of land as grazing’ etc, has no such express qualification. Mr Lewison submitted that he could derive assistance from a case on the Agricultural Wages Act which was concerned with the meaning of the phrase ‘market gardens’, and in relation to the meaning of that phrase the court looked at the context of the Agricultural Wages Act, looked at the provisions, purpose and object of the Act and the mischief which it was intended to meet, and decided that it derived assistance from that context in determining what sort of garden was a market garden for the purposes of the definition. Without in any way casting any doubt upon the decision in that case which, with respect, I would venture to say was clearly right, there is nothing in the judgments in the case to lead one, when considering the meaning of the second leg of the definition of ‘agriculture’, to look outside the words of the subsection as drafted by the draftsman. Where it is perfectly plain that the draftsman has qualified the first leg with the limitation ‘for the purposes of a trade or business’ etc, but has not inserted any such limitation upon the uses described in the second leg, I can see no reason for departing from the ordinary meaning of the words and, in effect, redrafting86 the subsection so as to write into the last three lines of the subsection words that are not there. For that short reason, profound as is my admiration for the ingenuity of Mr Lewison in developing the point, I can see no reason to accept his invitation upon the construction of that definition. For that reason I would reject the first of his submissions raised on this appeal. The second point taken is that, on the facts, the learned judge was wrong in holding that Mr Snelling was at any time occupying the dwelling-house ‘under the terms of his employment as a person employed in agriculture’ during the period when Mr Snelling was occupying the house at the time when the plaintiff was the landlord thereof. I turn to the findings of the learned judge, which I quote: Has the plaintiff shown that Snelling is included in the first part of this Case?  He worked one day a week to begin with and after retiring increased this to two days a week. He was paid by the plaintiff. It emerged clearly that the main reason for employing Mr Snelling was that Mr Snelling lived at Pond Cottage. It was a convenient place. As far as I know there was no one else near who might have been able to do the work. Before Snelling retired from the council, the owners of Pond Cottage broke up their holding. The cottage was up for sale. Mr Snelling was concerned lest he be evicted. He asked (the plaintiff) if he would buy the cottage to prevent that. The plaintiff needed someone to look after his land. The person in Pond Cottage would be the most appropriate, if not the only possible person to do so. The plaintiff therefore agreed to buy the cottage and allow Mr Snelling to live in it on condition that he continued to do work for the plaintiff. There is no evidence before me as to whether Mr Snelling had a protected tenancy before the sale. I have to begin with the agreement reached with Mr Harley. It clearly amounts to an agreement that Mr Snelling would occupy the cottage because he would continue to do work for Mr Harley. If not, Mr Harley would not have bought the cottage and the presumption must be that Snelling would have been out of the cottage because that was the fear in his mind. It follows that he was a person employed in agriculture and occupied the property under the terms of his employment. . . . Mr Lewison presents his submission on this in a neat argument. He says that Mr Snelling was already there, occupying the cottage as a tenant of somebody else when he first entered the employment of the plaintiff. Case 16, submits Mr Lewison, requires that the tenant must be let into occupation because he is employed. It is not enough for the landlord to agree to allow him to continue in occupation as long as he is employed, because then the employment becomes only a coincidence. He puts the test in this way: I say that he was working for the plaintiff because he was in occupation; he was not occupying the cottage because he was employed by the plaintiff; and Mr Lewison sought to derive assistance from the case of Long Eaton Co-operative Society Ltd v Smith [1949] 2 KB 144, where the court held that there was no nexus between the occupation of the dwelling-house and the employment of the tenant by the co-operative society. But on the findings of the learned judge this is a very different case. In my view the vital words were these: ‘The plaintiff therefore agreed to buy the cottage and allow Mr Snelling to live in it on condition that he continued to do work for the plaintiff’. That agreement, thus described, has these ingredients. It was an agreement that the landlord would grant the tenancy for such period as the tenant continued to work for the plaintiff, and if Mr Snelling ceased to work for the plaintiff, on the face of the agreement thus briefly described, in the absence of statutory protection the plaintiff would have a contractual right to determine Mr Snelling’s tenancy and, as the judge held, there was no evidence before him as to whether Mr Snelling had a protected tenancy before the sale. Mr Lewison submitted that the judge was wrong in holding that there was a presumption that Mr Snelling would have been out of the cottage because, to use the words of the judge, that was the fear in his mind. But when one looks at the concise description of the tenancy agreement between the plaintiff and Mr Snelling, for my part I would say that it fulfils the usual provisions of a conditional agreement, whereby Mr Snelling had a right to continue to occupy the cottage as a tenant so long, but only so long, as he continued to work for the plaintiff; and I would take the view that the judge was right, on the facts that he has found, in holding that in the hypothetical event of Mr Snelling’s ceasing to work for the plaintiff, the plaintiff would have had a contractual right to determine the tenancy and evict Mr Snelling from the cottage. On those facts this case may be contrasted with the facts in the Long Eaton Co-operative case, where there was no nexus between the occupation of the residents and the employment of the occupier. In this case the very opposite is the case; there is the clearest possible nexus between the employment of the plaintiff who, by the terms of his agreement, had a right under the terms of his employment to stay in the cottage so long as he continued to be employed by the plaintiff, but no longer. For those reasons I would hold that the judge was right in holding that the plaintiff has made out all the necessary ingredients of Case 16, and I would dismiss the appeal. BRIGHTMAN LJ agreed. The appeal was dismissed with costs, the appellant tenant to give possession within seven days.