Russell v Booker

Rent Act 1977 and Agricultural Holdings Act 1948 — Whether tenancy a protected or statutory tenancy under the Rent Act or a tenancy of an agricultural holding under the 1948 Act — Appellant claimed that she was a statutory tenant by succession under the Rent Act but county court judge on an application under section 141 of the Act rejected her claim — A property comprising over 3 acres, consisting of a dwelling-house, outbuildings and land cultivated as an orchard was let in 1947 and for some years constituted an agricultural holding — In course of time the orchard deteriorated and the agricultural use, and indeed anything which could be called a business use, steadily declined — The appellant, after her father’s death, applied for a tenancy under the Agriculture (Miscellaneous Provisions) Act 1976, the respondent landlord served on her a notice to quit in reliance on Case G in section 2(3) of the Agricultural Holding (Notices to Quit) Act 1977 and applied to the agricultural land tribunal for consent to the notice — Subsequently the appellant made her application to the county court to determine whether she was a protected or statutory tenant and brought the present appeal to the Court of Appeal when the judge decided against her — The proceedings before the agricultural land tribunal were adjourned pending the outcome of the present appeal — Authorities, including Whitty v Scott-Russell and Wolfe v Hogan, discussed and the principles on which the court may infer that a change of use has led to a new contract reformulated in five important propositions — In the present case the appellant had failed to establish that the original contract under which the land was to be used for agriculture was superseded by a new contract under which there was a letting of a separate dwelling-house for the purpose of the Rent Act — The case showed that a unilateral abandonment of agricultural user, which on the authority of Wetherall v Smith results in land ceasing to be an agricultural holding, does not necessarily bring a tenancy within the Rent Act — Tenant’s appeal dismissed This was an appeal by Miss Joan Russell from a decision of Vivian Price QC, sitting as a deputy circuit judge at Wells County Court, dismissing an application by the appellant under section 141 of the Rent Act 1977 for a determination that she was a protected or statutory tenant of a property known as Gladstone House, West Pennard, Glastonbury, Somerset. The respondent to the application and to the present appeal was Mr Eric Edmond Booker, in whom the reversion in the property was vested as the personal representative of a Miss Eleanor Davis deceased. K Maitland Davies (instructed by Harris & Harris, of Glastonbury) appeared on behalf of the appellant; George Newsom (instructed by Austin & Bath, of Glastonbury) represented the respondent. Giving the judgment of the court, SLADE LJ said: This is an appeal from an order of Mr Vivian Price QC, who was sitting as a deputy circuit judge in the Wells County Court. By this order, made on December 2 1981, he dismissed an application to that court by the appellant, Miss Joan Russell. She had applied to it under section 141 of the Rent Act 1977, asking it to determine whether the tenancy of certain premises known as Gladstone House, West Pennard, Glastonbury, Somerset (in this judgment referred to as ‘the property’) was a protected or alternatively a statutory tenancy. The respondent to the appeal, who was also the respondent to her application, is Mr E E Booker. On April 18 1947 a written tenancy agreement relating to the property (‘the 1947 agreement’) was entered into between Miss Ethel Mary Davis, who was described therein as ‘the landlord’, and Mr Herbert Samuel Russell, who was described as ‘the tenant’. The operative part of the 1947 agreement began with the following words: WHEREBY the Landlord AGREES to let and the Tenant AGREES to take ALL THOSE pieces or parcels of land situate in the Parish of West Pennard in the County of Somerset containing Three acres and Twenty two perches or thereabouts and more particularly described in the Schedule hereto TOGETHER with the Dwellinghouse and buildings erected thereon or on some part thereof and known as ‘Gladstone House’ and for the purpose of identification only shown in the Plan drawn hereon and thereon coloured Pink (hereinafter called ‘the premises’) EXCEPT AND RESERVING unto the Landlord all minerals stone trees timber and underwood Subject to the following terms and conditions:– 1. The Tenancy shall commence on the Twenty-fifth day of March One thousand nine hundred and forty seven and shall continue from year to year but be determinable by either party giving to the other not less than twelve months notice to quit such notice to be served in accordance with the provisions of the Agricultural Holdings Act 1923. Clause 1 then contained a proviso for re-entry in the event of non-payment of rent or non-observance of any of the tenant’s obligations and in certain other contingencies. Clause 2 provided for the payment of a rent of £60 a year payable on the usual quarter days. By clause 3 the landlord agreed to keep the main wall, timbers and roof of the house and buildings in repair. Clause 4 read as follows: The Tenant AGREES to observe the following stipulations: (1) To PAY the Rent hereby reserved in manner aforesaid and in addition to pay all existing87 and future rates and taxes assessments and outgoings whatsoever except Landlords Property Tax Land Tax and Tithe Redemption Annuity (2)  SUBJECT as aforesaid to keep all buildings and erections on the premises in good and tenantable repair and subject to the Landlord providing timber in the rough for gates to keep in repair all gates stiles hedges walls and fences in and upon the premises to keep the hedges brushed and trimmed and to lay such as require to be done at proper seasons of the year (3)  TO KEEP the ditches and gutters in and upon the premises cleaned out and the drains sewers and water-courses open and free from obstruction and in working order (4)  TO DESTROY moles and other vermin level mole-hills and prevent docks thistles nettles and other noxious weeds running to seed in and upon the premises (5)  TO PRESERVE from injury all trees and underwood in and upon the premises (6)  TO RESIDE on the premises and not to part with the possession of any part thereof (7)  NOT TO remove or sell off from the premises any hay straw roots or fodder of any sort (8)  TO FARM manage cultivate and manure the premises in a good and husbandlike manner in accordance with the most approved methods of husbandry in the district and so as not to injure or deteriorate the same and to keep the whole of the premises in good heart and condition and as to the arable land to keep it clean and free from weeds (9)  TO YIELD up at the determination of the Tenancy every part of the premises in such a state of repair and cultivation as shall be in strict accordance with the Tenant’s stipulations herein contained (10)  TO PRESERVE prune and manage the fruit trees in the Orchard on the premises and not to cut or remove any such trees except such as shall be dead worn out unfruitful or damaged and the removal of which would benefit the premises and from time to time to replace such as shall die become worn out or unfruitful by others of an equally valuable good and suitable kind. Clause 5 conferred on the landlord certain rights to store furniture in two upstairs rooms of the house. Clause 6 contained a provision for quiet enjoyment by the tenant. The schedule, containing a more particular description of the property, read as follows: No on West Pennard Tithe Map Description State of Cultivation Quantity A r p 447 Dwelling-house, out- buildings and Garden — — 1 22 450 Orchard and Nursery Orchard etc — 2 — 451 Orchard 2  1  13 Less sold for Wesleyan 13 Orchard 2 1 — School A: 3 — 22 The schedule to the 1947 agreement thus shows that, at the time when the tenancy began, the land contained in it, other than the dwelling-house, outbuildings and garden, was cultivated as an orchard and occupied 2 acres 3 roods. There is in evidence a ‘Record of Condition’ showing the state of the land at this time. Under the heading ‘Fruit Trees’, this record gave the following description: There are 85 profitable apple and pear trees in the orchard, these trees have not been pruned for some years. After the execution of the 1947 agreement Mr Herbert Samuel Russell (‘Mr Russell’) and his daughter, the appellant, moved into the property. The learned deputy judge did not make many specific findings of fact in relation to its subsequent use beyond saying: The land was let originally as orchard land but it was used thereafter as pasture land for a cow and a calf. Chickens were let out from time to time. I was told it was not used only for these purposes but also for the purposes of a domestic nature connected with the lives of those living at the dwelling-house, their visitors, friends and children. However, there do not appear to have been many disputed matters of fact. The learned deputy judge only heard evidence from the appellant herself and brief corroborative evidence from two witnesses called on her behalf. The respondent called no evidence. The following further facts appear from the judge’s notes of evidence and the documentary evidence. For many years before 1973, when he discontinued it, Mr Russell ran a small bed and breakfast business on the property. He seems to have kept careful accounts of all his business activities on the property. There are in evidence extracts from his income tax returns covering most of the years 1950 to 1980. These appear to show that, throughout the period, he and the members of his household were enjoying benefits in kind from his cow and chickens, in the form of poultry and eggs and milk and dairy produce for family consumption. His bed and breakfast business derived similar benefits in kind so long as it continued. In most years up to his death, he also received small sums from the sale of eggs and of livestock in the form of calves, heifers or steers. He kept a cow which was served and produced calves from time to time. In most years up to 1973, but not later, he also received small sums from the sale of apples. However, Mr Russell’s annual receipts from all these various sources were never more than very modest. In the case of apples they only exceeded £30 on two occasions and ceased altogether after 1973. In the case of eggs they never exceeded £55. Over the period for 10 years before his death Mr Russell never kept more than about a dozen hens and the occasional sale of livestock did little more than cover the expenses of feeding and caring for the livestock. Annual receipts from the catering business were correspondingly modest. Up to 1965 they averaged about £200. For the next eight years, till the business ceased in 1973, they never exceeded £60. In 1949 the reversion in the property became vested in Miss Eleanor Davis. She was the freeholder at the time of her death in 1980 and the reversion is now vested in the respondent, Mr Brooker, as her personal representative. The appellant continuously resided with her father in the property from April 1947 until his death, which occurred on November 18 1980. On January 27 1981 the appellant applied to the agricultural land tribunal for a direction entitling her to a tenancy of the property under Part II of the Agriculture (Miscellaneous Provisions) Act 1976 (‘the 1976 Act’). In this application she claimed that since 1979 she had derived her principal source of livelihood from her work on the property, which she said supplied dairy and vegetable produce and eggs and some fruit. On or about February 26 1981 the respondent’s solicitors served a notice to quit on the appellant, her solicitors and the President of the Family Division of the High Court, requiring her to give up possession of the property on March 25 1982. This notice was expressed to be given in reliance on the provisions of Case G of the Agricultural Holdings (Notices to Quit) Act 1977, namely that there had died within three months before the giving of the notice a person who immediately before his death was the sole tenant under the contract of tenancy. On February 26 1981 the respondent applied under section 22(1) of the 1976 Act for the consent of the agricultural land tribunal to the operation of the notice to quit. The proceedings before that tribunal have been adjourned pending the outcome of the present appeal. On September 2 1981, before the expiration of the notice to quit, the appellant issued an originating application to the Wells County Court for an order determining whether the tenancy of the property is a protected tenancy. The application states that the net annual value of the property for rating is £201 and this is not disputed. On November 15 1981 the appellant amended her application to the county court so as to claim in the alternative that her tenancy is a statutory tenancy and adding a number of other grounds. Paragraph 1 of the grounds stated that the house is a dwelling-house. This point was not disputed before the learned deputy judge. The only ground set out in the amended application which was pursued before him and gave rise to dispute was that set out in paragraph 2(ii) as follows: Alternatively the Applicant has continuously resided in the property since April 1947 with her father, Herbert Samuel Russell, until his death on November 18 1980. The said Herbert Samuel Russell was up to the date of his death a protected tenant of the said premises by virtue of an agreement in writing dated April 18 1947 whereby the Respondent’s predecessor in title, Ethel Mary Davis, agreed to let to the said Herbert Samuel Russell a tenancy in the said premises from year to year, commencing on March 25 1947 and determinable by twelve months notice to quit given by either party. The Applicant has continued to reside in the said property and in the premises holds a statutory tenancy of the property by succession. 88 In these circumstances and on these grounds the appellant claimed before the learned deputy judge, and claims, to be a statutory tenant of the property by way of succession, having the protection of the Rent Act 1977 (‘the 1977 Act’). It was not disputed before him that if, immediately before his death, Mr Russell was, within the meaning of the 1977 Act, a ‘protected tenant’ of the dwelling-house comprised in the property, then by virtue of that Act, the appellant became a statutory tenant by succession upon his death. In substance the dispute centered on the question whether immediately before his death Mr Russell’s tenancy was a protected tenancy. Before the learned deputy judge the respondent submitted that this was not a protected tenancy on three principal grounds, namely: (1)  that the property was let by the 1947 agreement as an agricultural holding and that therefore the tenancy thereby created necessarily cannot have been or become a protected tenancy within the meaning of section 1 of the 1977 Act; further or alternatively (2)  that section 6 of the 1977 Act prevented the tenancy from being a protected tenancy; further or alternatively (3)  that section 10 of the 1977 Act prevented it from being a protected tenancy. The appellant’s counsel accepts that the appellant must succeed in refuting each of these three contentions if she is to succeed on this appeal. The learned deputy judge decided against her on the second and third of them, but not on the first. As to the first of them, section 1 of the 1977 Act provides: Subject to this Part of this Act, a tenancy under which a dwelling-house (which may be a house or part of a house) is let as a separate dwelling is a protected tenancy for the purposes of this Act. Any reference in this Act to a protected tenant shall be construed accordingly. The learned deputy judge said he did not ‘find it clear that section 1 of the 1977 Act operates to exclude the tenancy from its provenance’. He accordingly did not accept this first contention. This is the subject of a respondent’s notice on this appeal, by which the respondent submits that the learned deputy judge ought to have accepted the submission and ruled that by the 1947 agreement Miss Ethel Davis let to Mr Russell the land specified in the schedule thereto as an agricultural holding and that therefore the tenancy thereby created cannot have been or become a protected tenancy within the meaning of section 1 of the 1977 Act. As to the second of the three contentions relied on by the respondent (which was accepted by the learned deputy judge), section 6 of the 1977 Act 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 provides: (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). The meaning of ‘agricultural land’ as set out in section 26(3)(a) of the General Rate Act 1967 is as follows: (3)  In this section the expression ‘agricultural land’ (a) means any land used as arable meadow or pasture ground only, land used for a plantation or a wood or for the growth of saleable underwood, land exceeding one quarter of an acre used for the purposes of poultry farming, cottage gardens exceeding one quarter of an acre, market gardens, nursery grounds, orchards or allotments, including allotment gardens within the meaning of the Allotments Act 1922, 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; and for the purposes of this paragraph the expression ‘cottage garden’ means a garden attached to a house occupied as a dwelling by a person of the labouring classes; The land let together with the dwelling-house in the present case exceeds 2 acres in extent. Accordingly, the combined effect of sections 6 and 26 of the 1977 Act was to disqualify Mr Russell’s tenancy from being a protected tenancy if this land was ‘agricultural land’ within the definition set out in section 26(3)(a) of the General Rate Act 1967. The learned deputy judge considered, but rejected on the evidence, an argument put forward on behalf of the appellant, that the land was not ‘agricultural land’ on the grounds that it fell within the proviso to this definition, as being ‘land kept or preserved mainly or exclusively for purposes of . . . recreation’. There was some evidence before him to the effect that the Russells were very fond of their animals and regarded them as pets. On the evidence, however, he concluded that the recreational aspect of their use of the land was part of the incidental purpose, not the main purpose. His conclusion in relation to section 6 and 26 was that the land was ‘agricultural land’ within the relevant definition and that the application must be dismissed on this ground, if no other. The appellant, or her legal advisers, construed this part of his decision as being reached on the basis that the orchard and nursery referred to in the 1947 agreement constituted ‘arable meadow or pasture ground only’ within the relevant definition. Paragraph 2 of the notice of appeal criticises this part of the judgment accordingly. Though with respect to him we do not find this part of his judgment very clear, we do not interpret it as being based on this limb of the definition. Though he did not expressly say so, we infer that he must have been relying on the words ‘nursery grounds’ and ‘orchards’ which appear later in the same definition. As to the third of the three grounds relied on by the respondent, which was based on section 10 of the 1977 Act and was also accepted by the learned deputy judge, this section provides: A tenancy is not a protected tenancy if the dwelling-house is comprised in an agricultural holding (within the meaning of the Agricultural Holdings Act 1948) and is occupied by the person responsible for the control (whether as tenant or as servant or agent of the tenant) of the farming of the holding. The definition of ‘agricultural holding’ is contained in section 1 of the Agricultural Holdings Act 1948 which, so far as material, provides: (1)  In this Act the expression ‘agricultural holding’ means the aggregate of the agricultural land comprised in a contract of tenancy . . . (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 . . . . Section 94(1) of the 1948 Act defines ‘agriculture’ in terms wide enough to include (inter alia) fruit growing, dairy farming and livestock breeding and keeping, and the use of land as grazing land. The learned deputy judge concluded in effect that in the present case the dwelling-house had throughout the tenancy been comprised in an agricultural holding and that, on the evidence, the agricultural user had not been abandoned. He further rejected a submission that the land was not used for the purposes of a trade or business. In his judgment the appellant was excluded by section 10 of the 1977 Act in clear and direct terms. Though he did not specifically refer to this point, the authorities appear to show that, for the purpose of applying sections 6 and 26 of the 1977 Act, the relevant date at which one has to consider the use of the land is either the date of the application or the date of the hearing. There appears to be some doubt as to which of these two dates is the correct one. Provisions corresponding with these two sections were to be found in section 3(3) of the Rent and Mortgage Interest Restrictions Act 1939 (‘the 1939 Act’). In Mann v Merrill [1945] 1 All ER 708 MacKinnon LJ, with whose judgment Lawrence LJ agreed, expressed the view (at p 710) that in considering whether land is let together with a dwelling-house, the court must consider the state of affairs ‘at the time when the question comes before the court’. Morton LJ (at p 710), however, expressed the view that the court must consider the state of affairs ‘at the date when the landlord claimed possession’. Recently, in Bradshaw v Smith (1980) 255 EG 699, [1980] 2 EGLR 89, this court implicitly left open the question whether the relevant date for the purpose of applying sections 6 and 26 of the 1977 Act is the date of the application or the date of the hearing. Nevertheless, whichever of these two dates is the correct one, it seems clear on the present state of the authorities that, in applying sections 6 and 26, the court’s attention has to be focused on recent user of the land, rather than on the circumstances subsisting at the start of the original tenancy agreement. We suppose that the legal position would be similar when section 10 of the 1977 Act fell to be applied. 89 When these points relating to the relevant date are borne in mind, it is obvious that, in so far as the respondent’s defence to the application is based on sections 6 and 10 of the 1977 Act, the appellant has substantial points to argue. For the evidence shows that in 1973 Mr Russell’s bed and breakfast business ceased altogether, as did the sale of fruit. It also shows that since that date there has been a further, steady, running-down of any activities on the land that could either have been called agricultural or could have been said to involve the carrying on of a business. The recent decisions of this court in Hickson & Welch Ltd v Cann (1980) P&CR 218 and Wetherall v Smith [1980] 1 WLR 1290, (1980) 256 EG 163, [1980] 2 EGLR 6 show that land comprised in a tenancy may cease to be an agricultural holding protected by the 1948 Act where the agricultural user has been substantially or wholly abandoned, though, when the tenancy was clearly an agricultural one to start with, strong evidence is needed to show that agricultural user has been abandoned: see at p 1299 of the report, per Sir David Cairns. In dealing with the present appeal, however, we think it right to begin by considering the first of the respondent’s three principal submissions, that is to say the submission that the property was originally let as an agricultural holding and that therefore the tenancy necessarily cannot have either been or become a protected tenancy. For this logically comes first and, if it is correct, it disposes of the case. This submission must make it necessary to look back to the date of the 1947 agreement. The decisions of this court in Howkins v Jardine [1951] 1 KB 614 and of Pearce J in Deith v Brown (1956) 167 EG 513, illustrate that in considering whether a tenancy falls within the Agricultural Holdings Acts, the primary consideration is: what was the substantial purpose for which the premises were let?  Applying this test in the present case, we have no doubt that the property was originally let as an agricultural holding and that the terms of the 1947 agreement contemplated the continued use of the land for agricultural purposes, that is to say the maintenance of an orchard, throughout the tenancy. The schedule to the 1947 agreement had described the state of cultivation of all the land, apart from the garden, as ‘orchard’ and the original record of condition had referred to ’85 profitable apple and pear trees’. The stipulation in clause 4(10) not only obliged the tenant to preserve, prune and manage the fruit trees and to refrain from cutting or removing them, except such as should be dead, worn out, unfruitful or damaged, but also obliged him to replace those that should die or become worn out or unfruitful. The stipulation in clause 4(8) obliged the tenant to ‘farm manage cultivate and manure the premises in a good and husbandlike manner . . . ‘. A number of the other stipulations contained in clause 4 were particularly appropriate to an agricultural letting. The opening sentence of clause 1 had specifically referred to the Agricultural Holdings Act 1923. In our judgment it is clear that, after the 1947 agreement had been executed, the land constituted a ‘holding’ within the definition contained in section 57(1) of the Agricultural Holdings Act 1923 and that after the 1948 Act came into force, at least for a number of years, it constituted an ‘agricultural holding’ within the definition contained in section 1 of that Act. It was used for ‘agriculture’, as defined in section 94(1) of the 1948 Act, and was used for the purpose of a business, namely the sale of fruit and livestock and also Mr Russell’s bed and breakfast business. It is common ground that, provided that the user itself is agricultural, the business itself does not have to be agricultural, for the purpose of falling within section 1(2) of the 1948 Act. It is correspondingly clear in our judgment that, at the date when this tenancy began in 1947, and at least in its earlier years, the Rent Acts did not apply to it: see section 3(3) of the 1939 Act. Mr Maitland Davies, as we understood him, did not seriously contest that, after the 1948 Act came into operation, the property was for a time an ‘agricultural holding’ within the meaning of that Act. Paragraph 1 of the grounds set out in the appellant’s notice of appeal implicitly conceded the point, because it began with the words: That the learned deputy judge ought not to have found that at the date of the application the said house and land was still an agricultural holding within the meaning of the Act, but ought to have found that it had ceased to be such a holding because . . . . Essentially the appellant’s case has to be based, and is based, on the premise that, because of an alleged subsequent change of user of the property by Mr Russell from the agricultural user originally comtemplated by the 1947 agreement, the tenancy moved out of the protection of the Agricultural Holdings Acts into the protection of the Rent Acts. In Wolfe v Hogan [1949] 2 KB 194 this court had to consider the position where a tenant in effect claimed that a tenancy, which had not originally been protected by the Rent Acts, had acquired such protection through a subsequent change of user by the tenant. The user contemplated at the time of letting of the premises had been that of a shop only. In answer to a claim for possession by the landlord, the tenant claimed that the premises were ‘let as a separate dwelling’ within the meaning of section 12(2) of the Rent and Mortgage Interest (Restrictions) Act 1920. She submitted that if, by the terms of the original letting, there was no prohibition against user as a dwelling-house, then the question whether premises were let as a separate dwelling had to be answered by showing what was the user at the time when proceedings for possession were begun. She contended that, because the landlord had continued to accept rent from the tenant in the knowledge that she was residing on the premises, he could not be heard to say that the premises were let as a separate dwelling. Both these arguments were rejected by this court (Bucknill, Evershed and Denning LJJ). The judgments in Wolfe v Hogan were carefully analysed by Asquith LJ delivering the judgment of this court in Whitty v Scott Russell [1950] 2 KB 32. In the course of this judgment he referred to an argument, based on the decision in Wolfe v Hogan, that where there has been a formal instrument of letting, the terms of which express the purpose for which the premises were let, this is conclusive. In regard to Wolfe v Hogan he had this to say (at pp 39-40 of the report): In that case there was no express provision in the lease as to the ‘purpose’; in the present case the tenant expressly covenanted to use the premises as ‘a private dwelling-house only’, and if Denning LJ’s proposition is to be taken as both authoritative and unqualified, it clinches the tenant’s argument. Evershed LJ in the first judgment appears to accept this view, though whether with some, and if so what, qualifications is a question which must be explored. Bucknill LJ gave no reasons, but simply agreed with the judgment of Evershed LJ. Evershed LJ cited Gidden v Mills [1925] 2 KB 713, and the following passage among other passages from judgments of the Court of Appeal, ‘the important matter is the rights under the lease, not the de facto user’: Barrett v Hardy Bros (Alnwick) Ltd [1925] 2 KB 220, 227. ‘If an agreement were to let premises as a barn the tenant, though he lived there, could not be heard to say that they were let as a dwelling-house’ (per Bankes LJ in Epsom Grand Stand Association v Clarke [1919] WN 170). He then goes on to approve this passage from Mr Megarry’s book on the Rent Restriction Acts (4th ed) p 19: ‘Where the terms of the tenancy provide for or contemplate the use of the premises for some particular purpose, that purpose is the essential factor, not the nature of the premises or the actual use made of them. Thus, if premises are let for business purposes, the tenant cannot claim that they have been converted into a dwelling-house merely because somebody lives on the premises.’  Mr Megarry goes on to say that actual user at the time when possession is claimed must be considered where the tenancy agreement contemplates no specified use. The only qualification annexed to this general statement by Evershed LJ is contained in a passage lower down on the same page: ‘Again I wish to make it quite plain that I am saying nothing which should be taken as indicating that if a tenant does change the user and creates out of what was formerly a shop a dwelling-house, and if that fact is fully known to and accepted by the other party to the contract, whether or not there is a prohibition, the result may not very well be that there will then be inferred a contract to let as a dwelling-house, although it may be a different contract in essentials from the contract which was originally made and expressed.’ In other words, where the original contract was for a particular user, but by the time the plaint is issued has been superseded by a subsequent contract providing for a different user, the subsequent contract may be looked to in deciding whether the premises are let as a ‘dwelling’ or ‘separate dwelling’. This qualification (which was obiter in Wolfe v Hogan) does not apply to the facts of the present case, in which there have not been two successive contracts providing for different users; and the principle is asserted without any such qualification in earlier decisions of the Court of Appeal. We take the decision of this court in Whitty v Scott-Russell, read in conjunction with its decision in Wolfe v Hogan, as authority for the90 following propositions, which fall to be applied in the present case: (1)  Where the terms of a tenancy agreement provide for or contemplate the use of the premises for some particular purpose, then, subject to the qualification mentioned in (2) below, that purpose is the essential factor in deciding the question whether or not the house can be said to have been let ‘as a separate dwelling-house’ so as to fall within the Rent Acts. (2)  Nevertheless, where the original tenancy agreement provided for or contemplated the use of the premises for some particular purpose, but, by the time when the possession proceedings are begun, that agreement has been superseded by a subsequent contract providing for a different user, the subsequent contract may be looked at in deciding the latter question. (3)  If a tenant changes the user of the premises and the fact of the change if fully known to, and accepted by, the landlord, it may be possible for the court to infer a subsequent contract to let them ‘as a separate dwelling-house’, although this would be a contract different in essentials from the original tenancy agreement. (4)  However, unless a contract of the last-mentioned nature can be spelt out, a mere unilateral change of user will not enable a tenant to claim the protection of the Rent Acts in a case where the terms of the tenancy agreement itself provide for and contemplate the use of the premises for some particular purpose which does not attract the protection of those Acts — for example as a shop or agricultural holding. (5)  Where the tenancy agreement itself does not provide for or contemplate the use of the premises for any particular purpose, actual subsequent user has to be looked at in determining whether a house is ‘let as a separate dwelling-house’, so as to attract the protection of the Rent Acts. For reasons already given, the present case is manifestly one where the terms of the original tenancy agreement did contemplate the use of the land for a particular purpose, that is to say as an agricultural holding for agricultural purposes, namely the maintenance of an orchard. If therefore the appellant is to claim that the tenancy has been removed out of the protection of the Agricultural Holdings Acts and into the protection of the Rent Acts, then, in accordance with the principles already stated, she must in our judgment establish that the original tenancy agreement was superseded by a different contract providing for a different user of the property. We do not think she has come near to establishing this on the evidence. The evidence does suggest that the stipulation contained in clause 4(10) of the 1947 agreement was never enforced by the landlord and that at least by 1973, when the sale of apples ceased altogether, the trees in the orchard had deteriorated to a very poor condition, from which they have never recovered. It further suggests that for some years preceding Mr Russell’s death, the orchard land was for practical purposes no longer being used as an orchard, but was being used to accommodate the animals and chickens referred to earlier in this judgment, and to some extent for recreational purposes. Mr Maitland Davies, while accepting that there was no evidence that the landlord had actual knowledge of any such change of user, submitted that she or he should be treated as having had constructive knowledge of it. He submitted in effect that the landlord, having failed to enforce the stipulation in clause 4(10) and having implicitly assented to such change of user, must be deemed to have assented to the letting becoming a letting of the property as a separate dwelling-house. He relied on the qualification to the general principle expressed by Evershed LJ in Wolfe v Hogan, at p 203, in the passage quoted by Asquith LJ in Whitty v Scott-Russell at p 40 and cited above. In our judgment, however, this qualification does not assist the appellant in the present case, because the evidence does not come near to establishing the existence of a subsequent contract involving the letting of the property ‘as a separate dwelling-house’. We say nothing about the position that might have arisen if the evidence had shown that the landlord had accepted rent for many years with full actual knowledge of the condition of the property and its user. However, there was no evidence whatever before the learned deputy judge as to the state of actual knowledge of Miss Ethel Davis or Miss Eleanor Davis or the respondent in relation to these matters. This alone is fatal to the appellant’s contention. Alleged constructive knowledge on their part does not suffice to enable a new contract to be spelt out because it is on the evidence mere conjecture and not inference that the landlord knew of the alleged cesser of agricultural use at or before the date of the plaint. The terms of the original 1947 agreement accordingly remain the essential factor in deciding whether the tenancy was one under which the dwelling-house was ‘let as a separate dwelling’ within the meaning of section 1 of the 1977 Act. They show that the tenancy was not of this nature. A letting of agricultural land exceeding two acres in extent, albeit together with a dwelling-house, which is intended by both parties to be a letting for agricultural purposes and to confer on the tenant the protection of the Agricultural Holdings Acts, is in our opinion quite inconsistent with the letting of the house as a separate dwelling-house. On the authority of Wetherall v Smith we accept that unilateral abandonment by the tenant of agricultural user of land may cause it to cease to be an ‘agricultural holdings’. However, on the authority of Wolfe v Hogan and Whitty v Scott-Russell, we cannot accept that a mere unilateral change or abandonment of user by a tenant, which is not embodied in a new contract between landlord and tenant, express or implied, can operate to take a tenancy which did not begin by being protected by the Rent Acts into the protection of those Acts. The necessary consequence of this conclusion, as Mr Maitland Davies pointed out, is that a tenant of agricultural land including a dwelling-house may in certain circumstances lose the protection of the Agricultural Holdings Acts without acquiring the protection of the Rent Acts. We do not find this conclusion unacceptable. In a case where the original tenancy agreement provides for or contemplates the user of the premises as an agricultural holding for agricultural purposes and the tenant subsequently contemplates a change of user, it is always open to him to attempt to negotiate a new contract with his landlord. For the reasons which we have given, the first of the respondent’s three contentions, which is reflected in the respondent’s notice, is in our judgment well-founded in law. This is sufficient to dispose of the appeal. We do not find it necessary to consider the second and third of the respondent’s contentions on the basis of which the learned deputy judge gave his decision. We therefore should not be taken as necessarily accepting the correctness of all his conclusions on these two contentions. On the grounds already stated, albeit different from those relied on by him, we must dismiss this appeal. The appeal was dismissed with costs. The court ordered that the appellant should have no liability for the payment of such costs, that the respondent’s costs should be paid out of the Legal Aid Fund, and that the Legal Aid Committee of the Law Society should have 10 weeks in which to make representations.