Home Information Cases Floyer-Acland & Ors v Osmond (2000)

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Floyer-Acland & Ors v Osmond (2000)

Summary

"Use" in Case B, Sch.3 Agricultural Holdings Act 1986 did not have the meaning attributed to it by s.336 Town and Country Planning Act 1990 and did not exclude building and other operations. * Leave to appeal to the House of Lords refused.

Facts

Landlords' appeal and tenant's cross-appeal from the decision of Mr Recorder Jarvis sitting in Weymouth County Court on the validity of a notice to quit under the Agricultural Holdings Act 1986. The recorder was deciding on a special case stated by the arbitrator under para.26, Sch.11 to the 1986 Act. The landlords gave notice to quit of three months in respect of only part of the holding pursuant to clause 43 of the tenancy agreement (which allowed the landlord to give three months' notice of the determination of the tenancy of up to one-tenth of the holding in any year for any purpose or purposes, not being the use of the land for agriculture) and Case B, Sch.3 to the 1986 Act. They wished to recover the land for the purposes of mineral extraction, for which they had obtained planning permission, limited to the period ending 31 December 2003, and subject to the condition that the site should be restored thereafter to agricultural use. The tenant, disagreeing that Case B applied, served a counternotice. When, consequently, the operation of the notice to quit was suspended pending arbitration, the landlords gave notice that they would exercise their rights under clause 3(3) of the tenancy agreement (exceptions and reservations) to enter onto the holding to search for, work and remove the minerals. The land had been worked by the landlords since then. The recorder concluded that the notice to quit was properly given under clause 43 and therefore fell within the exception to s.25 of the 1986 Act, which section required 12 months' notice. However, the circumstances did not fall within Case B, which provided exceptions to the security of tenure provided by the 1986 Act. Case B applied (inter alia) where the notice to quit was given on the ground that the land was required for a use, other than for agriculture, for which permission had been granted on an application made under the planning legislation. On appeal, the proper construction and ambit of clause 43 and Case B were dealt with separately. The tenant appealed on three points in respect of clause 43. (i) Whether in clause 43 "any purpose or purposes" had to be construed so as to exclude from the ambit of that clause purposes capable of achievement pursuant to any of the provisions of clause 3. (ii) Whether such purpose or purposes to be within clause 43 were to be such as, if implemented, would take the land permanently out of agriculture. (iii) Whether the phrase in clause 43 "any purpose or purposes, not being the use of land for agriculture" predicated that none of the purposes for which the landlords wished to regain possession of the land included the use of the land for agriculture. The landlords' appeal on Case B turned on the construction of the words "the notice to quit is given on the ground that the land is required for a use, other than for agriculture...". The issues were as follows. (i) Whether the land was not so "required" where the purpose of the landlords might be achieved through the exercise of the rights conferred by clause 3(3) of the tenancy agreement. (ii) Whether the meaning of the word "use" was that commonly found in the planning context, and as defined in s.336 Town and Country Planning Act 1990, and did not include mining operations (this point was the subject of the landlords' appeal). (iii) Whether the uses for which the land was required included its use for agriculture.

Held

(1) Clause 43 referred to "any" purpose or purposes, not involving "the use of the land for agriculture". The fact that all or some of the purposes of the landlords might be achievable by an exercise of the right conferred by clause 3 was immaterial. The two rights were different and were attended by different limitations and consequences. Clause 3 could not limit the ambit of the phrase "any purpose or purposes". Provided that the purpose of the landlords in seeking to resume possession did not fall within the exclusion there was no reason why it should be implied in the non-agricultural purpose of the landlord that it should be so all-embracing as to exclude the possibility of any agricultural use permanently or for the foreseeable future. If it were shown that the landlords had two or more concurrent purposes, one of which involved the use of the land for agriculture, then they would not be entitled to determine the tenancy. However, in this case the landlords' purpose was to work the minerals and the subsequent execution of the works of restoration and aftercare was the necessary condition to its achievement. (2) In the context of Case B, the question was whether possession of the land was required for a use, not whether the landlords required it. In this case the use went well beyond what could be authorised by clause 3(3). Possession of the land was therefore required for the use for which permission had been granted and was required by the landlords in the sense that they genuinely wished to regain possession for that purpose. The judge was wrong to hold that "use" in Case B had the meaning attributed to it by s.336 of the 1990 Act and thus excluded building and other operations. This was contrary to the overall construction of the 1986 Act (particularly s.31(1)(b) and Sch.3 Part II para.8(b)) and the relationship of the 1986 Act to the Opencast Coal Act 1958. As possession of the land was not required for any agricultural use, issue (iii) on Case B did not arise.

Appeal allowed. Cross-appeal dismissed.

Court of Appeal
Morritt LJ, Schiemann LJ
Judgment date
6 April 2000
References

​LTL 6/4/2000 : (2000) P & CR 229 : (2000) 2 EGLR 1 : (2000) 22 EG 142 : (2000) EGCS 53

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