Home Information Cases Robert Mark Jewell v (1) Diana Margaret McGowan (2) Paul Merrett Gibbons (2002)

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Robert Mark Jewell v (1) Diana Margaret McGowan (2) Paul Merrett Gibbons (2002)

Summary

The activities involved in operating an "open farm" on agricultural land used for dairy farming would give rise to a breach of a tenant's covenant to "use the holding for agricultural purposes only". The education of children and the public generally about agriculture and dairy or organic farming was not an agricultural purpose.

Facts

Landlords' appeal from a decision of Mr Recorder de Navarro QC by which he declared that the proposed activities of the respondent tenant ('T') in operating an "open farm" on agricultural land leased by him for dairy farming would not give rise to a breach of a covenant on the part of T to "use the holding for agricultural purposes only". The proposed activities consisted of the creation of a new farm access road, the parking of visitors' vehicles on an area of land to be designated for that purpose, the walking by visitors on a route-marked trail across the farm, access to the farm for visitors to roam and look at the animals and crops, and the driving of visitors around the farm on a trailer pulled by a tractor. The judge held that the covenant permitted, within an essentially agricultural use, exceptions such as the proposed activities, since they would not substantially affect the agricultural character of the tenancy nor the primary use of the land for agricultural purposes. He also stated that, if necessary, he would have held that the proposed activities, related as they were to a continuing working farm, were essential to the promotion of farming and the overall profitability of T's business, such that they could properly be described as being used for agricultural purposes.

Held

(1) The judge's construction of the covenant failed to give any or any sufficient weight to the word "only", and instead reduced it to meaning "mainly". It was quite clear that the covenant positively excluded any purpose other than agriculture. (2) The proposed activities were not an agricultural purpose. Even though the primary activity of farming would continue, the additional activity of educating children and the public generally about agriculture and dairy or organic farming was entirely distinct in character and purpose from the agricultural enterprise. Equally the undertaking of open farm activities for the making of profit was not an activity undertaken for agricultural purposes, even though the profits would be devoted to the tenant's agricultural enterprise. It was a separate commercial activity and it could not derive its character or purpose from the fact that the tenant might chose to devote profits to his farming business.

Appeal allowed.

Court of Appeal
Mance LJ, Park J
Judgment date
28 February 2002
References

​[2002] EWCA Civ 145