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29th January 2021

Case B Notices to Quit: Two recent decisions seek to clarify the law

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Schedule 3 Case B of the Agricultural Holdings Act 1986 (“AHA”) allows a landlord to serve a notice to quit on a tenant to recover land which is subject to an AHA tenancy where there is development in prospect.

In order for the notice to be valid however the land in question must be ‘required’ by the landlord (or the developer) for ‘non-agricultural use’. Two recent decisions have sought to further clarify these grounds.

Rees v Windsor-Clive and others [2020] EWHC 2986 (Ch)

The claimant was the tenant of two AHA tenancies and was challenging an arbitration award upholding the validity of Case B notices to quit served on him by his landlords.

The Court noted that in order for a Case B notice to be valid, the land in question must be ‘required’ at the end of the period stated in the notice or within a relatively short time thereafter. The claimant argued that the arbitrator had failed to determine this noting that the permitted development was to be carried out in a number of phases within a period of twenty years. The Court held in favour of the landlord. The arbitrator had decided there was a present requirement for the land for earth-moving, storage and infrastructure works. The arbitrator was not required to set out when particular parcels were required.

Further, a provision in one of the original tenancies permitted the landlord to recover land for ‘building development’. The claimant argued that the construction of a cycleway did not constitute ‘building development’. The Court however held again in favour of the landlord and the arbitrator’s decision finding that the cycleway was to be part of the highway and as such amounted to ‘building development’.

Kirby & Ors v Baker & Metson Ltd [2020] EWHC 2640 (Ch)

The claimants were the tenants of an AHA holding in which the defendant landlord had served a notice to quit on them under Schedule 3 Case B(b)(ii); which provides that a notice to quit may be given on the basis that planning permission is granted by development permitted under an order approved by both Houses of Parliament. In this case the landlord relied upon the Town & Country Planning (General Permitted Development) (England) Order 2015 (“2015 Order”).

However, the 2015 Order had been made law by ‘negative procedure’ which is where an order automatically passes into law unless either Houses of Parliament object. The tenant therefore argued that the wording under Case B(b)(ii) required that the 2015 Order be made by ‘affirmative procedure’ (i.e. positively approved by both Houses of Parliament) and as such the notice was invalid.

The Court in this case ruled in favour of the tenant deciding that the use of the word “approved” in the legislation was a clear indication of active approval and therefore the ‘affirmative procedure’ was required under Case B(b)(ii).

 

For more information on any of the items raised in this article please contact Gregory Hill on 01604 233233 or click here to email Gregory.