Lancashire County Council v Taylor & Anor [2004] EWHC 776 (QB)

[2004] EWHC 776 (QB)Case No HQO3X01637
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 7 th April 2004
Before
THE HONOURABLE MR JUSTICE STANLEY BURNTON
Between
LANCASHIRE COUNTY COUNCILClaimantJOSEPH TAYLORDefendant
Paul Morgan QC and Jane Mulcahy (instructed by the County Secretary and Solicitor) for ClaimantJoanne Moss and Hugh Mercer (instructed by Napthens) for DefendantPhilip Sales and Paul Harris (instructed by DEFRA Legal Department) for IntervenorHearing Hearing dates: 30-31 March, 1 April 2004
Judgment

Introduction

[1]In these proceedings the Claimant seeks possession of Pollards Farm near Preston in Lancashire, an agricultural holding of which it is the freehold owner and which is occupied by the Defendant. His defence raises a number of issues as to the compatibility of the Agricultural Holdings Act 1986 (“the 1986 Act”) and subordinate legislation made under it with the European Convention on Human Rights, and the effect of the Human Rights Act 1998 (“the 1998 Act”) on acts of public authorities before it came into force. The issues concern, in particular, the provisions of the 1986 Act and subordinate legislation relating to a claim by a landlord for possession of a agricultural holding on the ground that the tenant failed to comply with a statutory notice requiring him to remedy a breach of his tenancy agreement otherwise than by doing work of repair, maintenance or replacement.[2]In summary, the Defendant contends that the applicable provisions of the 1986 Act are incompatible with the Convention, and that as a result the acts of the Claimant to terminate his tenancy were of no legal effect.[3]The Defendant’s contentions as to the incompatibility of the 1986 Act and subordinate legislation led to the intervention of the Secretary of State for Environment, Food and Rural Affairs. A declaration of incompatibility is sought by the Defendant.[4]If the Defendant’s arguments under the 1998 Act fail, the Claimant is entitled to possession.

The facts

[5]The relevant facts are not in dispute and may be shortly stated. The Claimant (“the County Council”) is a smallholdings authority within Part III of the Agriculture Act 1970 and the freehold owner of Pollards Farm. The Defendant was (on the County Council’s case: on his case he still is) the tenant of Pollards Farm, which is a smallholding within the meaning of that Act.[6]Mr Taylor and his wife live in a house on the holding. He carries on a business of processing and retailing milk and fruit juices on the holding, and has done so for some considerable time. It is that business that led to the County Council seeking possession of the holding.[7]Pollards Farm was originally let by the County Council to the Defendant, to whom I shall refer as Mr Taylor, by a written agreement dated 19 October 1962 on, essentially, a tenancy from year to year. The area of Pollards Farm has changed from time to time and the changes have been the subject of further written agreements (made in 1982 and 1985).[8]Mr Taylor’s tenancy came within the Agricultural Holdings Act 1948 and, more recently, the1986 Act. By clauses 4(13), 4(20) and 4(21) of his tenancy agreement he agreed to use the holding primarily as a dairy and mixed holding, not to engage in any trade or business other than agriculture, and not to use the holding otherwise than for agriculture.[9]In February 1990, the County Council alleged that Mr Taylor was committing breaches of his tenancy by bringing on to the holding, processing and retailing milk and fruit juices that had not been produced on the holding. It required him to terminate his breaches. On 4 May 1990, the County Council served on him a notice to remedy his breaches of the tenancy within 8 months. It was in the prescribed Form 3 served pursuant to Case D in Part I of Schedule 3 to the 1986 Act, not being a notice requiring him to do any work of repair, maintenance or replacement.[10]In May 1990, a Mr Mair, a land agent acting for Mr Taylor, sought advice from a Mr Densham of solicitors Burges Salmon. Mr Densham advised by letter dated 4 June 1990 that the activities complained of by the County Council were not a breach of the tenancy agreement. However, he pointed out that the issue as to whether Mr Taylor was in breach could not be referred to arbitration following the notice to remedy. He advised that Mr Taylor should not run the risk of taking no action, but instead should immediately apply to the Court for a declaration that he was not in breach of the tenancy agreement.[11]In the event, Mr Taylor did not bring proceedings for a declaration. He continued to carry on the business complained of by the County Council. On 13January 1994, the County Council served a further notice to remedy giving Mr Taylor 12 months to terminate his breaches. On 27 October 1994, it served a third notice to remedy specifying a period of 3 months for remedy. On 2November 1994, the County Council gave Mr Taylor a fourth notice to remedy giving Mr Taylor 12 months to remedy the breaches.[12]The County Council served notices to quit based on each of its 1994 notices to remedy. The last was served on 16 January 1996, based on the last notice to remedy, to take effect on 2February 1997.[13]Mr Taylor applied for statutory arbitration under the 1986 Act in relation to each of the notices to quit. An Arbitrator was duly appointed. Mr Taylor contended, among other things, that the Council had agreed to his activities that they alleged were breaches of his tenancy and were estopped from relying on them to terminate his tenancy. The Arbitrator’s award dated 10 March 1998 determined that the last notice to remedy was valid (but that the earlier notices were not), that Mr Taylor was in breach of the terms of his tenancy, that he had failed to remedy his breaches within the time given by the last notice to remedy, and that the ground stated in the last Notice to Quit was validly stated, with the result that it should take effect.[14]Mr Taylor unsuccessfully challenged the Award in the County Court. HH Judge Gee gave judgment on 10 September 1999 dismissing his claims. Mr Taylor appealed to the Court of Appeal. He did not allege any breach of his Convention rights. His appeal was heard after the 1998 Act came into force on 2 October 2000 and was dismissed on 9 February 2001. On 25 July 2001, the House of Lords dismissed Mr Taylor's petition for leave to appeal from the decision of the Court of Appeal.[15]In January 2000, the County Council began the present proceedings for possession of the holding. It alleged that, as determined by the arbitrator, it had served a valid Notice to Quit on Mr Taylor terminating his tenancy. Mr Taylor defended the possession proceedings on two separate grounds.[16]The first concerned the powers of the Arbitrator to postpone the operation of the Notice to Quit. This defence, if successful, would merely have postponed the County Council’s right to possession until a date that has now passed. It is therefore academic. It has been agreed between the County Council and Mr Taylor that this defence need no longer be addressed.[17]The second ground raises the issues I have to decide under the 1998 Act.

The Agricultural Holdings Legislation

[18]There had been legislation conferring a measure of security of tenure for tenant farmers before the Second World War, but for present purposes it is sufficient to begin with the Agricultural Holdings Act 1948, which consolidated provisions of the Agriculture Act 1947 and earlier legislation. Those Acts were passed at a time of general food shortages, and it is evident from their provisions that their general object was to encourage good husbandry and thereby to increase food production and, by granting substantial security of tenure (among other measures), to enable tenant farmers to take a longer-term approach to investment in their farming businesses. The 1948 Act specified the circumstances in which the landlord of an agricultural holding could terminate a tenancy of the holding. These included the failure by the tenant to comply with a notice served by his landlord requiring him to remedy a remediable breach by the tenant of the terms of his tenancy, provided that the term in question was not inconsistent with the fulfilment by the tenant of his responsibilities to farm in accordance with the rules of good husbandry. No distinction was made in the 1948 Act between a breach the remedy of which involved the carrying out of work and other remediable breaches.[19]The 1948 Act was amended by the Agriculture (Miscellaneous Provisions) Act 1963. It introduced the distinction between a statutory notice given by a landlord to the tenant of a holding requiring him to do “any work of repair, maintenance or replacement” in order to remedy a breach of his tenancy agreement and a notice to remedy which did not contain that requirement. Section 19 conferred power on the Lord Chancellor by order to provide for the determination of any question arising under the first kind of notice. He was also empowered to provide for the extension of the time stipulated by any statutory notice to remedy a breach.[20]Mr Christopher Soames MP, Minister of Agriculture, Fisheries and Food, presenter of the Bill, said on 21 November 1962 in the House of Commons:
“Clause 17 will help a tenant to know where he stands with any alleged breach of his tenancy agreement which might form the basis for a notice to quit. The broad effect is to prevent a landlord from exploiting loopholes in the present legislation and thus using it, not for its intended purpose of getting repairs done, but as a means of bringing about the eviction of his tenant. The proposals have the agreement and, indeed, support, of both the Country Landowners’ Association and the National Farmers’ Union.”
Clause 17 of the Bill became section 19 of the 1963 Act.[21]It appears from the debates on the Bill that a number of tenants had been served with notices to remedy requiring a large number of items of work to be done. Mr John Morris MP responded to the introduction of the Bill, stating:
“I welcome the amendment in Clause 17 to section 24 of the 1948 Act. I have some experience of the working of this provision, and I have found that, in practice, it has frequently imposed great hardship when notice has been served on a tenant to remedy breaches of the terms and conditions of his tenancy. A notice is served, containing a schedule of fifty or sixty necessary matters to be remedied. The tenant is given a certain time in which to complete. The schedule may contain references to ditching, hedging and 101 other matters. At the end of the period an arbitration is held at which the arbitrator decides whether a tenant, having been given reasonable notice, has complied with the requirements of the notice. It may be that out of many breaches which require remedying one has been left undone. That is the hardship which has resulted from the operation of this provision to date.”
[22]During the Second Reading, Mr Percy Brown MP also welcomed the new provisions. He said:
“It is of interest to note that estate agents and agents generally did not discover the loophole until fairly recently, but, since they discovered it, they have made fairly wide use of it. As the hon. Gentleman said, one is written to, time and again, by tenants who say that they have been asked to remedy a list of breaches, and the time given is hopelessly inadequate. Now, a tenant will have the opportunity to test the right of the landlord to ask him to remedy the breaches before he even starts to do so….”
Similar statements were made in the House of Commons Standing Committee.[23]Further amendment to the law was made by the Agriculture (Miscellaneous Provisions) Act 1976. On the Second Reading, on 1 December 1975, Mr Fred Peart, Minister of Agriculture, Fisheries and Food, said:
“Clauses 11 and 12 introduce important changes in the agricultural holdings legislation. They will give increased security of tenure for the tenants of agricultural holdings. Complaints have been received from time to time of the harassment of tenants by agricultural landlords. Parliament took action in the Agriculture (Miscellaneous Provisions) Act 1963, in response to earlier complaints but those provisions did not go far enough. The recent complaints, which came mainly from South East Wales although there have been isolated cases in England as well, had a striking similarity to the earlier cases. It was alleged that some agricultural landlords were serving their tenants with notices to do work of repair, maintenance or replacement which were unreasonably long or required unnecessarily expensive work. As a result the tenants, it was said, were forced to spend an undue proportion of their time and money in carrying out the work demanded of them. The significance of the “notice to do work” procedure is that failure to complete the work in the time specified could lead eventually to the tenant having to quit the holding. My department consulted the NFU, the Country Landowners’ Association and interested professional organisations about the complaints. It became clear from the consultations that the “notice to do work” and “notice to quit” provisions were weighted too heavily against tenants in two respects. First, arbitrators, before whom the tenants could challenge the items of work to be done and the time specified, were not allowed sufficient professional discretion. They could not delete or amend items which, though technically the tenant’s responsibility, were unnecessary or unjustified in the interests of good husbandry or sound estate management. Clause 11 therefore enables the Lord Chancellor by order to empower an arbitrator to delete any such items from a notice to do work, or to substitute a different method of work or materials for those specified in the notice. Secondly, despite the seriousness of the penalty for non-compliance with a notice to do work, the tenant cannot contest the subsequent notice to quit before the Agricultural Land Tribunal. Clause 12 enables a tenant served with a notice to quit for failing to comply with a notice to do work to serve a counter-notice on his landlord. The counter-notice will render the notice to quit inoperative unless the Agricultural Land Tribunal consents to its operation. If the landlord wishes to persist with the notice to quit, therefore, he will have to apply to the Agricultural Land Tribunal. The tribunal must consent to the operation of the notice to quit unless in all circumstances it appears to it that a fair and reasonable landlord would not insist on possession. The fair and reasonable landlord test is, of course, one of the most important safeguards for tenants against unfair landlords under the agricultural holdings legislation. I would emphasise that harassment is not a widespread problem in England and Wales – far from it. But no one would condone harassment, and even one case of a tenant being forced or frightened out of his tenancy is one case too many.”
[24]On the Second Reading, Mr Caerwyn E. Roderick MP said:
“I welcome Clauses 11 and 12 of the Bill in that they go some way towards giving some protection to tenants. In my area landlords wishing to be rid of tenants have secured notices requiring a multitude of repairs to be carried out that are quite beyond the powers and resources of ordinary tenants to fulfil in the agreed time.”
[25]Mr Gavin Strang, Parliamentary Secretary to the Ministry of Agriculture, Fisheries and Food, said, on the same occasion:
“I move to the clauses dealing with harassment, which, not surprisingly, have aroused a great deal of comment from both sides of the House. My hon. Friend the Member for Brecon and Radnor has been a very active and energetic campaigner in all these landlord-and-tenant matters, and I am glad to have his support for these measures… …We face a situation in which a number of landlords in England and Wales, mainly isolated cases, appear to have been misusing the law to force their tenants off their holdings. The tenants have complained that their landlords have made unfair and unreasonable use of the statutory procedures relating to the carrying out of work of maintenance, repair or replacement. This must be stopped. …Let me pick up one point that has been made about Clause 12. It is true that harassment, when it occurs, has been taking place through misuse or abuse of the notice to do work procedure…”
[26]In the House of Commons Standing Committee, Mr Strang stated, on 10 February 1976 (Commons StandingCommittees Official Report for the 1975-6 Session Standing Committee C, Vol. III, cols. 526-527): [Responding to a suggestion that the right of a recipient of a non-work notice should enjoy the same right of access to arbitration at that stage as a recipient of a work notice has under the 1963 Act:] “As regards the suggestion that the [non-work] notice to remedy should be referred to arbitration at the first stage, I can only say that this Bill is not intended as a vehicle for general amendment to the Agriculture Holdings Act. There is good reason why a notice to do work should be referred to arbitration. Time and money are involved, and it is right that disputes should be determined before time and money are spent, not afterwards. The breaches to which a notice to remedy applies are of a different order from breaches to which a notice to do work applies. The most usual are failures to pay rent and failure to live in the farmhouse. There is not the same need for these to be referred to arbitration, therefore, and I have had no such request from either side of the industry.”[27]On 17 February 1976 in the House of Commons, Standing Committee Mr Strang made the following statement (Commons Standing Committee Official Report for the 1975-6 Session Standing Committee C, Vol. III, col. 636): [In the Committee debate on Clause 11, which provided a power for arbitrators to modify notices to do work:] “The professional bodies consulted were the RICS, CAAV, and ISVA. Four of the representatives who attended the discussions were members of the Lord Chancellor’s panel of arbitrators and had been appointed by the Minister as arbitrators of a number of occasions. They had encountered harassment of tenants, though not on a wide scale, and they had confirmed that the most usual method was by unreasonably long lists of work, the inclusion of expensive items, and the insistence on methods of husbandry which were no longer the custom of the district, for example the cutting and laying of hedges. These views, coming as they did from people of standing in their profession, were particularly illuminating. The conclusions to be drawn from the information available to the Ministry and the discussions that had taken place with the representatives of the industry and the professional bodies were that it was certainly possible for harassment to take place in the manner alleged because the safeguards for the tenant did not go far enough.”[28]On 19 February 1976, Mr Strang said to the Standing Committee; “Might I briefly go over the background to this legislation? Tenants have long complained of unreasonably long lists of work numbering 386 items, 321 items, 182 items – I could continue. Others were described in more general terms, one description being “a massive list”. Tenants have also complained that some of the items, though legally their responsibility, were either frivolous, unnecessary or unjustified, and some that the requirements entailed unnecessarily heavy expenditure. Others have alleged that their landlords, while compelling their tenants to do the work, had failed to carry out their own obligations as regards the maintenance, replacement or repair of items which were their legal responsibility. All complaints alleged the misuse by landlords of the notice to do work procedure”[29]The legislation relating to agricultural holdings was consolidated in the Agricultural Holdings Act 1986. It distinguishes between two different kinds of Notice to Quit. The first is provided for by section 26(1) and is a notice that does not rely on one of the Cases in Part I of Schedule 3 to the 1986 Act. If a landlord serves such a Notice to Quit and the tenant serves a counter-notice, the Notice to Quit is of no effect unless the landlord applies to the Agricultural Land Tribunal for its consent to the operation of the Notice to Quit. The Tribunal has jurisdiction to give such consent if any one of six specified grounds is established. However, by section 27(2) even if such a ground is established, the Tribunal must withhold consent to the operation of the Notice to Quit if in all the circumstances it appears to it that a fair and reasonable landlord would not insist on possession.[30]The second class of Notice to Quit is the subject of section 26(2), and relies on a Case in Part I of Schedule 3 to the 1986 Act. Where such a Notice to Quit is served, in general, the landlord need not obtain the consent of the Agricultural Land Tribunal. The notices to quit served on Mr Taylor were served under Case D: “At the date of the giving of the notice to quit the tenant had failed to comply with a notice in writing served on him by the landlord, being either—(a) a notice requiring him within two months from the service of the notice to pay any rent due in respect of the agricultural holding to which the notice to quit relates, or(b) a notice requiring him within a reasonable period specified in the notice to remedy any breach by the tenant that was capable of being remedied of any term or condition of his tenancy which was not inconsistent with his responsibilities to farm in accordance with the rules of good husbandry, and it is stated in the notice to quit that it is given by reason of the said matter.” (a) a notice requiring him within two months from the service of the notice to pay any rent due in respect of the agricultural holding to which the notice to quit relates, or (b) a notice requiring him within a reasonable period specified in the notice to remedy any breach by the tenant that was capable of being remedied of any term or condition of his tenancy which was not inconsistent with his responsibilities to farm in accordance with the rules of good husbandry,[31]Section 29 empowers the Lord Chancellor by order to provide for any of the matters specified in Schedule 4. So far as is relevant, it is as follows: “Matters for which provision may be made by Order under Section 29 1. Requiring any question arising under the provisions of section 26(2) of, and Schedule 3 to, this Act to be determined by arbitration under this Act. 2. Limiting the time within which any such arbitration may be required or within which an arbitrator may be appointed by agreement between the parties, or (in default of such agreement) an application may be made under paragraph 1 of Schedule 11 to this Act for the appointment of an arbitrator, for the purposes of any such arbitration. … 4. Suspending the operation of notices to quit until the expiry of any time fixed in pursuance of paragraph 2 above for the making of any such appointment by agreement or application as is there mentioned or, where any such appointment or application has been duly made, until the termination of any such arbitration. … 8. The determination by arbitration under this Act of any question arising under such a notice as is mentioned in paragraph (b) of Case D, being a notice requiring the doing of any work of repair, maintenance or replacement (including the question whether the notice is capable of having effect for the purposes of that Case). 9. Enabling the arbitrator, on an arbitration under this Act relating to such a notice as is mentioned in paragraph 8 above, to modify the notice—(a) by deleting any item or part of an item of work specified in the notice as to which, having due regard to the interests of good husbandry as respects the agricultural holding to which the notice relates and of sound management of the estate of which that holding forms part or which that holding constitutes, the arbitrator is satisfied that it is unnecessary or unjustified, or(b) by substituting, in the case of any item or part of an item of work so specified, a different method or material for the method or material which the notice would otherwise require to be followed or used where, having regard to the purpose which that item or part is intended to achieve, the arbitrator is satisfied that— (i) the last-mentioned method or material would involve undue difficulty or expense, (ii) the first-mentioned method or material would be substantially as effective for the purpose, and (iii) in all the circumstances the substitution is justified. 10. Enabling the time within which anything is to be done in pursuance of such a notice as is mentioned in paragraph (b) of Case D to be extended or to be treated as having been extended. … 13. The recovery by a tenant of the cost of any work which is done by him in compliance with a notice requiring him to do it, but which is found by arbitration under this Act to be work which he was not under an obligation to do.” (a) by deleting any item or part of an item of work specified in the notice as to which, having due regard to the interests of good husbandry as respects the agricultural holding to which the notice relates and of sound management of the estate of which that holding forms part or which that holding constitutes, the arbitrator is satisfied that it is unnecessary or unjustified, or (b) by substituting, in the case of any item or part of an item of work so specified, a different method or material for the method or material which the notice would otherwise require to be followed or used where, having regard to the purpose which that item or part is intended to achieve, the arbitrator is satisfied that— (i) the last-mentioned method or material would involve undue difficulty or expense, (ii) the first-mentioned method or material would be substantially as effective for the purpose, and (iii) in all the circumstances the substitution is justified.[32]The Agricultural Holdings (Forms of Notice to Pay Rent or to Remedy) Regulations 1987 prescribe the forms to be used by landlords for the purposes of Case D. A notice to remedy requiring work of repair, maintenance or replacement must be in Form 2; a notice to remedy other breaches (other than non-payment of rent) must be in Form 3.[33]By the Agricultural Holdings (Arbitration on Notices) Order 1987 (“the Arbitration Order”), the Lord Chancellor exercised the powers conferred on him by section 29 and Schedule 4 (among others). The Order defines “notices to do work” as “a notice to remedy which requires the doing of any work of repair, maintenance or replacement”. Article 3 of the Order is as follows:
“3. (1) Where a tenant on whom a notice to do work has been served wishes to have determined by arbitration under the 1986 Act any of the following questions, namely- (a) his liability under the terms or conditions of his tenancy to do any of the work specified in the notice, (b) the deletion from the notice of any item or part of an item of work on the ground that it is unnecessary or unjustified, or (c) the substitution, in the case of any item or part of an item of work, of a different method or material for the method or material which the notice would otherwise require to be followed or used, he shall do so by service of a notice requiring the question or questions to be determined by arbitration under the 1986 Act. (2) A notice under paragraph (1) above shall be in writing, and shall be served on the landlord within one month after the service on the tenant of the notice to do work. (3) A notice under paragraph (1) above shall specify, as the cases may be- (a) any items in respect of which the tenant denies liability, (b) any items or part of items which the tenant claims to be unnecessary or unjustified, and (c) any method or material in respect of which the tenant desires a substitution to be made.” (a) his liability under the terms or conditions of his tenancy to do any of the work specified in the notice, (b) the deletion from the notice of any item or part of an item of work on the ground that it is unnecessary or unjustified, or (c) the substitution, in the case of any item or part of an item of work, of a different method or material for the method or material which the notice would otherwise require to be followed or used, (a) any items in respect of which the tenant denies liability, (b) any items or part of items which the tenant claims to be unnecessary or unjustified, and (c) any method or material in respect of which the tenant desires a substitution to be made.”
[34]Article 5 empowers an arbitrator to modify a notice to do work by deleting any item or part of an item of work specified in the notice or by substituting a different method or material for that required by the notice. Article 6 extends the time specified for doing the work which is the subject of the arbitration until the termination of the arbitration, and confers power on the arbitrator, if he finds that the tenant is liable to comply with a notice to do work or any part of it, to extend the time for doing that work by such further period as he thinks fit.[35]There are no provisions equivalent to articles 3 to 6 applicable to other Case D notices to remedy. Article 9 is as follows:
“9. Where it is stated in a notice to quit an agricultural holding or part thereof that notice is given for one or more reasons specified in Case A, B, D or E and the tenant wishes to contest any question arising under the provisions of section 26(2) of, and schedule 3 to, the 1986 Act relating to any reasons so stated, he shall within one month after service of the notice serve on the landlord notice in writing requiring the question to be determined by arbitration under the 1986 Act.”
[36]The operation of a notice to quit is suspended during an arbitration under article 9 until the termination of the arbitration. Where in consequence of an arbitration under article 9, a notice to quit has effect and would otherwise come into operation on or within 6 months after termination of the arbitration, the arbitrator may postpone the termination of the tenancy for a period not exceeding 12 months: article 13. In such an arbitration, the arbitrator has limited powers to extend the time provided by a notice to quit to remedy a non-work breach. Article 14 confers power on the arbitrator to extend time if it appears to him that “notwithstanding that the time originally specified or extended was reasonable, it would, in consequence of anything happening before the expiration of that time, have been unreasonable to require the tenant to remedy the breach within that time”.[37]The result of these provisions is that where a tenant is in breach of his tenancy agreement and the landlord serves a valid notice to remedy giving the tenant a reasonable time within which to remedy the breach and the tenant fails to do so, the landlord is entitled to serve a Notice to Quit relying on that failure and such Notice to Quit will be effective to terminate the tenancy in due course.[38]There is a further difference between a case involving a notice to do work, and a case involving another class of notice to remedy, which is created by section 28 of the 1986 Act. Section 28 entitles a tenant on whom has been served a valid Notice to Quit based on his failure to comply with a notice to remedy requiring him to do the work to serve a counter-notice requiring the landlord to obtain the consent of the Agricultural Land Tribunal (“the Tribunal”) to the operation of the Notice to Quit. By section 28(5), the Tribunal must consent to the operation of the Notice to Quit unless it appears to it, having regard to the extent of failure to comply, the consequences of the failure to comply, and the circumstances surrounding any such failure, that a fair and reasonable landlord would not insist on possession.[39]The Agricultural Tenancies Act has drastically reduced security of tenure for tenancies beginning on or after 1 September 1995 (with certain exceptions).

Mr Taylor’s case

[40]It can be seen that the position of a tenant who is served with a notice to remedy requiring him to do work is very different, and far stronger, than that of a tenant who is served with a non-work notice to remedy. The latter cannot refer any dispute to statutory arbitration until he has been served with a notice to quit. He cannot before he is served with a notice to quit determine by arbitration whether the landlord’s contentions are well-founded. If he takes the view that they are not, and the arbitrator appointed after service of a notice to quit finds against him, the notice to quit takes effect and the landlord may recover possession. On the other hand, the tenant farmer who receives a notice in Form 2 may have the extent of his obligation to do work determined by arbitration as soon as a notice to remedy is served, and the time for doing work is extended until the termination of the arbitration. The arbitrator has power to modify the notice to remedy and to extend time for compliance, so that if the tenant has failed in the arbitration he may have a further opportunity to comply with the notice to remedy. Lastly, the tenant may object to the landlord obtaining possession before the Tribunal, on the ground that a fair and reasonable landlord would not insist on retaking possession.[41]Thus, a tenant who is served with a notice in Form 3 which he considers unfounded and with which he does not comply is said on behalf of Mr Taylor to have to “gamble” with his tenancy, taking a chance that an arbitrator appointed after service of a notice to quit will uphold his case.[42]A tenant who is served with a Form 2 “notice to do work” may avoid that gamble by referring his notice to remedy to arbitration before carrying out any of the work required by the landlord. If, after the arbitrator’s award a notice to quit is served, the tenant may again go to arbitration. Moreover, as set out above, recipients of a notice to quit by reason of non-compliance with a Form 2 “notice to do work” have the right to require the landlord to seek the consent of the Tribunal to the operation of the notice to quit in any event.[43]Mr Taylor contends that his inability to refer to arbitration his dispute as to the validity of the notices to remedy served on him infringed his rights under Article 6, and that he was deprived of access to a court for the determination of that dispute until a notice to quit was served on him. He contends that the differences between his rights and the powers of the arbitrator appointed after service of the notice to quit and the rights of a tenant served with a notice to remedy requiring works to be done and the powers of an arbitrator in such a case constitute a breach of Article 14 read with Article 6; and that the service of the notice to quit infringed his right under Article 8 to respect for his home and his rights to peaceful enjoyment of his possessions under Article 1 of the First Protocol (“A1P1”), and further infringed his rights under Article 14 read with those Articles. He contends that his business carried on on the holding is a possession protected by A1P1. Although all of the relevant acts of the County Council took place before the coming into force of the 1998 Act, he contends that he is entitled to rely on the County Council’s infringements of his Convention Rights by virtue of section 22(4) of that Act, and in the face of the County Council’s assertion that it is an abuse of the process for him to raise these issues, on the basis that they could and should have been raised before the Court of Appeal in 2001, he asserts that he could not have relied upon his Convention rights in those proceedings because he, and not the County Council, instituted the arbitration proceedings which were the subject of the appeal to the Court of Appeal.[44]Both the County Council and the Secretary of State dispute Mr Taylor’s allegations of breach of his Convention rights. I shall address the particular issues raised below. In addition, the County Council submits that if it did act in a way that is incompatible with a Convention right of Mr Taylor, its acts were not unlawful by reason of section 6(2)(b). Discussion Article 6: was Mr Taylor deprived of access to a court prior to service of a notice to quit?

Discussion

[45]Case D has no application unless and until a notice to quit is served. Section 26(2) of the 1986 Act does no more than refer to the Cases in Schedule 3. It follows that paragraph 1 of Schedule 4 to the 1986 Act could not confer power on the Lord Chancellor to require arbitration of any question arising under a non-work notice to remedy before service of a notice to quit. Article 9 of the Arbitration Order cannot apply where there has not been a notice to quit: see the opening words.[46]There is therefore nothing in the 1986 Act affecting the right of access to the ordinary courts before service of a notice to quit. Furthermore, it is a well-established principle of English Law that recourse to the courts cannot be excluded by legislation except by clear words. There are no such words in the 1986 Act. Miss Moss relied on the wording of note 1 to the statutory notice to remedy required to be served on the tenant in non-work Case D case:
“You cannot at this stage refer to arbitration either your liability to comply with this Notice to remedy or any other question as to the validity of the Notice. You will, however, be entitled to do so later if a notice to quit is served on you on the ground that you have failed to comply with this Notice to remedy. That is the only opportunity you will have to challenge this Notice.”
The last sentence is an over-statement that is not justified by the 1986 Act and cannot affect the right of a tenant to bring proceedings in court before a notice to quit is served.[47]I have no doubt, therefore, that when served with any of the notices to remedy his breaches of his tenancy agreement Mr Taylor could have applied to the court for a declaration that the County Council was not entitled to rely on the breach asserted by it, or that the breach alleged was not in law a breach of his agreement, or to raise any other issue arising under the notice in question. My conclusion is in agreement with that of HH Judge Weeks QC sitting as a Judge of the Chancery Division of the High Court in Vaughan v Radcliffe and Pullin, an unreported judgment given in Bristol on 11 March 1998.[48]Whether the Court would have determined any question raised by Mr Taylor in due time was never tested; indeed, we do not know what issues he would have raised. Where necessary, the Court can order trials and give judgment speedily and it not to be assumed that an effective declaration would not have been made. However, the clear answer to this issue is that Mr Taylor did have the right of recourse to the courts in relation to any question arising between him and the County Council at any time until service of the notice to quit. Following service of a notice to quit, however, any dispute concerning its effect was required to be referred to arbitration by article 9 of the Arbitration Order.[49]Mr Taylor does not dispute that an arbitrator in a statutory arbitration pursuant to the Agricultural Holdings Act fulfils the requirements of a court for the purposes of Article 6. It follows that Mr Taylor had at all relevant times access to a court for the determination of his civil rights and obligations, and therefore that there has been no infringement of his Article 6 Convention rights.[50]On analysis, Mr Taylor’s complaint is, as Miss Moss I think accepted, not that his rights under Article 6 were infringed, but that the difference between the jurisdiction and powers of arbitrators where a landlord serves a non-work notice to remedy and notice to quit and where the notice requires the doing of work constitutes unlawful discrimination and infringes Article 14 read with Article 6.

Article 14 taken with Article 6

[51]I must first consider whether any Article 6 right is engaged, and if not whether the matters complained of are within the ambit of Article 6 so as to engage Article 14. The expression “within the ambit of” another Article of the Convention is derived from the judgments of the European Court of Human Rights in a number of cases, including in particular Gaygusuz v Austria (1996) 23 EHRR 3654 at paragraph 36. Gaygusuz was referred to (disapprovingly) by Laws LJ (with whom the other members of the Court of Appeal agreed) in R (Carson) v Secretary of State for Work and Pensions [2003] EWCA Civ 797 at [39] to [41].[52]It is well established that Article 6 is concerned with procedure, and not with the substantive law applied by the court. In other words, it is concerned with the procedures for determining civil rights and obligations. (The determination of criminal charges is irrelevant for present purposes.) The content of civil rights and obligations themselves is determined by substantive law, and may be the subject of other provisions of the Convention, but not Article 6: see Matthews v Ministry of Defence [2003] 1 AC 1163.[53]The distinction between procedure and substance may be elusive and difficult to draw, as the difference in judicial views in Matthews itself illustrates. But the matters to which Mr Taylor refers and of which he complains are matters of substance rather than procedure. True it is that his complaints relate to the powers (or rather lack of them) of the court (before service of a notice to quit) and the arbitrator (after its service) and his inability to refer his case to the Tribunal. But the powers available to the arbitrator and the Tribunal following service of a notice to remedy requiring work and a notice to quit based on it affect property rights. For the most part, they postpone the operation of a notice to quit or prevent a notice to quit from having effect. In so doing, they extend the duration of a tenancy. The security of tenure conferred by the 1986 Act is a matter of substance, not procedure.[54]Article 14 is directed primarily at the enjoyment of other, free-standing, Convention rights. In R (Carson and Reynolds) v Secretary of State for Work and Pensions [2003] EWCA 797, Laws LJ, giving the judgment of the Court of Appeal, said at [25]:
“It is common ground that Article 14 confers no free-standing right, independent of the other substantive Convention provisions. It requires only that the rights guaranteed by those provisions be enjoyed without discrimination of the kinds stated in the Article. It may be violated though there is no violation of the substantive right (otherwise, of course, it would be otiose, or at best a rule of interpretation of the substantive rights). What has to be shown is that the act complained of (a) falls within the "ambit" of a substantive Convention right, (b) involves discrimination against the complainant on a prohibited ground, which (c) is not objectively justified. All this is elementary and I will not take time citing authority to support it. ….”
That broad statement of the law was not challenged by any party before me.[55]If I am right that the rights that Mr Taylor complains he did not have were substantive and not procedural, his complaint is neither within Article 6 nor within the ambit of that Article. Article 14 cannot apply to extend the ambit of Article 6 beyond the procedural to the substantive.[56]I therefore reject Mr Taylor’s claim that there has been any infringement of Article 14 read with Article 6. But as will be seen, if it did apply, I would reject it on other grounds also.

Article 1 of the First Protocol

[57]If the rights conferred on a tenant served with a notice to remedy requiring work to be done, and an ensuing notice to quit, are substantive rather than procedural, they are the subject of A1P1. Mr Taylor’s rights under his tenancy agreement are similarly clearly “possessions” for the purpose of A1P1. But his possession is delimited by his tenancy. His “possession” is not the house he occupies, nor the holding as such, but his tenancy. A1P1 confers on him no greater right than that defined by domestic law: see Carson at first instance [2002] EWHC 978 (Admin) at [47] and in the Court of Appeal at [18] to [23]; Money Markets Ltd v London Stock Exchange [2002] 1 WLR 1150 at [141] and [142]. The determination of his tenancy by notice to quit means that as against the County Council Mr Taylor has no relevant possession to be protected under A1P1. He is therefore not being “deprived” of any possession by the present proceedings. He was similarly not so deprived by the operation of a notice to quit that lawfully determined his limited interest – i.e., his tenancy. His tenancy was always subject to being so determined.[58]The same applies to Mr Taylor’s business. Doubtless its goodwill is a “possession”, but if it is restricted to the land occupied by virtue of his tenancy, it is subject to the same limits as his tenancy. He has no right to carry on his business on the Farm following the termination of his tenancy.[59]The matter is even more obvious when considered from the point of view of the County Council. It has a freehold that under domestic law in specified circumstances entitles them to retake possession of the holding. To prevent its recovering possession would be to deprive it of the peaceful enjoyment of that possession. True it is that as a public authority the County Council has no rights under the Convention. But this consideration is nonetheless relevant when considering the nature and extent of its tenants’ “possessions” protected by A1P1. Mr Taylor’s possessions cannot be any different or greater than those of a tenant of a private landlord holding under an identical tenancy agreement.[60]It follows that, as Miss Moss virtually conceded, neither the service of a notice to quit by the County Council nor the present proceedings infringe any right of Mr Taylor under A1P1.

Article 14 read with A1P1

[61]Mr Taylor argues that substantive rights are very different from, and less than, those tenants who are served with a notice to remedy requiring work to be done and who are then served with a notice to quit; there is no justification for the difference; and therefore his rights under Article 14 read with A1P1 have been infringed.[62]It is common ground that Article 14 is concerned with a difference between the rights enjoyed by different groups of individuals. Provided the difference is as to “the enjoyment of the rights and freedoms set forth in this Convention”, if the difference between those groups is of a kind prohibited by Article 14, it must be justified by the State; if not so justified, there is a breach of Article 14. I was reminded of the approach suggested by Brooke LJ in Michalak v London Borough of Wandsworth [2002] EWCA Civ 27, [2003] 1 WLR 617 at [20].[63]In my judgment, Mr Taylor case falls at every point. From the inception of his tenancy and at all times thereafter until its termination his rights have always been the same as those of every other tenant of an agricultural holding. Thus his and their rights under A1P1 have always been identical. They always had the same security of tenure. The difference between his rights and those of a tenant served with a notice to remedy requiring work arises from the nature of the breach alleged by the landlord (and committed by him). Every other tenant of a holding would have the same rights if served with a similar notice. Even a tenant served with a Form 2 notice (the comparable relied upon by Mr Taylor) would have the same rights as Mr Taylor in relation to a Form 3 notice served on him. There is no difference between their substantive rights.[64]The position may be seen more easily if we take the situation of a tenant from year to year who has no security of tenure. If his landlord serves a notice to quit, his rights are very different from those of another such tenant who does not receive such a notice: his tenancy will come to an end on the expiration of the notice, whereas the tenancy of the tenant who has not received a notice will continue. But the first tenant has not been deprived of any possession: his possession was always subject to termination by notice to quit. So is the possession of the second tenant, and it remains so subject.[65]Furthermore, it is not every difference in the enjoyment of Convention rights that is subject to Article 14. The difference must be grounded on a personal difference: “on any ground such as sex, race, colour, language, … or other status”: see Southwark LBC v St Brice [2001] EWCA Civ 1138, [2002] 1 WLR 1537, per Kennedy LJ (with whom the other members of the Court of Appeal agreed) at [24]. To apply it where there is no such ground for the difference complained of is to ignore that part of the Article. I entirely agree, therefore, with the judgment of Newman J on this point in Secretary of State for Defence v Hopkins [2004] EWHC 299 (Admin).[66]I do not think that the application of Article 14 is necessarily excluded where the ground of discrimination relied upon arises from the voluntary act of a person seeking to rely on it. If, for example, a tenancy agreement entitled a public authority to obtain possession in the event that the tenant converted to a specified religion, the tenant’s conversion to that religion would be his voluntary act, but Article 14 would nonetheless be engaged. In such a case, the relevant term of the tenancy agreement is concerned with a matter of personal status. But in the present case neither the term of Mr Taylor’s tenancy alleged to have been broken by him nor the breach alleged by his landlord has any connection with any matter of personal status. The difference between a breach the remedy of which requires work to be done and one that does not is wholly outside Article 14. It is impossible to view the action of the County Council in enforcing its rights under Mr Taylor’s tenancy agreement to secure his compliance with the terms of the agreement or to obtain possession in the event of his failure to do so as a form of discrimination to which Article 14 applies.[67]In Aston Cantlow PCC v Wallbank [2003] UKHL 37, [2003] 3 WLR 283, Lord Hope of Craighead said, at [72]:
“The peaceful enjoyment of land involves the discharge of burdens which are attached to it as well as the enjoyment of its rights and privileges. I do not think that in this case the right which article 1 of the First Protocol guarantees, read alone or in conjunction with article 14 of the Convention, is being violated.”
There is no relevant difference between a burden attached to land and an obligation imposed on or accepted by the person enjoying its rights and remedies.[68]If I am wrong about the application of Article 14, in my judgment the difference between the rights of a tenant served with a Form 2 notice to remedy and those of a tenant served with a Form 3 notice are justified. For this purpose, the justification must be objective and reasonable: see, e.g., James v UK (1986) 8 EHRR 123 at paragraph 75.[69]The extracts from the proceedings of Parliament cited above show that the distinction between Form 2 cases and Form 3 cases was introduced in order to meet a perceived mischief, namely the abuse by some landlords of the right to serve a notice requiring a tenant to carry out work by serving a notice requiring very many items to be carried out at inordinate expense. Such notices were being served as a means of obtaining possession of the holding, rather than as a means of securing compliance with the terms of the tenancy or the protection of the freehold interest. The abuse was, it seems, confined to notices to do work: see the last sentence of the statement of Gavin Strang MP set out at paragraph [25] above and that at paragraph [28]. The extract cited at paragraph [26] shows that not only did the Government not perceive a need for other notices to remedy to be made subject to the same protection, but that no request from either side of the industry (i.e. farmers and landowners) had been received to do so.[70]In these circumstances, the changes introduced in relation to work notices to remedy were objectively justified and reasonable; and they were introduced in pursuit of a legitimate aim, i.e. to protect tenants from a form of abuse by landlords of their legal rights.[71]I find it difficult to envisage circumstances in which legislation introduced to address an identified mischief could be held to be incompatible with the Convention because it did not go further and meet a mischief for which there was no evidence. The function of the Court when considering whether discrimination under Article 14 is justified is a review function. It is Parliament that draws the line, not the Court. In Wilson v First County Trust Ltd (No. 2) [2003] 3 WLR 568, Lord Nicholls of Birkenhead said, at [69] to [70]:
“69 There must also be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The means chosen to cure the social mischief must be appropriate and not disproportionate in its adverse impact. Whether that relationship exists in the case of section 127(3) is the key issue. 70 In approaching this issue, as noted in R v Johnstone [2003] 1 WLR 1736, 1750, para 51, courts should have in mind that theirs is a reviewing role. Parliament is charged with the primary responsibility for deciding whether the means chosen to deal with a social problem are both necessary and appropriate. Assessment of the advantages and disadvantages of the various legislative alternatives is primarily a matter for Parliament. The possible existence of alternative solutions does not in itself render the contested legislation unjustified: see the Rent Act case of Mellacherv Austria (1989) 12 EHRR 391, 411, para 53. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person’s Convention right. The readiness of a court to depart from the views of the legislature depends upon the circumstances, one of which is the subject matter of the legislation. The more the legislation concerns matters of broad social policy, the less ready will be a court to intervene.”
The present case is concerned with “matters of broad social policy”. See too Mellacher v Austria at paragraph 45.[72]Miss Moss makes the point that what was perceived by the Governments of the day as an abuse by landlords of their rights was no more than their doing as the law entitled them to do. However, the object of an obligation to repair is the preservation of the value of the reversion. The right was being abused in being used as a means to obtain possession where there was no damage to the reversion. Furthermore, if, as Miss Moss suggests, the categorisation of landlords’ conduct as an abuse of their rights is political rather than legal, the Court must at least respect that political judgment.[73]Miss Moss is also right to say that the line between cases to which the extended protection conferred on recipients of a Form 2 notice to remedy applies and other cases of breach might have been drawn differently, and that logic might indicate that the line should be drawn differently. A tenant who receives a notice to pay rent due in Form 1 and is one day late in paying part of the rent may have his tenancy terminated by notice to quit. A tenant whose tenancy requires him to effect improvements may have his tenancy terminated by notice to quit if he does not substantially complete the stipulated improvements by the date provided in a valid notice to remedy. In such a case, the notice will be in Form 3, not in Form 2, since the work he is required to carry out is not work of repair, maintenance or replacement. In some such cases the loss by the tenant of his tenancy may be viewed as disproportionate or unfair. But that is not to say that the line drawn by the government is irrational or unjustified.[74]Covenants to repair have been the subject of special protection for tenants in other contexts: see the Leasehold Property (Repairs) Act 1938. In the case of agricultural holdings, the line was drawn to meet a specific mischief, and there was no evidence that other covenants were the subject of the same or a similar mischief. I would go further and say that I do not have before me any evidence of landlords abusing their rights under non-repairing covenants either at the time of the 1963 Act or the 1976 Act or since, and certainly no evidence of any systematic abuse. There have been cases in which the landlord’s right to possession has accrued in circumstances that might seem unfair to some (as in Parrish v Kinsey [1983] Est Gaz 68, a case of failure to pay rent), and the possibility of such cases is inherent in the legislation. But that is not the same as evidence of an abuse rendering the line drawn by the government in 1963 or 1976 irrational.[75]I find the requirement that any interference with certain Convention rights must be proportional difficult to apply in a case such as the present, where in A1P1 terms the right interfered with by the legislation under scrutiny is not that of the tenant but that of his landlord: c.f. James v UK. The normal requirement is that a measure must not be disproportionate in its adverse impact: see e.g. Lord Nicholls in Wilson v First County Trust at [69]. Mr Taylor’s complaint is that the interference with the property rights of his landlord did not go further, or (to put it conversely) that his property rights were not enhanced. No one has suggested that the reforms were disproportionate in the sense of constituting an excessive interference with the property rights of landlords.[76]Since the reforms did meet the social mischief with which the government was concerned, and there was no other pressing mischief, the Secretary of State has satisfied me that the reforms do meet the test of proportionality, even if tested from the viewpoint of a need to avoid Article 14 discrimination.[77]This aspect of Mr Taylor’s case gives rise to a further consideration. It does not follow from a conclusion that Parliament could not have drawn the line where it has (i.e., between work notices to remedy and other notices to remedy) that the line should be treated as having been drawn wider, so as to include all Form 3 cases. Parliament might have decided that if its interference with the rights of landlords had to be wider, it would not have been justified. If faced with incompatibility with the Convention, it might have withdrawn the additional security conferred on tenants served with Form 2 notices to remedy instead of extending it more widely.[78]Lastly under this head, I record that no objection was taken before me to the admissibility of the Parliamentary material to which I have referred.

Article 8

[79]The Article 8 right that Mr Taylor prays in aid is his right to respect for his home and his family life, which will be interfered with if he is compelled to quit the house on the holding.[80]In my judgment, the decision of the House of Lords in Harrow LBC v Qazi [2003] UKHL 43, [2003] 3 WLR 792 is a complete answer to Mr Taylor’s case on Article 8. Article 8 is concerned with rights to privacy. Article 8 does not prevent the eviction of an individual by the enforcement of the property rights of the owner of the land: see, e.g., the speech of Lord Millett at [108]. It is not concerned with property rights.

Article 14 read with Article 8

[81]Mr Taylor’s case is no better under Article 14 read with Article 8. It is outside the ambit of Article 8. If Article 14 were engaged, I should reach the same conclusions as set out above under the heading of Article 14 read with A1P1.

Conclusion on the European Convention on Human Rights

[82]For the reasons set out above, Mr Taylor has not established any breach of any Convention right of his.[83]If he had, he would not necessarily have a defence to the County Council’s claim for possession. If a Convention right of his has been infringed, it would be necessary to consider the effect of section 6(2)(b) of the 1998 Act. In view of my conclusions on infringement, it is unnecessary for me to consider that issue.[84]It is similarly unnecessary for me to address the pleas of the City Council of res judicata and abuse of process.

Conclusion

[85]In these circumstances, The County Council is entitled to possession. Mr Taylor’s counterclaim for damages and declarations will be dismissed.