Bracey v Read

[1962] 3 All ER 472

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Between: Bracey
And: Read

Court:

Judge: Cross J

Subject References:
Landlord and Tenant
Business premises
Premises
Tenancy of gallops for training racehorses
Whether gallops were "premises" within Landlord and Tenant Act, 1954 (2 & 3 Eliz 2 c 56), s 23(1)
Licence
Gallops for training racehorses
Agreement to let on lease the right to train racehorses
Whether tenancy or licence created

Case References:
Metropolitan Water Board v Paine - [1907] 1 KB 285; [1907] 76 LJKB 151; [1907] 96 LT 63; [1907] 71 JP 63; 43 Digest 1086, 198
Whitley v Stumbles - [1930] AC 544; [1930] 99 LJKB 518; [1930] 143 LT 441; 31 Digest (Repl) 632, 7411

Hearing date: 26, 27 July 1962
Judgment date: 30 July 1962

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By an agreement in writing made on or about 17 March 1957, between the plaintiff and the defendant, who was a trainer of racehorses, the plaintiff agreed to "let on lease to [the defendant] the right to train and exercise racehorses on the gallops" or downlands belonging to the plaintiff, subject to and with the benefit of a former licence to use the gallops for exercising horses for flat racing, so far as that licence was subsisting. The gallops varied in length from about three-quarters of a mile to a mile and a quarter, and in width from about fifteen to twenty yards; they crossed the downs in different directions and in different places with considerable areas of farmland between them. Though not separated by fences, they were physically quite distinct from the rest of the downland. The plaintiff crossed the gallops with farming implements whenever he wanted to get to his land on the other side. Under the agreement the defendant was responsible for keeping the gallops in good condition, and he had maintained the gallops in accordance with the agreement. During the currency of the agreement, by a notice which was adequate in length if the defendant were a licensee but which was not in the form required by the Landlord and Tenant Act, 1954, for the termination of tenancies to which Part 2 of that Act applied, the plaintiff purported to give to the defendant notice to give up his right to use the gallops on 31 December 1961.

Held-

(i) the agreement of 17 March 1957, created a tenancy, not a licence.

(ii) the gallops were premises within s 23(1) ^[F1] of the Landlord and Tenant Act, 1954;

accordingly, the tenancy was one to which Part 2 of the Act of 1954 applied and the notice was invalid.

Dictum of Viscount Hailsham in Whitley v Stumbles ([1930] AC at p 546) applied.

Notes

The etymology of the word "premises" in conveyancing usage was explained by Lord Goddard CJ in Gardiner v Sevenoaks Rural District Council ([1950] 2 All ER at p 85); cf 11 Halsbury's Laws (3rd Edn) 342, para 550, note (c). In different statutory contexts the word "premises" has been held to include an artificial cave (Gardiner's case, supra), a permanently moored house-boat (West Mersea Urban District Council v Fraser, [1950] 1 All ER 990 ) and a right of fishing when demised with a corporeal hereditament (Whitley v Stumbles, [1930] AC 544; cf p 476, letter g, post), but not to include, under the rent restriction legislation, ancillary incorporeal rights such as the right to use a garden in common with other persons (M & J S Properties Ltd v White, [1959] 2 All ER 81 ).

As to tenancies to which Part 2 of the Landlord and Tenant Act, 1954, applies, see 23 Halsbury's Laws (3rd Edn) 885, 886, para 1707; and for cases on the subject, see 3rd Digest Supp.

For the Landlord and Tenant Act, 1954, s 23(1), see 34 Halsbury's Statutes (2nd Edn) 408.

Action

This was an action commenced by writ dated 20 October 1961, by the plaintiff, James Dacre Vivian Bracey, against the defendant, Robert Read for

(1)

a declaration that the right to train and exercise racehorses on the land known as the gallops at Farncombe Down and one gallop at Crow Down, Lambourn in the county of Berks, conferred on the defendant by the plaintiff by an agreement in writing made in or about the months of February or March, 1957, was capable of being effectively determined by the giving of reasonable notice to that end by the plaintiff to the defendant and would have been so determined after 31 December 1961, by the notice dated 27 June 1961, and served by the agent of the plaintiff on the defendant;

(2)

a declaration that nothing in the said agreement created the relationship of landlord and tenant of the said land between the plaintiff and the defendant;

(3)

a declaration that the defendant was not entitled to the benefit of the Landlord and Tenant Act, 1954, in respect of the said land; and

(4)

an order that from and after 31 December 1961, the defendant by himself his servants agents or otherwise howsoever do cease to train and exercise racehorses on the land and to use the land for any purpose whatsoever.

The following statement of facts is taken substantially from the judgment. The plaintiff, a farmer, bought two pieces of downland, Farncombe Down and Crow Down, on 1 April 1957. Parts of the downs had been used for many years as gallops for racehorses which were being trained in racing stables in the neighbourhood. The gallops varied in length from three-quarters of a mile to a mile and a quarter. On Crow Down there was one gallop running along one side, so that the rest of the down could be used for agricultural purposes without the gallop being crossed. On Farncombe Down there were several gallops running in different places and in different directions, with considerable areas of farmland behind them. The gallops, though unfenced, were physically distinct from the rest of the down. The defendant was a trainer of horses and had been using the gallops since about 1953 under a licence from a tenant of the former owner of the downs. On about 17 March 1957, the plaintiff and defendant entered into a written agreement of which the following were the material terms:

"1.

[The plaintiff] will let on lease to [the defendant] the right to train and exercise racehorses on the gallops at Farncombe Down and one gallop at Crow Down, Lambourn, recently purchased by [the plaintiff] with rights of access thereto.

2.

The rent shall be £350 a year payable from Jan. 1, 1957, half yearly on July 1, and Jan. 1 in each year.

3.

The lease shall be for a term of three years from Jan. 1, 1957, after which it shall continue on a yearly tenancy.

4.

[The defendant] shall keep the gallops in good condition.

5.

A lease to be prepared by Messrs. Phelps & Lawrence to embody these terms and to be subject to and with the benefit to [the defendant] of a licence dated May 15, 1948, granted to the owner of Lambourn House so far as the same is still subsisting."

Messrs Phelps & Lawrence were solicitors, who acted for both parties to that agreement, but no lease was in fact drawn up. The licence of 15 May 1948, referred to in the agreement was a deed whereby the then owner of the downlands granted to a licensee (who was the then purchaser of Lambourn House under a contract dated 5 April 1948) full licence and authority to use the gallops (in common with others having similar rights) for the exercise of horses for purposes of training for flat racing. It was not disputed that this deed of 15 May 1948, created a licence, not a tenancy. It was expressed to continue for forty years subject to determination in certain events. On 27 June 1961, agents acting on behalf of the plaintiff gave notice to the defendant "to quit and deliver up possession of the right to train and exercise racehorses on the gallops ... which you hold of [the plaintiff] as tenant on Dec. 31, 1961."