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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Smyth-Tyrrell v Bowden [2018] EWHC 1401 (Ch) (02 February 2018) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2018/1401.html Cite as: [2018] EWHC 1401 (Ch) |
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CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
2 Redcliff Street Bristol Avon BS1 6GR |
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B e f o r e :
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STEPHEN CHARLES SMYTH-TYRRELL | ||
and | ||
WILLIAM ROBERT BOWDEN |
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291-299 Borough High Street, London SE1 1JG
Tel: 020 7269 0370
legal@ubiqus.com
MR G NURSE appeared on behalf of the Respondent
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Crown Copyright ©
This Transcript is Crown Copyright. It may not be reproduced in whole or in part, other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
HHJ PAUL MATTHEWS:
'Having (as he thought) obtained the lease of the property for 15 years, the first claimant began to work on it in order to see what could be done by way of improvement. First of all, an access track had to be paid for, including work to rebuild a bridge across the stream. There was then the clearance of some of the woods and woodland in order to enable the creation of tracks that would allow access and eventually the withdrawal of timber. This led to clearance planting of regeneration for which an agreement was signed in November 1995 and approved by the relevant government department in December. In that year the claimant also applied for a grant through the Woodland Grant Scheme'.
Secondly, Mr Adams refers to paragraph 52 where I say this:
'On the evidence, I find that the proposal put by the claimants to the defendant's parents in 1993 and accepted by them was, and this letting was accordingly entered into by the parties, for the purposes of considering whether to restore, and then if thought fit restoring, the ruined buildings creating access thereto, so that they might be used for tourism (initially camping although later in fact holiday lets). The letting was not for the purpose of the tenants carrying on any agricultural activity on the land. Subsequently some woodlands were worked on but as a complement to the holiday lettings business, to create a rural ambience for the paying guests and not as ancillary to another agricultural purpose carried out on the land. That work did not therefore constitute agriculture within the meaning of the Act'.
The final sentence which I have just read out reveals that this paragraph comes from that part of my judgment which is dealing with the application of the Agricultural Holdings Act, rather than the 1954 Act. The third and final paragraph to which Mr Adams refers me is 62 where I say this:
'So the claimants in the present case can have no right to the grant of a new tenancy in respect of the house. In principle they could claim that right in relation to the rest of the land let to them. The problem is that the landlord claims that he intends to carry on business (indeed the same business) himself in that part of the land'.
'Business is defined by S.23(2) to include a trade, profession or employment and any activity carried on by a body of persons whether corporate or incorporate. As the Court of Appeal stated in Abernethy v Kleiman Ltd, digested in paragraph 1-117, it follows from this definition that business have a different meaning in relation to a body of persons than it has in relation to an individual. For this reason, the question of what constitutes business carried on by an individual is discussed in paragraphs 1.116-1.118. Followed by a detailed consideration in paragraphs 1.119-1.120 of the wider range of activities carried on by a body of persons also coming within the definition.
Although the word 'include' suggests the definition is not exhaustive, the effect of the definition is that an individual must show that he carries on a trade, profession or employment; a body of persons whether corporate or incorporate can in addition establish that it carries on business if it carries on an 'activity'. The range of activities carried on by a body of persons which can come within the definition of business is illustrated by the cases and has been held to include a teaching hospital and provision of accommodation, equipment and staff or another corporate body. The effect of at S.56(3) is that the activities of a Government department are deemed to be a business within S.23.'
"In relation to an activity carried on by an individual an activity must constitute a trade, profession or employment. Those three categories are exhaustive of the meaning of business in relation to an activity carried on by an individual': Lewis v Weldcrest [1978] 1 WLR 1107 ...digested in paragraph 118). The pursuit by a person gratuitously of a spare-time activity in his own home is not a trade, profession or employment: Abernathy v Kleiman Ltd (digested in paragraph 1.117). As Widgery LJ said in that case, the Act
'was intended to pick up a very wide range of tenancies which previously had no sort of protection at all. Shops factories, professional offices, cinemas, tennis clubs and the like were all without protection before 1954 except for the very limited coverage provided by the Landlord and Tenant Act 1927, and, it being the intention of Parliament to give protection to this wide range of commercial activity, the definition of business had to be a wide one. But it certainly does not follow from that Parliament intended to push the tentacles of this Act into domestic lettings or the activities that a man carries on in his private rooms, as part of his hobby or recreation... By and large … what a man does with his spare time in his home is most unlikely to qualify for the description 'business', unless it has some direct commercial involvement in it, whether it be a hobby or a recreation or the performance of a social duty'.
In many cases the question whether the tenant is carrying on a trade, profession or employment is a question of degree. Thus, for instance whether the taking in of lodgers can be a trade, depends to a large extent to the number of lodgers, the size of the premises and the sort of sums and services which are involved."