Earl of Plymouth v Rees
Right to enter a farm “at all reasonable times for all reasonable purposes” does not entitle a landlord to dig boreholes
HHJ Keyser QC, sitting as a High Court Judge, so held in Earl of Plymouth v Rees  EWHC 1008 (Ch), where judgment was handed down on 18 April 2019.
The case concerned rights of entry relating to a farm on the outskirts of Cardiff let to a farmer under tenancies protected by the Agricultural Holdings Act 1986.
The landlords claimed an injunction to restrain the farmer and his son from interfering with the exercise by the landlords of rights of entry reserved by the tenancy agreements. The Judge held that no injunction should be granted and ruled on a dispute as to the interpretation of the rights of entry.
Stephen Jourdan QC appeared for the farmer and his son.
The terms of the tenancy agreements
The first tenancy agreement, of 187 acres of land, reserved to the landlords the following right: “Right for the Landlord and his Consultant and all others authorised by him with or without horses carriages and other vehicles to enter on any part of the Farm lands and premises at all reasonable times for all reasonable purposes”.
The second tenancy agreement, of 51 acres of land, contained an agreement that: “the Landlord may at any time and at all times during the said tenancy enter upon the said premises with Agents Servants Workmen and others for the purpose of inspecting the same or for making roads sewers or drains or for any other purpose connected with his estate”.
The interpretation of rights of entry
HHJ Keyser QC considered a number of authorities on the interpretation of such provisions, and held that the following principles applied:
“1) An exception or reservation will, if possible, be construed in such a manner as to preserve its validity.
2) Therefore the court will, where it is possible to do so, construe an exception or reservation as restrictively as is required to avoid a derogation from grant or a conflict with the covenant for quiet enjoyment. In the words of Neuberger J in Platt v London Underground Ltd (supra): “An express term should, if possible, be construed so as to be consistent with what Hart J called ‘the irreducible minimum’ implicit in the grant itself.”
3) There is no further rule that a reservation is to be construed restrictively against a landlord.
4) However, the application of the standard principles of construction, including the requirement to have regard to all of the provisions of the instrument and to the principal purpose and subject matter of the instrument, will tend to lead the court to expect that substantial qualifications of the rights to exclusive possession and quiet enjoyment of the demised premises will appear clearly from the lease. Further, apparently broad and unqualified words in reservations may, on closer examination, be found to have a more restricted meaning when read in their immediate or wider textual context.
5) If it is not possible to construe an exception or reservation in a manner consistent with ‘the irreducible minimum’ implicit in the grant itself, it will be struck down as being repugnant to the lease.
6) The contra proferentem rule operates only if the exception or reservation is ambiguous, in the sense that the court is unable to decide on its meaning by the use of the materials usually available for interpretation.
7) By reason of the principles of construction set out above, the contra proferentem rule can only apply if the court cannot otherwise decide among two or more constructions, all of which are consistent with the irreducible minimum consistent with the grant itself. This is because: (a) if any possible construction of the reservation would be inconsistent with the irreducible minimum implicit in the grant itself, the reservation will have been struck down as repugnant to the grant; and (b) if, of two possible constructions of the reservation, one would be consistent with the irreducible minimum implicit in the grant itself and one would not, the court will have chosen the former in accordance with the principles set out above.
8) Once the court is forced to have recourse to the rule, the correct position is that the reservation operates as a re-grant by the tenant and therefore the reservation falls to be construed against the tenant, who is considered to be the proferens”.
The landlords could enter to inspect but not to dig holes
Applying those principles, he held that the rights of entry allowed the landlords to enter the farm for the purpose of inspecting and observing, to leave behind wildlife monitoring devices such as bat boxes which he considered to be “a form of extended inspection”, but did not permit the landlords to enter on the farm for the purpose of activities such as the digging of excavations, the sinking of boreholes, the erection of structures, or the pegging out of intended development sites.
No injunction should be granted
The Judge refused to grant the injunction claimed by the landlords. The injunction sought was for the purpose of restraining the farmer and his son from future infringement of the landlords’ rights. It was therefore a quia timet injunction. Such an injunction should not, ordinarily, be granted unless the claimant can show a strong probability that, unless restrained, the defendant will do something which will cause the claimant irreparable harm—that is to say, harm which, if it occurs, cannot be reversed or restrained by an immediate interlocutory injunction and cannot be adequately compensated by an award for damages. Neither condition was satisfied.
The terms of the injunction claimed
The Judge said that if he had been persuaded to grant an injunction, it would not have been in the form claimed by the landlords. They claimed an injunction “prohibiting the Defendants from obstructing the landlords or his authorised agents’ access to Maesllech Farm and/or from impeding or denying the Claimants’ exercise of their rights under clause 7 of the Tenancy Agreement dated 8 January 1965 and/or under the Tenancy Agreement dated 20 March 1968”.
The Judge said that this form of injunction was not appropriate. It left it uncertain what acts would infringe the landlords’ rights. He said: “An injunction must make it clear to the respondent what he must or must not do. To identify the prohibited or mandated acts merely by reference to legal conclusions is insufficient”.
The judgment can be read here
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