Rural Estates Newsletter Spring 2021 - Flipbook - Page 6
2 – Greenfield development –
accessing tenanted land
A landlord of an Agricultural Holdings Act tenancy who wishes to
develop part of the holding will often need access to carry out surveys
in support of a planning application. If planning consent is obtained, the
landlord will need vacant possession in order to develop. In either case,
difficulties can arise where the tenant opposes the landlord’s plans.
Thomas Kirkman
The recent decisions in Rees v Windsor-Clive related to a 240 acre largely arable
farm close to Cardiff. The longstanding tenant had farmed the holding under two
tenancy agreements (dated 1965 and 1968); both protected by the Agricultural
Holdings Act 1986 (AHA).
The landlord obtained outline planning permission for housing on the land. The
environmental conditions required the landlord to undertake various landscape, wildlife
and habitat surveys, dig trial pits and boreholes, place surveyors’ stakes and leave bat
detectors on the land.
Gaining access under landlord’s reservations
It is not unusual for AHA tenancies to reserve minimal rights of entry to the landlord, which
are often generally worded and open to interpretation.
In Rees v Windsor-Clive the landlord claimed that it was entitled to enter the farm under a
right of entry in each tenancy as a result of the following wording:
• The 1965 tenancy contained a right to “enter on any part of the farm lands and
premises at all reasonable times and for all reasonable purposes”, and
• The 1968 tenancy agreement included a right to enter the premises “for the purposes
of inspecting the same”.
Asked to consider exactly what those rights would allow a landlord to do, Lord Justice
Lewison confirmed the following principles:
• the usual principles of contractual interpretation and meaning of words are to be
applied in interpreting any rights excepted or reserved by a landlord in a lease,
• the rights reserved to the landlord should not breach their obligation to provide quiet
enjoyment (this would only be likely to arise where substantial or serious interference
with the tenant’s use and enjoyment of the land occurred or where the rights
reserved to the landlord would frustrate the purpose of the letting),
• where a landlord’s activity will cause ‘material disturbance or damage’ to the tenant
we should expect it to be expressly authorised by the tenancy,
• where a right of entry can be exercised for a ‘reasonable purpose’, the landlord is
entitled to do what is ‘reasonably necessary’, but not necessarily what is ‘convenient’
or ‘desirable’ in order to achieve that purpose,
• there is no rule preventing those exercising a landlord’s right of entry from leaving
things on the land (in this case bat detectors), and
• what is permitted by a right of entry will be a question of fact and degree in
each case.
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Rural Estates Newsletter
Spring 2021
