Southend-on-Sea Estates Company.
Subject_Revenue — Finance (1909–10) Act 1910 (10 Edw. VII and 1 Geo. V, cap. 8), sec. 17 (5) — Undeveloped Land Duty — Power to Determine Tenancy under Lease.
The Finance (1909–10) Act exempts from undeveloped land duty agricultural land held under lease granted before 30th April 1909, but provides that “where the landlord has power to determine the tenancy of the whole or any part of the land, the tenancy of the land or that part of the land shall not be deemed for the purposes of this provision to continue after the earliest date after the commencement of this Act at which it is possible to determine the tenancy under that power.”
By lease dated 4th December 1906 the respondents had let a farm for seven years from 29th September 1904 to 29th September 1911. Power was reserved to the lessors of resuming part of the land let at any time during the currency of the lease “for building or other purposes” on giving the lessee one month’s notice in writing.
Held that the power to determine the tenancy only arose when the landlord purposed to enter “for building or other purposes.” Therefore where the landlord had no such purpose the proviso did not apply.
Their Lordships gave judgment as follows:—
Earl Loreburn—I do not think it is necessary to trouble the learned counsel for the respondents, because in my opinion the decision of the Court of Appeal was perfectly sound. Undeveloped land duty is claimed by the Attorney-General. It is not payable on land which was under a lease made before the Act, but there is a proviso that exemption is not to arise where the landlord has power to determine the tenancy. Now here the lease enables the landlord to resume possession for building or other purposes, which means in my opinion purposes of the same kind. It is admitted that the landlord had no such purpose. Under these circumstances had the landlord in this case the power to determine the tenancy? I think he had not. This power only arose when there was a purpose. If in an action between him and the tenant the landlord had said “I wish very much to determine, but I have no purpose within the covenant,” he would have been restrained from determining the lease. In fact he had not power accordingly to determine the lease. At the end of the proviso there are words to the effect that the tenancy shall not be deemed to continue after the earliest date after the commencement of this Act at which it is possible to determine the tenancy under that power. I do not think it is possible to determine the tenancy unless circumstances exist which would enable the landlord to support his determination in a court of law.
The Solicitor-General has argued that the landlord had the power, because if he resolved upon the purpose he then would possess the power, and it would be in his power to resolve the purpose. I do not agree with that. The statute says he shall have power to determine, and if the landlord has not the purpose he has not power to determine even though he may have the power to form the purpose.
Lord Atkinson—I concur. I think the judgment of the Court of Appeal was sound, and the reasoning on which the learned Lords Justices based their respective judgments is quite convincing.
Lord Parker—I agree. I will only add this, that I think on perusing the section it is reasonably clear that in order to bring the case within the proviso there must be a power to determine the lease which is immediately exerciseable, although of course the section itself contemplates that the operation of the power may be only to determine the lease at a future date, because it alludes to the earliest date at which it is possible to determine it under the power. If that be the case, not only must the power be immediately exerciseable, but in the present case in order to bring that about there must exist a certain state of circumstances, and that state of circumstances must be that there must be a bona fide intention on the part of the landlord to use the land for certain definite purposes. It is admitted that there was no such intention, and therefore though there may be a power in the sense that the Solicitor-General has mentioned there is no power immediately exerciseable, and therefore the case is not within the proviso.
Lord Sumner—I agree.
Lord Parmoor—I agree.
Their Lordships dismissed the appeal.
Counsel for the Appellants— Sir J. Simon, K.C. (A.-G.)— Sir S. Buckmaster, K.C. (S.-G.)— W. Finlay, K.C. Agent— H. Bertram Cox, Solicitor.
Counsel for the Respondents— Hawke, K.C.— Allen. Agents— Dennes, Lamb, & Pearce Gould, for Dennes, Lamb, & Drysdale, Southend-on-Sea, Solicitors.