July 17, 2020

Bat boxes and boreholes – how a wildlife survey blocked a housing development

The Court of Appeal has recently handed down its much awaited decision in Rees v. Earl of Plymouth [2020] EWA Civ 816. The case concerned a 240 acre farm in south Wales which has been farmed by the same tenant family since the 1960’s under two separate Agricultural Holdings Act tenancies.

The landowner wished to develop part of the site for housing and had obtained outline planning permission but subsequently fell out with the tenant farmer when attempting to enter the farm to carry out wildlife and habitat surveys (which were a requirement of the planning permission granted). The surveys included the digging of boreholes and leaving bat detectors on the land and the tenant claimed that the rights of entry reserved for the landowner in the AHA tenancies did not permit entry for this purpose.

In 2016 the landowner obtained a temporary injunction to prevent the tenant interfering with its rights of entry and in 2019 the case first went to trial. The court was required to interpret the two different rights of entry under the tenancies, being rights:

1. “to enter on any part of the farm lands and premises at all reasonable times and for all reasonable purposes”; and

2. of entry “for the purposes of inspecting the same…”.

The trial judge refused to grant a permanent injunction at the first trial on the basis that “reasonable purposes” for entry did not include digging excavations, sinking boreholes or erecting structures. The purposes for entry should relate to the landlord and tenant relationship and generally be interpreted in favour of the tenant.

However, the court also held that the installation of bat boxes and placing surveyors’ reference pins on the land was permitted on the basis that it could be considered a form of extended inspection. The tenant took this point to appeal on 1 July 2020 arguing that a right of inspection should not extend to leaving equipment on the holding.

The Court of Appeal upheld the decision of the first court in concluding that a right of entry does not in itself prevent items being left on land. Each case needs to be considered on its own merits and specific facts and, whilst the starting point is the tenant’s right to exclusive possession, in this case there wasn’t substantial or serious interference or material disturbance or damage resulting from the bat boxes or reference pins. As such the AHA tenancies had been correctly interpreted and the appeal was dismissed.

This decision does not necessarily make the position any easier for landlords or tenants since we are still left with no clear rules as to interpretation of access rights: we must consider everything on a case by case basis. That said, we can take guidance from the case on the exercise of rights to carry out environmental and habitat surveys and it is now clear that if a landlord wishes to carry out surveys that are likely to cause significant interference with the holding this must be expressly provided for in the tenancy. Both landlords and tenants would be well advised to ensure that this is given proper consideration when tenancy agreements are drafted and if such rights are to be reserved tenants’ solicitors will also wish to include watertight compensation provisions.

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