Rysaffe Trustee Company (CI) Ltd & Anor v Ataghan Ltd & Ors

A surrender of a tenancy by operation of law arises where the tenant’s conduct is objectively and unequivocally inconsistent with continuation of the tenancy. Informality between associated landlord and tenant does not prevent surrender where the circumstances show that the tenancy has ceased.

An arbitral award made by consent may give rise to issue estoppel on matters necessarily determined in assessing rent, including the extent of the holding. Easements may be implied where common intention, necessity, or the rule in Wheeldon v Burrows requires it.

The claimants, trustees of a family settlement, held the freehold of Part OS 50 at Perton Quarry. The defendants asserted that the First Defendant remained tenant of that land under an agricultural tenancy and claimed rights affecting its occupation and access.

The court determined whether the claimants were entitled to possession, when that entitlement arose, and whether two rights of way were appurtenant to Part OS 50. The issues included surrender by operation of law, the effect of a consent arbitral award determining the extent of the holding, and the implication of easements on conveyances.

1. Possession and surrender. The claimants were entitled to possession. The 1958 agricultural tenancy had been surrendered by operation of law by no later than the 1990 lease. By then, Part OS 50 had ceased to be used agriculturally, quarrying had commenced, and the tenant-controlled company had permitted long-term mining use wholly inconsistent with continuation of the agricultural tenancy. The conduct was objectively consistent only with cesser of the tenancy.
2. The 1977 memorandum did not prevent surrender. It was preliminary or, if complete, unperformed. There was no evidence of any royalty-sharing arrangement being implemented.
3. Alternatively, the parties’ agreement in the 1999–2000 rent arbitration that Part OS 50 was outside the holding amounted to a later surrender. The consent award also created issue estoppel. An arbitration may determine ancillary issues necessarily relevant to rent, including the extent of the holding and terms of the tenancy. The award bound the parties and their privies.
4. Southern access. A 16-foot right of way over OS 59 was impliedly reserved on the 1979 conveyance. The planning permission, corresponding reserved right in the agricultural tenancy, continuous use, direct route, physical indication and parties’ close relationship established the necessary common intention.
5. Eastern access. A full right of way between Part OS 50 and the eastern road was implied on the 2002 conveyance. Existing vehicular access was continuous and apparent and necessary for reasonable enjoyment of Part OS 50. The preliminary issues were decided in favour of the claimants.

First instance judgment. No prior appellate decision is stated in the judgment.