The National Trust v Fleming & Ors

Permission to appeal from an arbitral award under section 69 of the Arbitration Act 1996 requires a stringent showing that the arbitrator’s decision was obviously wrong, unless the question is one of general public importance. The court should intervene sparingly in an agreed arbitral process. A covenant permitting cultivation in the ordinary course of agriculture according to the custom of the country may extend to ancillary uses of land that are necessary for that cultivation. Where the evidence establishes that a particular agricultural activity depends on seasonal migrant labour and local custom is to house those workers on the farm, a caravan site used for that purpose may fall within the proviso.

The National Trust sought leave under section 69 of the Arbitration Act 1996 to appeal against an interim award concerning restrictive covenants affecting South End Farm. The arbitrator had concluded that a caravan site used to house seasonal migrant workers was protected by a proviso preserving cultivation in the ordinary course of agriculture or husbandry in accordance with the custom of the country.

The National Trust argued that caravans did not themselves cultivate land, that alternative accommodation was possible, and that their removal would make farming less convenient or profitable rather than prevent cultivation. The central issue was whether the arbitrator’s construction and application of the proviso was obviously wrong.

1. Application dismissed. The court was not satisfied that the arbitrator’s decision was obviously wrong. The application for permission to appeal was therefore refused.
2. Section 69 of the Arbitration Act 1996 imposes a stringent threshold. The court must be satisfied, on the findings of fact in the award, that the tribunal’s decision on the identified question of law was obviously wrong, unless the question is one of general public importance and the decision is at least open to serious doubt. The threshold is materially higher than the usual permission test of a real prospect of success. The court should be sparing in its intervention because arbitration is an agreed alternative to court litigation.
3. The arbitrator was entitled to treat the meaning of agriculture in the proviso as a question to be determined in the light of changing circumstances and current agricultural practice. The National Trust did not challenge the correctness of that legal approach.
4. The findings that salad-crop cultivation in the Chichester area depended on migrant labour, and that local custom was to house seasonal workers on farms, provided ample evidential support. The proviso was capable of covering ancillary activities or uses of land necessary for cultivation. On those findings, housing migrant workers in caravans on part of the restricted land fell within the proviso.
5. The arbitrator’s occasional infelicities of expression and subsidiary errors did not undermine the basic reasoning of the award. Since the proviso applied to all the restrictions and stipulations, it was unnecessary to determine the other construction issues.

The judgment concerned an application for permission to appeal from an interim arbitral award dated 7 November 2008. The award had found that the respondents were entitled to rely on the proviso in the restrictive covenant and had therefore committed no breach. Permission to appeal was refused by the High Court.