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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Gilpin & Ors v Legg [2017] EWHC 3220 (Ch) (13 December 2017) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2017/3220.html Cite as: [2017] EWHC 3220 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY

		Bristol Civil Justice Centre 2 Redcliff Street, Bristol, BS1 6GR
		13/12/2017

HHJ Paul Matthews :

Introduction

1. This is my judgment on the trial of this claim, which was started by claim form dated 1 September 2015. It seeks a declaration regarding a notice dated 23 December 2014, expiring 31 March 2015, given by the defendant to the claimants intended to determine what are alleged to be licences to use five particular chalets or huts (sometimes called "beach huts") at Portland Bill in Dorset. It also seeks a prohibitory injunction to prevent the defendant landowner relying on the notice or interfering with the quiet enjoyment of the claimants' rights to use those huts. The particulars of claim assert that the claimants have tenancies of the huts and that the notice is invalid or amounts to a derogation from grant. The defence and counterclaim was served on 30 September 2015, after the defendant had served a second notice. This was intended to determine any tenancy from year to year that may have come into existence, and expired on 31 March 2016. So that second notice is also in issue. A reply and defence to counterclaim was served on 16 October 2015.
2. The claimants are the owners or joint owners of five huts out of some 71 sited on fields belonging to the defendant. Each one has a different history, having been constructed (and in some cases replaced) at different times, pursuant to rights granted by different people. It will therefore be necessary to deal with the facts of each case separately. The defendant is not the only landowner at Portland Bill with huts sited on his land. But each landowner deals differently with the huts which are on his or her land. There is not one model agreement or set of terms which applies to all huts at Portland Bill. Nor is there any special statutory regime relating to their occupation or their use. It is the ordinary law that I must apply.
3. I should say a few words about the statements of case. In summary form, the claimants claimed that they had 5 yearly, or alternatively annual, periodic tenancies of the plots of land on which their huts stood. An alternative claim was made that the first notice to quit was invalid, or, if it was valid, amounted to a derogation from grant. This allegation relied on, inter alia, alleged representations by the defendant or his parents, on which the claimants relied, that they would be able to sell what were called their "interests" at market value. But, in light of what happened at trial, it is to be noted that the particulars of claim advanced no claim in proprietary estoppel.
4. The defendant denied the claim to tenancies, and said that the claimants had licences for one year at a time to station their respective huts on his land. His defence made clear that in his view the huts continued to belong to the claimants. He also denied that there was any derogation from grant in serving the first notice. Having served a second notice to quit on 10 September 2015, to expire on 31 March 2016, he made a counterclaim for declarations as to the effect of the notices, alternatively for injunctions and damages for trespass.
5. The claimants' reply and defence to counterclaim joined issue on the question of tenancy or licence. It also asserted expressly that the huts formed part of the realty. In the claimants' response, dated 4 July 2016, to the defendant's request for further information, dated 28 January 2016, concerning (amongst other things) the allegation of representations made to the claimants in relation to the claim of derogation from grant, for the first time the claimants appeared to be advancing a claim which at least resembled one in proprietary estoppel. I will have something to say about the pleadings in this case at a later stage.

Witnesses

6. The following witnesses gave oral evidence in this order: John Hort (father of the second claimant), Dr Paul Ratliff (the third claimant), Sarah Gilpin (the first claimant), Patrick Moverley (the fifth claimant), Howard Legg (the defendant), Jeffrey Lee (the defendant's solicitor), Margaret Legg, and Graham Thorne (expert witness). I record here my impressions of them.
7. Mr Hort was a careful witness, who gave clear evidence. He accepted on occasion that his memory was at fault and accepted correction when it was shown that he was mistaken. He was doing his best to assist the court.
8. Dr Ratliff was a slightly nervous but clear and straightforward witness. His memory appeared to be good. Once he got into his evidence he became more relaxed and comfortable. He was obviously truthful in the evidence he was giving.
9. Ms Gilpin was a quiet and nervous witness, but rather prickly and apt to put up a barrage of words, often putting matters obliquely, and shying away from confrontation. Whilst I do not think that she told me any deliberate untruths, indeed was trying to help the court, I think she has convinced herself that she has been hard done by, that she is in the right, and so she interprets everything in that light. I accept what she says when it is corroborated by another source, but am more cautious when it is not.
10. Mr Moverley gave clear and straightforward evidence, and was obviously trying to assist the court. I accept what he says.
11. Mr Legg was an intelligent and quick, even feisty, witness who saw the point of the question immediately, and gave clear evidence in response. Although he too believes strongly that he is in the right, and that does colour his evidence to some extent, he sometimes gave evidence against his own interest. On one occasion his tone became rather aggressive, perhaps through exasperation. I accept that he was otherwise trying to help the court and that his evidence was truthful. On the whole I accept his evidence.
12. Jeffrey Lee is the defendant's litigation solicitor. He was a professional but slightly excitable, even enthusiastic witness. I accept what he says as truthful.
13. Mrs Legg is an elderly lady, whose late husband was the defendant's cousin, and hence they share the same surname. Her grandfather had a hut on Portland, and was a native Portlander. His hut passed to her father, and then to her. She did not have a great deal of relevant evidence to give, but I accept what she says as truthful.
14. Lastly, there was Graham Thorne, a surveyor who was instructed as a single joint expert. I found him to be a cautious and on the whole careful witness, who was doing his best to help the court. I accept his evidence as truthful. However, I did not find his evidence particularly helpful in relation to the questions arising in this case.
15. In addition, witness statements were filed from Mr Ross Gould (but who however was not tendered) and Margaret Leicester (who was proposed to give evidence but it being unchallenged she was not in fact called). Expert reports were filed from Barry Vincent and Dr Kenneth Falcon on the structure and removeability of the huts. In addition, they made a joint statement showing where they agreed and disagreed. They were not called to give live evidence.

Background

16. On the basis of the evidence given and the materials placed before me I find the following facts. The defendant was born in 1943, and owns several fields at Portland. The field and tithe numbers are as follows:

No. Tithe

761 2351

762 2362

765 (part) 2359

737 (part) 2350

739 2313

The defendant owns a 3/5 undivided share of field 737. The Bird Observatory apparently owns one fifth of that field, and the other one fifth is vested in another person. There are 71 huts in total on the defendant's land. There are other huts on the lands of adjacent landowners, including the Crown Estate.

17. Vehicular access to the defendant's fields (737, 761 and 765) as well as to others, is by means of a track from the road to Portland Bill which meets field 737 at the north-western corner. The track is barred by a gate with steel posts a few yards from the road. In the past there may have been another gate, but there was also a period when there was no barrier at all.
18. In broad terms, the history of the fields now belonging to the defendant is this. On 16 July 1958 the defendant's parents Herbert and Dorothy Legg bought part of tithe 2359 (now Field 765) from Jonathan Lano and Rebecca Moore. One of the two huts belonging to the first claimant (hut 6) and the hut belonging to the second claimant (hut 1) were already on that land. The other hut belonging to the first claimant (hut 5) and that belonging to the fifth and sixth claimants (hut 18) were constructed later on this land. At the same time Mr and Mrs Legg senior also bought part of tithe 2351 (now Field 761, on which the hut of the third and fourth claimants (hut 20) is now situated. They also bought a further third of tithe 2351 on 23 September 1958, from John Pearce. There were already some huts on those fields. All of this land was of low quality, not good enough for farming activity beyond grazing, and there were few other ways to exploit it. The defendant's parents allowed third parties to construct and occupy such huts in return for payments, but they ran other businesses as well. Between 1946 and 1952, for example, they owned and operated a café at Portland Bill, called The Lobster Pot. In about 1964 they moved to Weybridge, then in 1977 to Yateley.
19. All huts constructed after 1947 require planning permission, as temporary buildings. That permission is granted for a term, originally one year, then five years but now ten, and on conditions, including (for example) that there will be no overnight occupation of the hut, and that the hut must be removed if permission is not renewed. Any huts built before 1947 do not require such permission, and, of course, there are no conditions attached to them regarding use (or indeed removal). Of the claimants' huts, only that of the second claimant (hut 1) falls into this category. The defendant said in cross-examination that the last new planning permission was granted in 2009 (though not to any of the claimants). I accept this.
20. On 11 November 1958, at a time when huts numbers 1 and 6 had already been constructed, Mr and Mrs Legg senior granted a quarrying lease to the South-Western Stone Company Ltd for 999 years of certain parcels of land including Fields 761 and 765, at a nominal rent (if demanded), for a premium of £3000. That appears to mean that all the huts with which I am concerned are sited on land demised by this lease, although there may be a question mark over hut 20 on field 761. However, before entering on and opening up any land for quarrying purposes, the lessee has to give three months' notice in writing of its intention to do so. Planning permission was granted in 2009 to quarry the fields along the coastal strip between Southwell and the Bird Observatory at Portland Bill. On 16 May 2016 the lessee for the first time since the lease was granted gave the three months' notice in respect of a different parcel of land (tithe 2096), not concerned in this dispute, about half a mile away, in the direction of Southwell.
21. The defendant had nothing to do with the land as a boy, and when he grew up he worked elsewhere, including East Grinstead in the UK, and abroad in Hong Kong and Zambia. He was an engineer by training. He returned to Weymouth in 1987, where he helped his parents in their business enterprises, in particular with the clerical work. He had a word processor and printer, and took over the secretarial functions from his parents, although he also gave them some advice. The defendant's father died on 10 September 1992, leaving his mother as the sole owner of the land and the businesses. From 1993 onwards he assisted her in the business carried out on the fields. After his mother died on 23 November 1997, he became the owner of the fields under her will. Since then, he has not expressly granted any new right to site a hut on any of those fields, though there have been transfers to incoming hut occupiers.
22. There is a significant lack of documentation relating to the terms on which the claimants' huts are sited on the defendant's land. Yet in some cases the arrangements go back decades. It was not argued that the lack of documentation gave rise to any inferences against this or that party. As I have said, there is a dispute between the parties as to whether the claimants have merely a licence to place their own huts (which remain chattels belonging to them) upon the land belonging to the defendant or the claimants have some form of tenancy (and whether if so the huts form part of the land as fixtures), or indeed some other form of property right. The defendant claims the right to increase what he calls the licence fee from time to time and also to a commission of the sale price of any hut by an existing hut owner to a purchaser. As I have already said, it will however be necessary to examine the arrangements in respect of each hut individually. It may also be necessary to consider the transfers that have taken place from one owner to another since those original arrangements were made.

Recent events

23. In January 2013 the defendant wrote to all the hut owners saying that after receiving legal advice he wished to formalise what he considered to be the existing licence agreement between the parties in a written version then enclosed. He requested that all the hut owners sign a copy of that agreement and return it. About 28 hut owners did so initially. In November 2014 the defendant's solicitors wrote to the hut owners who had not signed the agreement advising them that, since they had failed to do so, they had to remove their huts by 30 March 2015. The defendant also wrote to those hut owners on 23 December 2014 serving what was called a notice of termination of their licences, requiring vacant possession by 31 March 2015. He wrote again to those owners who had not signed the agreement on 25 February 2015 giving those owners the opportunity of signing either the solicitors' draft agreement or a new agreement modelled on that used by the Crown Estate.
24. All the other hut owners who had not signed the solicitors' draft apart from the claimants and one other (a Beverley Colhoun) signed the latter form of agreement. The claimants reverted with their own version of a licence agreement but the defendant refused to accept this. The defendant refunded to the claimants payments that they had made for the year 2015 – 2016 and informed them that they were no longer entitled to use their huts on the defendant's land. On 3 May 2015 the fifth and sixth claimants (who had previously signed a 'Hutter's Voice' form of agreement) sent a signed agreement to the defendant in the form of the Crown Estate version but the defendant said it been received out of time and the notice of termination was still applicable to them. However, Beverley Colhoun, who also had not signed either the solicitors or the Crown version of the agreement also asked to be allowed to sign late. The defendant allowed her to sign the Crown version on the basis that one of her neighbours had said she was a good neighbour, but also she paid a fee of £1000 to him on 3 June 2015. In cross-examination, he said that this went to pay extra solicitors' costs he had incurred. I accept this.
25. On 10 June 2015 the defendant's solicitors wrote to the claimants, informing them that if they did not remove their own huts the defendant would instruct contractors to do so. He asked for confirmation on or before 31 July 2015 as to when removal would take place, but none of the claimants removed their huts. The claim form in this matter was issued on 1 September 2015. On 10 September 2015 notices to quit appropriate to determine a tenancy from year to year were served by the defendant's solicitors on his behalf on all the claimants in respect of their huts. These were stated to be served without prejudice to the notices to terminate licences which had been served on 23 December 2014, but on the alternative basis that the claimants enjoyed tenancies from year to year rather than licences, and on the footing that the period of tenancy would end on 31 March 2016.

The huts in question

Hut 1

26. I turn to deal with the hut of the second claimant (hut 1). In 1946 the Lano or Moore family granted to her grandfather the right to build and occupy what was called a "chalet" on field 765. This was of course long before the quarrying lease of 1958. He engaged and paid a carpenter/joiner, a Mr Peters, to construct it on site. Because it was in place before the coming into force of the new planning law in 1947, the chalet did not and does not need planning permission and there are no conditions attached to its use. The terms of the arrangements between the parties included one that the chalet could be transferred within the family, but that, if it was desired to transfer it outside the family the landlord had to be given first refusal. The terminology used in any documents relating to the hut until 2005 was always the terminology of leases, namely "lease" rather than "licence", "tenant" rather than "licensee" and "rent" rather than "licence fee". Rent was payable, and paid, per annum. It was accepted that the landlord was entitled to increase the rent from one year to the next. But Mr Hort's evidence (which I accept) was that Mr Legg told his father in the 1980s that he could stay as long as he liked, so long as the rent was paid.
27. The chalet was transferred by the second claimant's grandfather to her father (Mr Hort) on his death in 1998, on trust for the second claimant, as she was then a minor (she attained the age of majority on 6 September 2005). In 1999 the second claimant's father (as such trustee) asked the defendant's permission to extend the chalet. The defendant consented subject to certain conditions (which appear to have been fulfilled), and the extension was made. The hut and its extension rest on concrete or stone blocks held down by its own weight. There are anchorage restraints at the corners. There is no fence or other structure separating the curtilage of this hut from any other, although there is a dry stone wall behind the hut separating field 765 from field 761.

Hut 6

28. Hut 6 was built on field 765 before the transfer of 1958 to the defendant's parents (and therefore also before the quarrying lease was granted). The first claimant paid £11,500 to a Mr Bridle for it in 2004. She was advised by neighbours that there was a right of way along the track to the public highway. She was concerned that there was no formal paperwork, and so she obtained a purchase receipt from him. She did not contact the defendant directly, though she did send a reference to him through Mr Bridle.
29. A letter dated 19 February 2004 from the defendant to the first claimant's predecessor refers to "the site rent for a chalet". One to the first claimant dated 21 April 2005 refers to "a rent demand … for the site of your recently purchased hut". It also refers to the defendant's proposal "to raise rents to a more market related level" and "the outstanding rent". That rent was payable annually, and in that year it was £166. A further letter of 11 June 2005 from the defendant refers to "significant rent increases". In a letter of 19 February 2006 (and in subsequent years) the defendant however refers to "license fee" and "license agreement". The letter enclosed a document headed "Site Rules for Chalets at Portland Bill", which the first claimant had not seen before. The first claimant challenged the use of the word "license" in a letter to the defendant of 28 March 2006, and continued to use the word "rent".
30. The first claimant spent money over four years on renovating and rebuilding the hut as a sculpture studio from which she subsequently conducted workshops. The hut has an extension to the rear. There was an application for planning permission for a rear extension to this hut in October 2000. The hut rests on concrete and stone blocks, and some hollow concrete building blocks. There are some 7 anchorage restraints. The defendant sought professional advice on the removal of the claimants' huts. Two contractors each were concerned that hut 6 would be the most difficult to move. One was concerned that it might be damaged in the process of dismantling. The present planning permission for the hut expires on 31 December 2020.

Hut 5

31. Hut 5 was built some time after 1962. I have not seen any documents to indicate that rent was payable annually, but the arguments proceeded on that basis, and I will so assume. The hut was acquired by a Mr and Mrs Ray Wilkinson soon after the first claimant bought hut 6. They offered the first claimant the first refusal. She wished to acquire it as the space between huts 5 and 6 was where her workshops were held, but she did not have the resources. She clubbed together with a group of others. But exactly who they were is unclear. The names given in the documents in evidence before me have fluctuated between four and six over time.
32. According to a receipt for the deposit of £4,000 dated 23 July 2010 signed by Mr Wilkinson as seller and by the claimant on behalf of the buyers, the latter were five persons: James and Jane Dallas-Middleton, Sandra Dorey, the first claimant and Steve Hodinott. A reference was given for Mr Dallas-Middleton to the defendant by a lady called Carole Nealey in an email of 9 August 2010. This email states in part that "he, with others, is buying a hut from at Portland Bill" [sic]. A document headed 'Sale Agreement' and dated 19 October 2010, once more signed by Mr Wilkinson as seller and the first claimant on behalf of the buyers, shows that they paid a total price of £16,000 for the hut. But the document states that the "Buyers and tenants in common" were six persons: James and Jane Dallas-Middleton, Sandra Dorey, the first claimant, Steve Hodinott and Wendy Manning.
33. However, Mr Dallas-Middleton told the defendant in an email of 24 October 2010 only that he (Mr Dallas-Middleton) "now [had] ownership of hut 5". (The defendant cannot have seen the receipt for the deposit and the "Sale Agreement", because on 26 January 2014 he wrote in an email to Sandra Dorey that Mr Dallas-Middleton had bought originally alone.) Then, in an email of 17 December 2010, Mr Dallas-Middleton told the defendant that "I bought the hut with others (3) … they are as follows. sandra dorey … wendy manning … jane dallas-middleton …" In an email to Steve Colhoun dated 20 February 2013 the defendant said in relation to co-ownership of huts that "in one case there are five joint owners…" He may have been referring to this hut. In an email from Sandra Dorey to the defendant dated 11 April 2014 she told him that there were six owners of hut 5, including "Steve Hoddinot" (sic).
34. On 9 July 2015 Sandra Dorey sent an email to the defendant to inform him that she had given her interest to the remaining co-owners without consideration, and was no longer a co-owner of hut 5. On 28 July 2015 both James Dallas-Middleton and Wendy Manning separately emailed the defendant to inform him that each had given his or her share to the first claimant, again without consideration. I have not seen any actual documents of transfer of shares, nor any similar communication relating to the share of Jane Dallas-Middleton or Steve Hodinott (or Hoddinot). However, on 29 July 2015 the defendant emailed the first claimant to say that he had "been advised by all the other claimed co-owners of hut 5 in field 765 that they no longer have an interest in the hut and that you are now the sole owner." The first claimant responded that that was correct. It has not been suggested that it is not. Accordingly, I proceed on that basis. As I say later, there was a term that commission be paid to the landowner on the transfer of a hut. However, no commission was paid to the defendant on these assignments. No explanation was given for this, though the defendant said in cross-examination that it was confusing at the time as to who in fact was or were the owner or owners.
35. As with other huts, there is no physical marking or barrier to show the curtilage of this hut. The hut is supported on masonry blocks with 3 metal anchorage restraints. The present planning permission for the hut expires on 12 September 2024.

Hut 18

36. The fifth and sixth claimants purchased hut 18 in field 765 from Graham Rose acting on behalf of his aunt Mrs Bullard in August 2005. The hut had been on this site before 1960, but it was replaced in late 1981. It is fastened to the ground with angle irons. The Moverleys looked at the hut and liked it, paying a total of £15,000 for it in two instalments (deposit £1500, balance £13,500). The receipt for the deposit says that "deposit will be refunded if landowner refuses to authorise sale". Rent was payable annually. The Moverleys understood that they could own the hut for as long as they wanted, and could leave it to their children or could sell it. They did not consider the hut as being a movable construction. They would not have bought it in that case.
37. In February 2006 the defendant sent an email to the fifth and sixth defendants concerning rent and site rules. A new hut was constructed in February 2009. The Moverleys paid £3240 plus VAT for the construction. The fifth claimant installed interior insulation, gas cooker and other fittings, spending a further £3800. The hut rests on lengths of concrete and stone blocks, without restraints. Once again, there is no marking of the curtilage of the hut. The present planning permission for the hut expires on 31 August 2018.

Hut 20

38. Hut 20 was constructed on field 761 in the spring of 1963 by the same Mr Peters as is mentioned in paragraph 26, at a cost of £113 7s 6d, for the uncle of the third claimant. The landowners then were the defendant's father and mother. It was apparently one of the last huts to be permitted to be built by the local authority. Planning permission was granted until 1965, and renewed thereafter, originally for five years at a time and now more recently 10 years. There is a condition in the permission prohibiting overnight or permanent use. An extension was built in about 2014, replacing a previous (smaller) extension. As with other huts, there is no curtilage wall or other separation of this hut from others. The hut rests on masonry blocks, without any restraints.
39. The third claimant's evidence (which I accept) was that his uncle had told him that he agreed to take a lease of a plot of land at a low rent to build a chalet, and was allowed to stay there as long as he wished, subject to planning, and provided that he paid the rent. Again, the language used in the arrangements between the owners of the land and the third claimant's uncle was the language of landlord and tenant, with frequent reference to rent, payable "per season" (ie annually). A letter from the defendant's mother to the third claimant dated 30 April 1987 referred to "other tenants". There were only a few 'site rules', attached to the annual rent demand. That sent on 1 March 1987 included the need for permission for the transfer of "sites" and the need to give the landowners first refusal at the asking price less 15% commission.
40. Both the third claimant and his uncle appear to have paid both the borough council's and the county council's rates on the chalet. A letter from the Local Valuation Officer dated 8 August 1990 explains that this is calculated on the basis of "the rent which it is estimated the hereditament might reasonably be expected to let from year to year if the tenant undertook to pay all usual tenant's rates and taxes and to bear the cost of the repairs and insurance and the other expenses (if any) necessary to maintain the hereditament in a state to command that rent."
41. The third claimant's uncle sold the hut to the third and fourth claimants in 1986. Commission on the sale was paid to the defendant's father. Rent demand letters from the defendant after he took over continued to refer to "rent" and "chalet site". In 2005 there was a large increase in the annual rent. The third claimant argued with the defendant about it, but in the end paid up. In 2006 the defendant changed the word "rent" to the words "licence fee". In 2007 there was another large increase. The present planning permission for the hut expires on 27 June 2024.

Removability of huts

42. The issue of the movability, and removability, of the huts plays a part in the case. Expert evidence was given in documentary form by Barrie Vincent for the claimants, by a report dated 7 October 2016, and by Dr Kenneth Falcon for the defendant, by a report dated 6 October 2016. Mr Vincent also responded to a number of questions on his report on behalf of the defendant. The two experts also made a joint statement dated 24^th of May 2017. Neither expert gave live evidence. The impressions given from their documentary evidence are rather different. Mr Vincent, who is a surveyor, comes across as argumentative, descending into the arena as an advocate, and venturing into areas in which he had no demonstrated expertise (for example the legal distinction between chattels and fixtures). Dr Falcon, who is an engineer, comes across as cautious, anxious to restrict himself to his area of expertise, more scientific than Mr Vincent, and as carefully qualifying his opinions throughout. As a matter of impression, I considered that Dr Falcon's expert evidence was likely to be more reliable than that of Mr Vincent, and accordingly where they conflict I prefer that of Dr Falcon.
43. In summary form, the evidence of Mr Vincent was that all the huts concerned were bespoke units constructed on site, and that none of them was designed or built with the intention of being mobile. In his view the only way to move any of these huts was to dismantle it into its component parts, thereby damaging many of the component parts, and costing more to reconstruct than to replace with new. Attempting to lift the huts by crane had the potential to cause damage. Mr Vincent also pointed out that the entrance to the fields was narrow and unsuitable for crane and low loader transport, and stone walls bordering fields made manoeuvrability difficult, if not impossible. His report also contained an opinion on the meaning of chattel and fixture in law.
44. Dr Falcon gave evidence that a hut made of prefabricated panels assembled by being bolted together can be disassembled and reassembled elsewhere in its original form. However, where parts of the hut have been nailed or screwed together, then, although it can be dismantled and rebuilt, more damage may be sustained during the dismantling.
45. He gave a detailed description of each of the huts concerned. In his view, it would be possible to move huts 1 and 5, with (in each case) the exception of a lean-to appendage on one side and a low-level locker at the rear, from its existing pitch to a different location by disassembly. Neither hut would need to be destroyed. However, it would be at greater risk of damage in being moved now than it would have been when first constructed. As to hut 6, Dr Falcon's opinion was that a good many changes had taken place to it since it was first placed on site. In his view, originally it could have been moved to an alternative location by disassembling, or by lifting as a whole. However, the changes meant that it would not now be reasonably practicable to move it from its existing pitch except by complete dismantling, which would be likely to cause damage, and it was therefore unlikely that it could be reconstructed in its present form. In Dr Falcon's view, hut 18 was in a condition robust enough to be moved, fully assembled, from its present pitch to another location. It would not need to be disassembled first, though moving it as an abnormal load would be complicated. Similarly, hut 20 could be moved as a whole by crane, but a lean-to would first have to be removed, and it would need to be moved carefully along the lane. A simpler method would be to disassemble the hut. But it would be necessary then to repair the roof felt and the felt to the sides.
46. The factual evidence given at the trial of the ability to remove or dismantle huts was limited. Mrs Margaret Legg gave evidence in her statement of witnessing about 13 huts (on Crown Estate land) being lifted by crane and removed to a different location. She says that she did not hear of any being damaged. The defendant's witness statement at paragraph 21 gives hearsay evidence to similar effect. A witness statement had been served before trial for Mr Ross Gould, who would have given direct evidence of removing a hut on his lorry. But he was not called. I therefore ignore his statement. But the defendant's solicitor Jeffrey Lee was called, and he confirmed his own witness statement.
47. In that statement, Mr Lee gives hearsay evidence of what was told to him by a man called Michael Baker, who had been the owner of a hut that had been removed from field 763 in 2015. Mr Baker told Mr Lee that his new hut was bolted together on site, in prebuilt sections. He also told Mr Lee that in the time of the defendant's parents huts had been removed by mobile crane from one field to another. When his own hut had been removed by his nephew, some damage had been caused, he thought, because the straps going over the roof had squashed it. Mr Legg had expressed the view that the use of a metal frame wider than the width of the hut (a so-called "spreader" frame) would mean that the straps did not squash any part of the hut. Mr Lee also spoke to Mr Gould, who explained to him the use of such a frame. This would be set wider than the hut, and so protect it from the straps whilst being moved.
48. Although it is hearsay, this evidence is admissible in these proceedings. Its hearsay nature instead goes to the question of weight. In considering the weight of this evidence, I bear in mind that, although I can observe Mr Lee give his evidence, I cannot observe the demeanour of the person who was talking to him, who (unlike Mr Lee) was not then on oath, and of whom I can ask no supplemental questions. On the other hand, I take into account that Mr Lee is a solicitor, is not himself a party, and is bound by a strict professional code. I am sure he has done his best accurately to convey what Mr Baker and Mr Gould told him. I will accordingly give some weight to what he has told me.
49. As I have said, in considering and comparing the evidence of the two experts, I prefer that of Dr Falcon. In light of the expert and factual evidence, my conclusion in relation to the huts is as follows. At the time that each hut was placed on its plot it could have been moved from that plot by disassembly and reassembly elsewhere, and in most cases also by lifting by crane without the need for disassembly. That remains today the position for most of the huts, although there would be a greater degree of damage then there would originally. But in the case of hut 6 moving the hut now would cause more significant damage.

The status of the huts

50. The question is whether the huts constituted chattels, distinct from the land on which they stood, or on the other hand formed part of that land, and were or became the property of the landowner. Whether a chattel accretes to the realty is a question of law. In Elitestone Ltd v Morris [1997] 1 WLR 687, the House of Lords considered the question, in a case where wooden bungalows sat by virtue of their own weight on concrete pillars attached to the ground.
51. Lord Lloyd of Berwick (with whom the other law lords agreed) said:

"For my part I find it better in the present case to avoid the traditional twofold distinction between chattels and fixtures, and to adopt the threefold classification set out in Woodfall, Landlord and Tenant (looseleaf ed.), vol 1, para. 13.131:

'An object which is brought onto land may be classified under one of three broad heads. It may be (a) a chattel; (b) a fixture; or (c) part and parcel of the land itself. Objects in categories (b) and (c) are treated as being part of the land.'

So the question in the present appeal is whether, when the bungalow was built, it became part and parcel of the land itself. The materials out of which the bungalow was constructed, that is to say, the timber frame walls, the feather boarding, the suspended timber floors, the chipboard ceilings, and so on, were all, of course, chattels when they were brought onto the site. Did they cease to be chattels when they were built into the composite structure? The answer to the question, as Blackburn J. pointed out in Holland v Hodgson (1872) LR 7 CP 328, depends on the circumstances of each case, but mainly on two factors, the degree of annexation to the land, and the object of the annexation."

In the result, the bungalows were held to have become part and parcel of the land.

52. I note that the context in which the question of accretion to the realty arose in that case was very different from this one. In Elitestone it was argued not only that there was a tenancy of the land in favour of the occupier of the wooden bungalows concerned, but also that this was a letting of a dwelling, so as to attract the protection of the Rent Acts. That could only be the case if the bungalows formed part of the realty.
53. In Mew v Tristmire Ltd [2012] 1 WLR 852 CA, wartime landing craft had been converted into houseboats now resting on (but not fixed to) plots of land. The claimant as registered proprietor gave the defendants notices to terminate alleged licences for their houseboats to occupy the plots. The question, as in Elitestone, was whether the houseboats were let as dwelling-houses within the Housing Act 1988, s 1. The Court of Appeal applied Elitestone, but came to an opposite conclusion.
54. Patten LJ (with whom Maurice Kay and Arden LJJ agreed) said:

"41. A structure like the bungalow in Elitestone which is positioned on a residential site for which a rent or licence fee is paid has, from the start, all the attributes of a house and none of the features of removability inherent in, for example, a caravan or a boat. The fact that it is not bolted as such on to the pillars which support it is immaterial. By its very nature it is intended to be a permanent feature of the site. The bungalow was constructed on site from components brought in for that purpose. It was not readily transportable as a unit and its removal would always have involved its demolition or destruction. In these circumstances, it is much easier to infer that the purpose of its annexation was that it should become part of the site.

42. But the same cannot be said of the houseboats in this case. Whatever condition they may now be in, they were, on the judge's findings, structures which could have been removed without being dismantled or destroyed in the process. They also fall into a category of items such as caravans which, as designed, are moveable. When one takes into account the background facts about the ownership of the harbour; the construction and regulation of moorings under the 1963 Act and the course of dealing between BHIC [the freeholder], its successors and the defendants, the overwhelming inference is that the licences or tenancies of the plots did not extend to the houseboats themselves but continued to be limited to the plots and the supporting platforms which BHIC had provided for the owners of the houseboats. BHIC continued in my view to provide facilities for the location of the houseboats at a rent as it was empowered to do under s.15. Such arrangements cannot have been converted into a lease of a dwellinghouse merely by reason of the fact that the defendants' predecessors in title chose to avail themselves of those facilities. The context points the other way."

55. In the present case, there is no question of these huts constituting dwellings, and no question of any protective social legislation applying to the arrangements between the landowner and the occupiers of the huts. The evidence is clear that everyone, but in particular the landowner, at the time considered that the huts belonged to the occupiers who had paid for them to be there, and not to the landowner. More importantly, they are relatively smaller and simpler constructions than residential units such as bungalows. Dr Falcon says in his report that all the huts were assembled on site using pre-fabricated panels, except hut 6, which may have been pre-fabricated and assembled in the same way, but which has now been so altered on site using individual components, and except hut extensions, which may have been constructed on site. I accept that evidence. Huts 1, 6 and 20 were assembled on site by the carpenter/joiner Mr Peters. A firm called Townsend Timber assembled hut 18. It is not known who assembled hut 5. The applicable planning permissions requires the huts to be removed if permission is not renewed.
56. The evidence (so far as it goes) is that huts concerned can be dismantled for removal and reassembly, or even removed whole. Preferring the evidence of Dr Falcon to that of Mr Vincent, as I do, the only finding of likelihood of serious damage in moving a hut now that I make is in relation to hut 6, which was built on site before 1958. And, even in that case, I accept Dr Falcon's evidence that it could have been moved without damage when it was first placed there.
57. However, even if the huts were held to form part of the realty, and then to be subject to tenancies in favour of the occupiers, in the circumstances I am in no doubt that it would have been at least an implied term of those tenancies that the tenant could remove the hut at the end of the term. The evidence of the defendant was clear that the huts could and should be removed by the claimants. The evidence of the claimants was equally clear that they had paid for their huts, and that for them the problem was not that they did not have the right to take them away, but rather that it would damage them too much to do so. In other words, the huts would be so-called tenants' fixtures, as in eg Webb v Frank Bevis Ltd [1940] 1 All ER 247.
58. So it is not a matter of any practical importance in the present case whether the huts formed part of the land or not. However, on the material before me, I consider that they were chattels. This is not because it was clearly the intention of the parties that the huts should not form part of the land (although it was), but rather because there was either no annexation at all or only a very slight degree of annexation (and that in order to protect against movement by the wind), and the huts were when they were first placed there capable of being moved without risk of substantial damage. I do not consider that the fact that materials deteriorate over time, so that moving a hut without damage becomes more difficult, can be allowed by itself to affect the question whether a hut is a fixture or a chattel. In my judgment this was a case of placing the hutowner's chattel on the landowner's land so as the better to enjoy it from time to time for short periods. This is not, however, inconsistent with the existence of a tenancy of the land on which it stands.

The law

59. There are a number of points of law which arise in this case. First of all, there is a question about the significance of the lease granted by the defendant's parents of the rights to quarry under their land. It might be thought that the existence of this lease would make it the less likely, even impossible, for the defendant's parents to wish thereafter to grant rights of a permanent or quasi-permanent nature to hut owners to station their huts on the land the subject of the quarry lease. (I bear in mind of course that huts 1 and 6 were constructed before the lease was granted.) But there was very little evidence of what the defendant's parents thought they were doing in granting the rights that they did to hut owners. And as a matter of law there is no doubt that, when they granted those rights to hut owners, they could have created tenancies (of their reversion) rather than licences. Even if the defendant's parents had retained no title whatsoever to the land the subject of the quarry lease, a tenancy by estoppel could still arise between them and the hut owners if the arrangements between them would otherwise have amounted to a tenancy rather than a licence: see Bruton v London & Quadrant Housing Trust [2000] 1 AC 406, HL.
60. All of the huts belonging to the claimants were constructed and occupied before the defendant became the owner of the land on which they are situated. There is therefore also the potential significance of the successive transfers from the original landowners, via the defendant's parents, to the defendant. In principle, if the arrangements between them constituted some kind of property rights, such as a periodic or fixed term tenancy, or proprietary estoppel, then, subject only to questions of formalities for assignment, to questions of a bona fide purchaser in relation to equitable interests, and also to the possibility of a consensual alteration since the arrangements were originally made, it is the original arrangements which are binding on the defendant, and which must be considered.
61. The defendant contends that one or other of the two notices to quit (23 December 2014 and 10 September 2015) is valid, and gives him the right to possession. The claimants say that neither of them is valid or does. They say that the first notice fails because they have at least a tenancy rather than a licence, and the second fails because the defendant under the terms of the tenancy had no right to give a notice to quit. This requires the court to consider the nature of the claimants' interest in the land, and what right the defendant had to serve notices to quit. The claimants' legal arguments have ranged over tenancy and licence, and also – though unpleaded – the doctrine of proprietary estoppel.

Licence or tenancy

62. The defendant says that the only right which was granted to the original hut owners was the right to station a hut on the land. Accordingly, he says that it was not in any case the grant of a tenancy, but as a mere licence. I do not accept this argument. In Street v Mountford [1985] AC 809, the House of Lords held that the hallmark of a tenancy, as opposed to a licence, was the grant of exclusive possession of land for a term at a rent. Lord Templeman, with whom all the rest of their Lordships agreed, said (at p 818F):

"To constitute a tenancy the occupier must be granted exclusive possession for a fixed or periodic term certain in consideration of a premium or periodical payments. The grant may be express, or may be inferred where the owner accepts weekly or other periodical payments from the occupier."

63. In Bruton v London & Quadrant Housing Trust [2000] 1 AC 406, Lord Hoffmann said of this case:

"The decision of this House in Street v Mountford [1985] AC 809 is authority for the proposition that a 'lease' or 'tenancy' is a contractually binding agreement, not referable to any other relationship between the parties, by which one person gives another the right to exclusive occupation of land for a fixed or renewable period or periods of time, usually in return for a periodic payment in money. An agreement having these characteristics creates a relationship of landlord and tenant to which the common law or statute may then attach various incidents. The fact that the parties use language more appropriate to a different kind of agreement, such as a licence, is irrelevant if upon its true construction it has the identifying characteristics of a lease. The meaning of the agreement, for example, as to the extent of the possession which it grants, depend upon the intention of the parties, objectively ascertained by reference to the language and relevant background. The decision of your Lordships' House in Westminster City Council v Clarke [1992] 2 AC 288 is a good example of the importance of background in deciding whether the agreement grants exclusive possession or not. But the classification of the agreement as a lease does not depend upon any intention additional to that expressed in the choice of terms. It is simply a question of characterising the terms which the parties have agreed. This is a question of law."

64. On the face of it, those three characteristics are present here, in all the claimants' cases. First, whether or not the huts are chattels (which I have already discussed above), in practice they occupy the same space throughout the whole time that they are in use. That means that the land which they sit on is not available for occupation or any other use by the landowner, who is therefore excluded. Accordingly, where a landowner grants the right to another person to site a hut or chalet of this kind, movable in practice only on the termination of the right, on his land, he is in substance granting a right to exclusive possession. Whilst that right subsists and is being enjoyed, the landowner cannot possibly use or exploit the land in any other way. It is in this sense like a claimed easement to park a car in a specified parking space: cf Batchelor v Marlow [2003] 1 WLR 764, CA.
65. The defendant said in evidence that he thought he had the right to burrow under the land. This may be consistent with the quarrying lease, but to my mind it is unreal. And, unlike the kind of licence agreement which was or became current at the time of Street v Mountford, there was no suggestion that the defendant was intending to acquire, and the hut owners were offering, a right in common with the claimants to use and occupy the claimants' huts.
66. It is true that since 2005 the defendant has changed the language of his notices and has sought to introduce a new form of agreement, using the language of licences rather than that of tenancies. There are two points to be made about that. The first is that the nature of the arrangements and the legal consequences to which they give rise will have been established at the time that the hut in question was first erected. Subject to due compliance with formalities rules, and to the bona fide purchase rule, and so on, they will persist through a change in land ownership and indeed of the occupation of huts unless and until they are changed. The burden will be on the person alleging such a change to prove it. Up to 2013, when the revised forms of agreement were first presented, and signed by some occupants, I do not think that the defendant has proved any change in the terms on which the huts are put on the land. And of course the claimants other than the fifth and sixth never agreed to the 2013 agreements, even if others did. And even though the fifth and sixth claimants did sign the Crown Estate version of the agreement, the defendant refused to accept that. So they were never agreed between the parties.
67. The second point is that the language used is not determinative of the legal relationship created. In Street v Mountford Lord Templeman said (at 819E-F):

"Both parties enjoyed freedom to contract or not to contract and both parties exercised that freedom by contracting on the terms set forth in the written agreement and on no other terms. But the consequences in law of the agreement, once concluded, can only be determined by consideration of the effect of the agreement. If the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy and the parties cannot alter the effect of the agreement by insisting that they only created a licence."

68. Secondly, there is the question of the term of any tenancy that may have been created. The claimants argued that, although periodic tenancies might have been created, the landlord was contractually unable to determine such tenancies by giving notice. There is no reference in any document to any express right to such a term. Indeed, the draft licence agreement put forward in January 2013 by the defendant to the claimants provided expressly that the defendant landowner could give notice (originally one month) to the tenant to terminate the licence. Although this was put forward by the defendant on the basis that it simply reduced to writing that which was formerly agreed orally, the case for the claimants was that these terms were quite different from those which they had previously enjoyed.
69. On the evidence, it is clear that in every case before me the right to site a chalet or hut on the land was originally granted from year to year. The rent (more recently referred to as licence fee) was and is payable annually. Accordingly, in the absence of further evidence, the term is a year at a time, renewable automatically: see Javad v Aqil [1991] 1 WLR 1007, CA. According to the defendant, his parents used to give 6 months' notice of a rent increase (see his witness statement at [59]), which would be consistent with a tenancy from year to year. Neither side, however, argued for this. The defendant argued that this was not a case of a periodic tenancy at all, but simply successive licences, alternatively tenancies, each granted for a period of 12 months. In making this argument, the defendant relied on, first, the fact that the rent or fee was set each year and, second, that there was no proviso for re-entry for failure to pay the rent.
70. I do not think the first point is made out on the evidence. The documents show that up to 1960 the rent for huts was £1 per annum. In 1961 it was increased to £10 annually, and in 1970 to £15. In 1976 it was increased to £20, and to £25 in 1977. Thereafter it appears to have increased by £5 per annum every year until the early 2000s. There appear to have been many years before the 1970s in which there was no increase in the sum paid.
71. But in any event in my judgment there is nothing to stop the parties to a periodic tenancy agreeing to vary the rent from time to time, even every year, if they wish. In this case there was evidence from Mr Hort that that was what was happening. The defendant's father from time to time apparently proposed a new rent, which some of the hut owners accepted, whilst others debated, and eventually a new rent was agreed. Mr Hort said that he could not recollect any case where agreement on an increased rent was not reached.
72. As to the second point made by the defendant, the absence of a proviso for re-entry is unsurprising in a case where there are no written documents containing or evidencing the grant of the rights (whatever they were) to the hut owners. It does not mean that there was no periodic tenancy.
73. The claimants argued that the presumption of annual tenancy was rebutted by the period of planning permission granted. Planning permission was granted for different periods at different times. The mere fact that it would be lawful to use land for certain purposes at certain times does not of itself rebut the presumption of an annual or other periodic tenancy.
74. It is correct that, on the evidence, the predecessors in title of the second to fourth claimants were told by the defendant's predecessors in title that they could stay as long as they wished, provided that they paid their rent and behaved properly. But I do not consider that, properly construed against the background, these assurances can be taken to have been anything more than that kind of friendly statements that are made between people who have got to know each other and get on reasonably well. Subject to the possible transfer of rights, what matters here is what were the terms of the original arrangements under which the huts were placed on the land, rather than what the landowner said on an informal occasion much later on.
75. No such assurances are proved to have been made at the outset of an individual landowner/hutowner relationship, but only subsequently (and none at all in relation to the first, fifth and sixth claimants). Moreover, although such subsequent statements were made to particular individuals, to operate for their particular benefit, in my judgment they were not made for the benefit of their successors in title. So, since none of the claimants is an original hut owner, all such assurances (if any) would now be spent. Such later statements may perhaps be important in the context of proprietary estoppel (to which I shall return) but not in relation to whether there was a tenancy or a licence.
76. The claimants also argued that the rights which they were granted by the landowner amounted to tenancies for life, or at any rate for an uncertain period. They said that this was supported by assurances given to the second claimant's father and the third claimant's uncle. This argument relied on the decision of the Supreme Court in Berrisford v Mexfield Housing Co-Operative Ltd [2012] 1 AC 915. I must therefore consider that decision.
77. In that case the appellant entered into an agreement with the respondent (a fully mutual housing co-operative association) to occupy a residential property which the respondent had in fact bought from the appellant when she got into financial difficulties with her mortgage. The agreement provided that it should be determinable by the appellant giving one month's notice in writing to the respondent, but that the respondent could bring it to an end by the exercise of the right of re-entry only in specified circumstances, including non-payment of rent, failure to perform the terms of the agreement, ceasing to be a member of the housing association and the dissolution of the housing association. There was no provision for the respondent to be able to terminate the agreement simply by giving notice (of any length). It was clear that the provision for the exercise of the right of re-entry was in effect a forfeiture provision. When the appellant got into arrears with her rent, such that the respondent was entitled to re-enter, it did not do so. But subsequently it served a notice to quit of just over one month, and then brought proceedings for possession.
78. The respondents' claim failed in the County Court, but was successful on appeal both in the High Court and in the Court of Appeal. The appellant appealed to the Supreme Court, which allowed the appeal, and restored the decision of the County Court. The successful argument was that, although in accordance with the law as stated by the House of Lords in Prudential Assurance v London Residuary Body [1992] 2 AC 386, the agreement could not constitute a valid tenancy in law, nevertheless this agreement in fact, and by combination of certain legal rules, created a tenancy for 90 years. Lord Neuberger gave the leading judgment, with which all their Lordships agreed, although each judge also added further comments.
79. The argument ran like this. Before 1926, the arrangement created by this agreement would have been treated by the law as a tenancy for the life of the appellant, determinable by her before her death on one month's notice, or by the respondent in accordance with the forfeiture clause. Lord Neuberger referred to various authorities in support of this argument: Bracton on the Laws and Customs of England, Littleton on Tenures, Coke on Littleton, Sheppard's Touchstone on Common Assurances and the decisions of the Court of Queen's Bench in Doe d Warner v Browne (1807) 8 East 165, and the High Court, Chancery Division in Re Carne's Settled Estates [1899] 1 Ch 324. From these authorities he derived the proposition that a grant before 1926 of rights of the kind granted in 1993 to the respondent would have amounted to a tenancy (in the modern landlord and tenant sense, and not in the old feudal estate sense) for the life of the respondent, though determinable in accordance with the terms of the agreement before her death.
80. The second stage of the argument accepted by Lord Neuberger was that, by virtue of section 149 (6) of the Law of Property Act 1925, such a tenancy (in the modern sense) would on the coming into force of the 1925 Act have become or been treated as a term of 90 years determinable on the death of the respondent, although still subject to the rights of determination set out in the agreement.
81. Section 149(6) provides (as amended):

"Any lease or underlease, at a rent, or in consideration of a fine, for life or lives or for any term of years determinable with life or lives, or on the marriage of the lessee, [or on the formation of a civil partnership between the lessee and another person,] or any contract therefor, made before or after the commencement of this Act, or created by virtue of Part V. of the Law of Property Act, 1922, shall take effect as a lease, underlease or contract therefor, for a term of ninety years determinable [after (as the case may be) the death or marriage of, or the formation of a civil partnership by, the original lessee or the survivor of the original lessees,] by at least one month's notice in writing given to determine the same on one of the quarter days applicable to the tenancy, either by the lessor or the persons deriving title under him, to the person entitled to the leasehold interest, or if no such person is in existence by affixing the same to the premises, or by the lessee or other persons in whom the leasehold interest is vested to the lessor or the persons deriving title under him:

Provided that—

(a) this subsection shall not apply to any term taking effect in equity under a settlement or created out of an equitable interest under a settlement for mortgage, indemnity, or other like purposes;

(b) the person in whom the leasehold interest is vested by virtue of Part V. of the Law of Property Act, 1922, shall, for the purposes of this subsection, be deemed an original lessee;

(c) if the lease, underlease, or contract therefor is made determinable on the dropping of the lives of persons other than or besides the lessees, then the notice shall be capable of being served after the death of any person or of the survivor of any persons (whether or not including the lessees) on the cesser of whose life or lives the lease, underlease, or contract is made determinable, instead of after the death of the original lessee or of the survivor of the original lessees;

(d) if there are no quarter days specially applicable to the tenancy, notice may be given to determine the tenancy on one of the usual quarter days."

82. Since s 149(6) expressly applies to "any lease … for life … or any contract therefor, made before or after the commencement of this Act", the same conclusion followed even though this agreement had been made after the commencement of the 1925 Act rather than before. It is also to be noted at this stage that "lease" is a term not defined by the Act itself (see s 205), but the context makes clear that it refers to a leasehold rather than a freehold interest.
83. However, in my judgment, the present case is not on all fours with Berrisford. In this case the evidence does not support the conclusion, and I do not find, that the rights granted to the claimant's predecessors in title were rights granted for their lives, subject to possible determination sooner. On the contrary, and as I have already said, they were rights granted from year to year. Any "assurances" made to any of the second to fourth claimants' predecessors in title were (i) at best made to particular individuals in relation to their own personal occupation, and did not enure for the benefit of their successors, and (ii) made after the commencement of the arrangements in question, and formed no part of their terms. And there were no such assurances in relation to the first, fifth and sixth claimants. Accordingly, the reasoning of Berrisford is not applicable. Even if it were, the terms of ninety years thereby created would have been determinable by notice after the deaths of the persons to whom the terms were granted, who are now dead. Such notices have now been given.
84. However, I cannot leave this part of the case without expressing a respectful doubt as to the reasoning of this part of the decision in Berrisford. It has also been the subject of discussion in the recent decision of Hildyard J in Southward Housing Co-operative Ltd v Walker [2016] Ch 443. That case travels over different ground. But it persuades me that it is appropriate to offer the following very brief thoughts.
85. As I read them, the passages from Bracton, Littleton and Coke on Littleton relied upon are referring to freehold life estates in land, and not to terms of years at all. Sheppard's Touchstone makes exactly the point that "leases" with uncertain termination points could make good life estates, but not good terms of years. Re Carne's Settled Estates deals with an equitable life estate prior to 1926, not a term of years. Doe d Warner v Browne is the case of an alleged tenancy from year to year where the argument that a valid term of years could still be created where the landlord had agreed not to give notice failed. Lawrence J pointed out that a life estate could be so created, but also that this was not that. So from these authorities it is clear that a freehold life estate could, and an (equitable) life interest still can, validly be made determinable on some earlier event than death. But these authorities do not, with respect, show that a term of years in the form of a periodic tenancy expressed to be not determinable by one side was to be treated before 1926 as a term of years for life but determinable earlier. So s 149(6) of the 1925 Act could have no application to such a case.
86. I emphasise that the actual decision in Berrisford was in any event justified (as their Lordships said) for another, quite different reason, based on contract between the parties. The Supreme Court held that, if the s 149(6) argument had not succeeded, the contractual promise between the parties not to determine the tenancy could still function as between the original parties, as a contract, even though it could not bind their successors in title. That argument is however inapplicable here, because the facts found are that, although in two cases (huts 1 and 20) such statements were made, they were not part of the original agreement between the parties in those cases, and in any event were not intended to enure for the benefit of successors, so cannot be enforced by them. Moreover, it is hard to see why (on the footing that the promise cannot be enforced in property law terms) the defendant should be contractually liable for what his predecessors in title promised.
87. The defendant also raised the point that the claimants had not pleaded the argument that they were entitled to tenancies for life converted to terms of 90 years. I agree that this was not expressly pleaded. But it is not necessary to plead law, only facts. If the claimants were to allege and prove relevant facts from which 90-year terms followed as a matter of law, that would be enough. In fact, however, in my judgment the claimants have not done enough. They have not (for example) pleaded, much less proved, which are the relevant lives concerned. The claimants appear to argue that the relevant lives were those of the assignees. That is plainly wrong. No one is likely to grant a tenancy to A for the life of some future assignee from A. I have therefore assumed for present purposes that the relevant lives are those of the original grantees. And in each case the original grantee is dead.
88. The defendant argues that there were other problems with the pleadings. However, in light of my conclusion on this part of the case, there is no point in my considering this pleading question further. But I nonetheless make the obvious point that pleading does matter. It matters first of all to establish the issues on which (for example) disclosure will be based, and witness statements will be directed to be served. It matters also to enable the parties to understand the case which is being put and which they must prepare to meet at trial. From the court's point of view, if the pleadings are not complete and clear, the trial is likely to be messy and convoluted. This case at trial certainly was convoluted, and I attribute this in large part to the fact that the arguments of the trial did not follow the way that the case was pleaded in the statements of case.
89. For completeness, I record that, in the present case, the claimants alternatively argued that they had been granted five-yearly periodic tenancies. But the evidence for such an unusual kind of periodic tenancy was slender indeed. It was based on the fact that at certain points in the history of these huts, the planning permissions which were granted by the local authority were for a period of five years, and also there was some slight evidence that the defendant threatened to impose a penalty on late payers of rent if they pay late twice in a period of five years. I reject any such submission on the facts, because (i) it is clear from the "Site rules for chalets 2006" that this rule was only sought to be introduced in 1999, (ii) the parties were reviewing the rents more frequently than before, and (iii) the evidence is simply not enough for me to be satisfied that that was indeed the contractual arrangement in any case. But I also reject the submission on the law. This is because a periodic five-year tenancy would have been required to be created by deed, and there was none in any of the claimants' cases, either on the original grant or on the assignment to a successor (except, perhaps in relation to hut 1, where there was a transfer on death but the will was not in evidence): see Law of Property Act 1925, section 52(1).
90. Thirdly, the exclusive use of the land for a year at a time is granted in return for a consideration. Before 2005, in all of the cases before me, this was invariably described on both sides as "rent". After 2005 it was described on the part of the defendant as a "licence fee", although not always so by the hut owners. The label used for the payment does not matter. In my judgment, in every one of the claimants' cases, the hut owner or owners had a tenancy from year to year of the land on which the huts stood (but no more), together with similar leasehold rights of way to the huts over the track from the public highway.
91. If there were a periodic tenancy granted to the original hut owner, whether of the site alone or of the site to which the hut accreted, the question would arise of what happened when that hut owner transferred his or her rights to a successor. A periodic tenancy, even though created orally within the short leases exception in s 52(2) of the Law of Property Act 1925, can only be assigned at law by means of a deed: see Law of Property Act 1925, s 52(1); Crago v Julian [1992] 1 WLR 372, CA. However, in each case the landlord for the time being has accepted the new hut owner in place of the old, usually in return for a commission on the sale. Whether that amounts strictly to surrender and re-grant of a periodic tenancy, or whether it is an assignment in equity for value which is good at least between the new hut owner and the landowner (even though it might not bind a good faith purchaser from the landowner) is probably not important. At any rate, before me it was certainly not argued so to be.
92. If the legal structure of the arrangements between the landowner and the hut owner were not a periodic tenancy, or indeed any form of tenancy, but a licence, then of course being merely that personal permission which prevents the actions of the hut owner constituting a trespass to the landowner's land, there could be no transfer to the new hut owner of the permission. But the acceptance of the new hut owner in place of the old must involve the granting of a fresh permission.
93. If the huts are chattels, separate and distinct from the land on which they stand, then there would also need to be a transfer of their ownership from the old to the new hut owner. Where (as here) there is no deed, title to chattels passes either when intended to pass under a contract for the sale of the hut, or on delivery with the intention to pass property. Such delivery may occur when the new hut owner takes possession. Or it may be symbolic, such as handing over a key. And in any event transfer of a chattel in equity can be effected orally by way of a declaration of trust.
94. I have already considered above (and rejected) the notion that if the hut owners had tenancies, then they were successive grants of 12 months, rather than tenancies from year to year. My conclusion on this part of the case is indeed that the claimants in the case of each hut had a periodic tenancy (from year to year) of the plot on which their hut (a chattel) rested. I return to the significance of this question below.

Special Portland regime?

95. In the alternative it was also alleged at the trial on behalf of the claimants that there was a special regime for huts such as this at Portland. The claimants relied on what was referred to in their skeleton argument as the "custom of the country": see Hutton v Warren (1836) 1 M&W 466, 475. This too was not pleaded. It was in any event rather faintly supported by the evidence of the first claimant in paragraph 5 of her witness statement and in cross examination, that Portlanders took pride in doing things their way, and also the evidence of the fifth claimant about knowing what he was buying into, because his wife (the sixth claimant) was a Portlander. What the custom actually was, however, was never stated explicitly. In any event it was opposed by the evidence of Margaret Legg, another Portlander, who was clear that there was no such exceptional local custom. In my judgment this evidence is far from enough to establish the was some kind of local custom to which the parties to these arrangements submitted themselves. I reject this part of the claimants' case.

Proprietary estoppel

96. In relation to the (unpleaded) claim in proprietary estoppel, I was referred to the well-known dictum of Lord Walker in Thorner v Major [2009] 1 WLR 776:

"29. … most scholars agree that the doctrine is based on three main elements, although they express them in slightly different terms: a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance (see Megarry & Wade, Law of Real Property, 7th edition (2008) para 16-001; Gray & Gray, Elements of Land Law, 5th edition (2009) para 9.2.8; Snell's Equity, 31st edition (2005) paras 10-16 to 10-19; Gardner, An Introduction to Land Law (2007) para 7.1.1)."

97. The argument at trial for the claimants in summary was this. The defendant (or his predecessors in title) told the claimants (or their predecessors in title) that they could stay as long as they liked as long as they paid the rent, or, alternatively, that the defendant (or predecessors in title) knowing of his (or their) rights and also being aware that the claimants (or predecessors in title) mistakenly believed that they had more security than they did, failed to disabuse them of their error, when he (or they) saw them pay inflated prices, based on the mistaken belief as to security, for their huts. In either case, it is said that the claimants relied on the "promise" to their detriment.
98. The primary problem with the claim in proprietary estoppel in the present case is the need for a clear assurance on which the promisee is intended to and does rely. Here the evidence does not persuade me that any relevant landowner at any time clearly promised any hut owner, intending it to be relied upon as a promise, that, if the hut owner paid the rent and obeyed all the rules, the hut owner could stay indefinitely.
99. In my judgment the only statements of anything even remotely approaching that were made by the landowner to the second claimant's grandfather and to the third claimant's uncle, so in relation to two huts only. But these were made only some time after the arrangements had been entered into, and only as part of the general friendly relations which had sprung up between the landowners and particular hut owners. In my judgment they were simply not intended on the part of the landowners to exclude their ordinary landowners' rights in the way contended for by the claimants. But even if they had been, they would have been made in the context of a particular relationship, between the particular landowner and the particular hut owner. It is not alleged that any such assurance was made to any of the present claimants personally, but only to the predecessors in title of the second to fourth claimants.
100. It was suggested in argument that these promises were made generally to all hut owners. There is no evidence that that was so, and I reject it as a matter of fact. As I have already held, any such assurances, even if intended to be binding, made to predecessors in title were made to them personally, and were not intended to enure as property rights for the benefit of their successors in title.
101. Mr Walder for the claimants also argued that the promise by the defendant (or his predecessors) was to give up the legal rights which he or they had (that is, to bring the tenancy to an end). On the facts, this is no better. There were no promises of this kind made at the outset of any of the landowner/hut owner relationships. Even when the particular statements were made, in only two of the cases before me, they were not intended to be relied on to affect legal relations. And in any event they were personal to the addressees, now dead.
102. I accept that the 'promise' element of proprietary estoppel may however be satisfied by a failure by the landowner to speak out. But this can happen only when there is otherwise a duty on the landowner to do so. However, for such a duty to arise it requires that the landowner should be aware of his own rights, and also aware that the "promisee" mistakenly believes that the landowner is promising some interest, on the faith of which "promise" the "promisee" is acting to his or her detriment.
103. That is not this case. The defendant in this case knew what his rights were. But I find that he was not aware of any such mistaken belief by any of the claimants in reliance on which they were acting to their detriment. Certainly, they never put it to him and asked him to comment. As to his parents, there is no evidence to show that they were aware of any such mistaken belief by the claimants or their predecessors in title either. The defendant's evidence was that huts changed hands at high prices because of "hope value", and that he understood local estate agents to be telling prospective purchasers of huts that "it is unlikely that any of the land owners would ask them to remove their Huts providing that they pay the rent/Licence fee" (see his witness statement at [70]). In my judgment that would simply not be enough.
104. So the proprietary estoppel claim fails at the first hurdle. But there are difficulties with the rest of the argument too. When the claimants acquired their huts, they did not make enquiry of the defendant (or his predecessors in title) as to the "promises" allegedly made, although it would have been easy to do so. I am not satisfied that the claimants relied to their detriment on any such promise as is alleged, merely by paying (if they did) higher prices than they would have done if they had known that they had less security.
105. Graham Thorne, in a letter to the defendant's solicitors dated 3 May 2017, said:

"The reason why people have been prepared to pay considerable sums of money for the huts would be down to their being able to retain the hut on the ground on a renewable yearly licence/lease and not worry that the hut may need to be demolished/removed at the end of a period of time and also, the ability to sell the hut to either the owner or others, as per the original site notes. We would call this difference the 'marriage value' with the hut owner being prepared to station a hut on the land, retain its value and the possibility it could increase.

[ … ]

If it becomes a known fact that the huts could be removed due to any of the above reasons, the premium that is now paid will be substantially affected. However, if the lease/licence included the ability to renew or a longer term lease/licence was granted with satisfactory terms to both parties but with an owner of the land retaining rights to evict due to non-payment or unmaintained condition of the heart, then the existing premiums should be maintained with an advantage to both parties."

106. Unfortunately, Mr Thorne does not support by any transactional, or even anecdotal, evidence his statement that the high prices commanded by huts are based on the belief in the existence of strong security rights and that the realisation by prospective purchasers that those rights are less strong will substantially affect the premium now paid. If there were such evidence, I would have expected him to deploy it.
107. In contrast, in paragraphs 122 to 126 of his witness statement, the defendant gives evidence of transactions of which he is aware in which huts have changed hands at prices which do not seem significantly different from those which were obtained before the litigation. He says

"the signing of a written license agreement does not seem to have affected the value of the huts on my land and it does not seem to have made any difference as to whether the hut owner signed the 'Lee' agreement or the 'Crown' agreement."

He also says

"further, the amount of rent payable does not seem to affect the price at which huts sell".

108. The example transactions to which he refers may be right or may be wrong (although I record that no effective challenge was made to them in cross examination) but the fact is that Mr Thorne gave no examples at all to back up his bald statement. In the circumstances, I can place no reliance on what Mr Thorne says as to the effect on the commercial value of huts of a perceived lack of security of tenure.
109. Although on the facts I have found it does not strictly arise, I want to add a particular word in the question of unconscionability. Modern authorities make clear that this is to be the touchstone for the question whether a proprietary estoppel has or has not been raised in a particular case against the defendant. The question, it seems to me, is whether it is unconscionable for one person to grant another right to station a hut on the first person's land, for which hut the second pays (let us say) £20,000, or even more, but in any event a significant sum, and then by notice terminate the right at the end of the year (if it is a periodic tenancy), so that the hut owner must find another place to station the hut, or sell it to a purchaser who can agree the right to station with the landowner (but paying the landowner 15% commission)?
110. My answer is No. The parties went into this with their eyes open. The deal is clear. The landowner owns the land. It is poor land, which cannot be farmed and cannot be developed. The hut owner owns the hut. If the landowner behaves capriciously, his or her land will be rendered unattractive to hut owners, compared to other land. And the landowner's economic interest is after all in letting the land, since it has no other practicable exploitation. The hut owner's interest is in stationing the hut for the long term. But if the hut owner pays the rent and observes the rules, in practice there is no problem. In my judgment this is not unconscionable. Neither party is taking advantage of the other. There is no reason whatever for equity to interfere with the parties' bargain.
111. In my judgment the claimants in each case had, not a licence, but a tenancy from year to year, of the plot on which their individual huts stood. So the notice of 23 December 2014, giving notice of less than half a year, was of no effect in law. On the other hand, there was no term in the tenancy agreement to the effect that the landlord would not give notice to quit so long as the rent was paid. Hence the notices to quit dated 10 September 2015 would be effective to terminate the tenancies from the end of March 2016. Moreover, in my judgment the claimants do not satisfy the requirements for there to be any kind of proprietary estoppel in their favour. It follows that they no longer have any right to station their huts on the defendant's land.

A pleading issue

112. However, there is a pleading issue on the statements of case. This is whether the defendant can initiate a claim for a declaration by way of counterclaim in relation to a notice to quit before it has expired. As I have already said, the claim forms issued on 1 September 2015 by the claimants for a declaration that the notice to terminate the licenses given on 23 December 2014 was of no effect. That was followed by a further notice dated 10 September 2015, given, without prejudice to the earlier notice, on behalf of the defendant to all of the claimants separately, as a notice to quit a periodic tenancy as from 31 March 2016. This was pleaded on behalf of the defendant landowner in his defence and counterclaim in the action, dated 30 September 2015. Under CPR 20.4 (1),

"the defendant may make a counterclaim against the claimant by filing particulars of the counterclaim".

113. So the counterclaim is made at the time of filing that statement of case. It does not date back to the date on which the claim form was issued. Accordingly, for the purposes of the rule that a cause of action should be complete at the time that the claim is issued, the cause of action in the counterclaim based on the notice dated 10 September 2015 would not be complete until 31 March 2016, when the notice expired. So it would not be complete as at the date when the counterclaim was made, ie 30 September 2015.
114. The caselaw on the question whether the court may allow a claim to proceed though the cause of action on which it is based was not complete at the date the claim was issued unfortunately does not speak with one voice. Some authorities say a claim can be amended to include a cause of action which did not exist or was not complete at the date that the claim form was issued. Other authorities say that it cannot: see eg Haastrup v Hasstrup [2016] EWHC 3311 (Ch), [46], where some of these authorities are discussed. In the context of a notice to quit, however, it appears that authority is in favour of allowing the claim based on such a notice to quit to go ahead: Mew v Tristmire Ltd [2012] 1 WLR 52, [44].
115. In any event, however, this is not a case in which a party claims an immediate remedy, such as an order for possession, or damages, in respect of a cause of action which is not yet complete. Instead, the defendant counterclaims for a declaration as to his rights on the expiry of the notices referred to. In other words, his claim is in essence a future claim. Of course, the court does not answer academic or hypothetical questions: Ainsbury v Millington [1987] 1 WLR 379, HL; Welch v Welch [2016] EWCA Civ 1208, [5]. It deals only in real questions. But where litigation is already on foot between parties as to their rights, and the defendant serves a notice which (if valid) will affect those rights, and a real question between the parties is clearly going to arise on its expiry, it makes no sense to insist on the defendant waiting for the expiry of the notice before starting a counterclaim, if all that is sought is a declaration as to the position on the expiry of the notice. A declaration can be sought and made whether or not any other remedy is claimed: CPR, rule 40.20. Indeed, the declaratory jurisdiction is exerciseable when no other relief is or can be claimed: Guaranty Trust Co of New York v Hannay [1915] 2 KB 536, CA. So I conclude that I can and should take into account the second notice to quit expiring at the end of March 2016, in deciding this case, at least in relation to the question whether the court should make a declaration, as sought by the defendant.

Standing of the first claimant

116. I must also notice an argument by the defendant in relation to the first claimant and hut 5. The defendant's defence is that his only agreement was with Mr Dallas-Middleton, and not with the first claimant. Any transfer from Mr Dallas-Middleton to the first claimant should (according to the "site rules") have had his prior approval. But it did not. That therefore denies the first claimant's standing in the present proceeding in relation to hut 5, even if she had some kind of beneficial interest in the hut. In the circumstances that I have found, of course it makes no difference at all. But I should shortly state that I reject the defendant's argument on this point.
117. There is a question first of all whether the facts support the argument, ie whether the agreement was indeed only with Mr Dallas-Middleton, and whether the transfer to the first claimant had the defendant's approval. I have already referred to the email of Carole Nealey to the defendant of 9 August 2010, referring to Mr Dallas-Middleton buying the hut "with others". But it is not necessary for me to decide these matters.
118. It is perfectly clear in our modern law that the equitable or beneficial owner of a property right (or a share in such a right) has standing to bring legal proceedings to protect that right, although it would be wrong for the court to make a final order in her favour without first joining the legal owner as a party, either as a co-claimant (if willing) or as a defendant (if not): Performing Right Society v London Theatre of Varieties [1924] AC 1, HL. We no longer inhabit the pre-Judicature Act world where equitable owners were barred from the courts of common law. At most, therefore, the proceedings would have been held up for a short while to enable Mr Dallas-Middleton to be joined.

Conclusions

119. My conclusions are these. First, the claimants all enjoyed periodic tenancies from year to year of the plots of land on which their huts (which remained chattels) stood. Those periodic tenancies have now been determined by the second notice to quit, as of 31 March 2016. The first such notice was ineffective because it was not long enough. Second, none of the claimants is entitled to raise a proprietary estoppel against the defendant.
120. I see no objection to the court's granting a declaration as to the rights of the parties in the light of my conclusions above. The defendant did not in his counterclaim claim possession, although he did claim damages for trespass. I am not clear that, assuming that I thought that that was the right thing to do, I have the necessary information to enable me to assess such damages. In these circumstances, I think it appropriate to receive further submissions from the parties as to the form of the order which I should make in light of my judgment. These submissions can either be made at the time of the hand down of this judgment or (if it is more convenient for the parties) in writing, so that I may determine the matter on paper.