Watford Construction Co Ltd v. Secretary for The New Territories
Read the full judgment text of CACV 45/1977 on BabelCite. This Court of Appeal judgment was delivered on 27 March 1905.
1. The question on this appeal is whether the land in respect of which a claim was made to the Lands Tribunal was "ground ... expressed to be demised as agricultural ... ground". The lot was included in a Block Crown Lease dated 27th March 1905 and was the subject of a land resumption notice issued on 21st December 1976. I say that the land was included in the Block Crown Lease because that lease provided that His Majesty demised to the persons whose names were set out in the Schedule or in any
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CACV000045/1977
----------------- Coram: Huggins and Pickering, JJ.A. and McMullin, J. Date of Judgment: 14th August 1978. ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. The question on this appeal is whether the land in respect of which a claim was made to the Lands Tribunal was "ground ... expressed to be demised as agricultural ... ground". The lot was included in a Block Crown Lease dated 27th March 1905 and was the subject of a land resumption notice issued on 21st December 1976. I say that the land was included in the Block Crown Lease because that lease provided that His Majesty demised to the persons whose names were set out in the Schedule or in any Supplemental Schedule signed by the Governor the piece or parcel of ground set out and described in the Schedule opposite the name of each lessee. The names of the predecessors in title of the Appellant (the Claimant before the Lands Tribunal) appeared in a Supplemental Schedule signed by the Governor. Opposite their names the land was set out and described in a way which sufficiently identified it as the land in respect of which the claim has been made, and under the heading "Description of Lot" appears the word "Agricultural". 2. The Crown Lease was in common form and contained a covenant by the lessees that they
If, therefore, this land was by the lease expressed to be demised as agricultural ground it is common ground that it may not be converted into use for building purposes. It is not suggested that grammatically the covenant makes nonsense because "ground" can never be converted into a "use" as distinct from being converted "for" a use, but Mr. Gittins argues that "demised as" in the covenant means "demise for use as". He says this lease was expressed to be a demise "of" agricultural land but not "for use as" agricultural land and thus far I agree with him, but for my part I have never been in any doubt that a demise "of" agricultural land is a demise "as" agricultural land. The argument on behalf of the Appellant involves reading into the covenant something which cannot fairly be implied. The word "as" has many meanings, but I have no doubt that here it is introduced to indicate the quality or description of the land demised. Thus in Fitzpatrick v Kelly (1873) 8 Q.B. 337 the court was concerned to construe a statute which prohibited the selling of milk which was in fact adulterated "as unadulterated". The ratio decidendi is irrelevant to the present case, but the statute indicated the use of the word "as" to denote the quality of the milk which ought to be delivered. There the material words were "sell as" whilst here they are "demised as", but the verbs are sufficiently similar to justify a similar interpretation and these phrases must be contrasted with "used as". I accept that "demised as" is an elliptical phrase, but in the context it clearly means "demised as being land which is or is described as". I am confirmed in this opinion by the fact that for over three-quarters of a century such leases have been construed as prohibiting the use of land which is described in the schedule as "agricultural" for general building purposes. The Claimant's predecessors in title so construed this very lease, for they sought a licence to build, which would have been unnecessary if the land was not expressed to be demised as agricultural ground. 3. In Reg. v Board of Arbitrators ex parte Attorney General (1955) 39 H.K.L.R. 47 and in In re a Compensation Board ex parte Attorney General 1971 H.K.L.R. 338 the courts thought it too obvious for argument that the respective pieces of land were let for agricultural purposes, but I think the reason was not that there were positive covenants so to use them but that they were described as agricultural land and there were negative covenants prohibiting building. 4. I take Mr. Gittins's point that the Block Crown Leases were in a sense forced upon the original lessees, who (one presumes) were already in possession when the New Territories were let to the British Crown. The contra proferentem rule should therefore be applied in all its rigour. Nevertheless this lease must be construed fairly so as to effect the intentions of the parties and I think the construction put upon it by the Lands Tribunal was entirely right. It is nothing to the point that the lease could have been granted so as to make the intention even more clear. 5. I would dismiss this appeal. 14th August 1978. Representation:
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----------------- Coram: Huggins, Ag. C.J., Pickering, J.A. and McMullin, J. Date of Judgment: 14th August, 1978. ----------------- JUDGMENT ----------------- Pickering, J.A.: 6. This is an appeal against an award of compensation made by the Lands Tribunal in respect of land in the New Territories. The compensation awarded was in the sum of $178,300 and was arrived at upon the basis that the land in question was agricultural land. Mr. Gittins, leading counsel for the appellant company, relies upon a single ground of appeal to the effect that the Tribunal erred in finding that the land resumed was demised as agricultural land and could not be converted into use for building purposes so that compensation was to be assessed on the basis that the land resumed was agricultural land. 7. The land in question is in Survey District No. 91 and the Block Crown Lease of that district dated the 27th day of March 1905 states that
8. The Schedule to the Lease contained in respect of each Lot, inter alia, the name of the lessee, the area involved, the term of the Lease and a Description of Lot. Under the heading "Description of Lot" there appears the word "Agricultural" which, says Mr. Gittins, is no more than a description of the Lot as it existed at the time the Schedule was prepared. The Lease contains a covenant by the lessee not to convert any ground "hereby expressed to be demised as agricultural or garden ground" into use for building purposes other than for the proper occupation of the same ground as agricultural or garden ground without the previous licence of His said Majesty or a person duly authorized on his behalf. 9. It is counsel's contention that the demise which I have set out above contains no restriction as to user for agricultural and garden use so that the land not being "expressed to be demised as agricultural or garden ground" nothing exists to which the restrictive covenant as to building can apply. 10. I have found the point appealing but, upon analysis, fallacious. That there was a demise of land is apparent; that the Schedule must be construed as part of the Block Crown Lease is, as it seems to me, equally apparent for otherwise the Lease is meaningless it being only by reference to the Schedule that the identity of the lessees and other important matters can be ascertained. Given therefore a demise of land one has to turn to the Schedule to ascertain what kind of land was demised and from the Schedule it is seen that the land was agricultural land. No doubt a demise simpliciter of land which happened at the time of the demise to be agricultural land would leave the lessee free to change the user and character of the land but a demise of such land which contains a covenant by the lessee not to use the land for building purposes without the consent of the lessor endows the land, in the absence of any such consent, with the permanent character of agricultural land. The effect of the covenant is to effect not merely a demise of agricultural land but also a demise (pending the lessor's permission to build which has not been granted) as agricultural land. 11. The Lease, as Mr. Airey, for the Crown, admits is not happily drawn and it must be conceded that the demise is not expressed to be "as" agricultural land so that the words "hereby expressed to be" are otiose. The fact remains however that whether specifically expressed to be so demised or not, the demise effected was, by virtue of the restrictive covenant, a demise not merely of but also as agricultural land. 12. I would dismiss the appeal with costs. Representation: S.V. Gittins, Q.C. & R.G. Kotewall (Yung, Yu, Yuen & Co.) for Appellant. M.H. Airey for Crown/Respondent. |
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