The case of Holland v Oxford City Council  EWHC 2545 (Ch) involved the fundamental question of whether occupation of land constituted a tenancy or was merely a licence. The context, however, was rather unusual in that in related to sites occupied at a fun fair.
The Claimant, Mrs Holland, occupied two sites, 129 and 130, over a number of years at the annual St Giles Fair in Oxford (“Fair”). Mrs Holland’s case was that she had an annual periodic tenancy of the two sites for the “Fair Period”. This was the period which included the Sunday before the Fair started, the two days of the Fair and the Wednesday after the Fair had finished.
The Fair takes place each year on the first Monday and Tuesday following the 1st September (1st September being the feast of St Giles). The Fair had been organised for many years by the Defendant, Oxford City Council (“Council”). However, the land on which the Fair takes place is not within the Defendant’s ownership.
The dispute arose due to a complaint by an adjoining site holder that Mrs Holland’s attractions were too big for sites 129 and 130 and that one of her attractions, “Equinox”, had encroached onto part of the adjoining site. As a consequence, the sites were re-measured by the Council and they determined that the frontage of site 129 was 68 feet (rather than the 69 feet indicated on historic plans) and that the frontage of site 130 was 33 feet rather than 36 feet. In 2013, Mrs Holland applied to bring a new attraction to the Fair, the “Cyclone”. The Council did not allow Mrs Holland to bring that attraction to the fair as it would not fit onto site 129. She instead brought a different attraction, which she stated ran at a loss in that year. Mrs Holland applied again in 2014 to bring “Cyclone” to the fair and she was again met with refusal. In that year and in 2015, she left site 129 vacant.
Mrs Holland sought damages for breach of covenant in respect of her quiet enjoyment of the site.
The Council denied that Mrs Holland had a tenancy; it was its case that she had no more than a licence, granted annually, in respect of the sites she occupied at the Fair. The Council put Mrs Holland to proof as to the alleged loss and damage, arising out of any breach of covenant, and any steps she had taken to mitigate her loss.
Mrs Holland was of a Showman family and she was a member of the Showmen’s Guild, which is a trading association for the travelling fairground community. In order to avoid, or limit, competition over fairground sites, the Showmen’s Guild has developed certain rules whereby a member who has occupied a site at a particular fair year on year, will be entitled to, and have priority over, another Guild member unless and until they cease to use the site or until their right is given up or transferred to another Guild member.
At established fairs such as the St Giles Fair, the majority of the major site holders are Guild members. However as the Council is not a Guild member, they are not bound to give effect to the rules of the Guild. However, the Council did manage the Fair with those rights in mind such that, year on year, the same Guild member would ordinarily occupy the same site. Nevertheless, an application is required each year for the allocation of a site. The Council explained that on receipt of an application, they would give consideration to the type of attraction the applicant wanted to bring to the fair. The Council would not allow an attraction which would not fit on to the relevant site. Upon approval of an application, the applicant was required to pay the annual toll. This is based on the nature of the attraction, not on the size of the site. Upon the receipt of the relevant toll, the Council would send a letter of authority to the applicant in respect of the site or sites to which the toll related. The letter of authority was subject to Conditions of Letting.
The Council drew the Court’s attention to several of the letting conditions as being material to the status of Mrs Holland’s occupation of sites 129 and 130; namely that:
1. there was no right of re-entry or any overt reservation of any right to the Council to enter on to the site;
2. the allocated sites were subject to any road lamps or other street furniture; and
3. site holders be prepared to close down and move their stalls in the case of an emergency.
Although the parties agreed that the question of lease or licence was a matter of substance, not form, at least one of the conditions referred to site holders as “tenants of the fair”.
The parties were in dispute about whether the occupation of each of the sites gave Mrs Holland exclusive possession during the Fair Period. The Court held that public access to the sites was not material to the question of exclusive possession; there was an implied licence for the public to enter onto the site to view and use the attraction.
The Court considered the arrangement between the Council and Mrs Holland and the Conditions of Letting and held that the arrangement did not give rise to exclusive possession. It was held that Mrs Holland’s occupancies took effect by way of licence, granted annually upon the terms attached to the letter of authority. The Court held that Mrs Holland had no legal entitlement year on year to the allocation to her of site 129 or site 130 although she may have had contractual rights pursuant to the Guild.
As a consequence, Mrs Holland’s monetary claims for breach of covenant failed; as a licensee, she did not have the benefit of an implied covenant for quiet enjoyment upon which her monetary claims were based.
3 Practice Points
· In circumstances where parties want to be certain that an arrangement is not a lease, but a licence, they should ensure that the agreement does not contain provisions such as a forfeiture clause or a covenant for quiet enjoyment.
· It is important to remember that a court will always look at the substance of any agreement for occupation and not just at what is said on the face of the documents.