Monday, 11 July 2011
Agricultural dwellings and other houses in the countryside
The following is an article which took the form of an interview with a journalist which, for reasons which are too complicated to explain, never got published. Having been written for lay readers, it omits the usual references to relevant legislation and to decided cases, but I hope that readers of this blog may nevertheless find it helpful.
NOTE: Since this article was written the General Permitted Development Order has been amended to enable the residential conversion of agricultural buildings. For completely up-to-date and fully comprehensive coverage of the changes of use that are now authorised by the GPDO, and the way in which these are (or should be) handled by Local Planning Authorities, we would strongly recommend readers to obtain a copy of the author’s new book on the subject - ”A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.
Can I ask you about a problem people sometimes come across when they find just the right home out in the country, but it has an agricultural tie on it – a planning condition which says it can only be occupied by someone “wholly or mainly occupied in agriculture”? How can they overcome that problem?
First of all, it’s no good thinking you can get round it by just doing a little bit of ‘hobby farming’ – keeping a few chickens or goats. What these agricultural occupancy conditions mean is that the family’s main earner must make their living from agriculture. It must form the larger part of their income. You will be in breach of this condition if you don’t derive most of your income from some form of agriculture.
The only exception is if you are a retired farmer, but even then the Council would need to be convinced that you did derive most of your income from farming before you retired. The same would apply to a farmer’s widow.
Is it possible to get these conditions lifted? Some of them are quite old, and things may have changed since they were first imposed on a property.
You can certainly apply to the Council to remove an agricultural occupancy condition, but they will be very reluctant to do so, unless you can demonstrate very clearly that there is no longer a need for this type of accommodation to be kept available for farmworkers in that locality.
The property would need to have been on the market for at least six months, or preferably a year (at a substantially discounted price that reflects the fact that it is subject to an agricultural occupancy condition). Only if there were no takers at that price after a genuine attempt to sell it might you then persuade the Council to remove the condition.
I suppose you might argue that because of the way farming has changed, there is no need for so many agricultural dwellings in the area, but I think it would still come down to proving that there is no demand by putting it on the market subject to the agricultural occupancy condition. As I said, the asking price would have to reflect the fact that it was subject to this condition.
After that, you could then apply to the Council to remove the condition, and provide them with the evidence of the unsuccessful marketing campaign.
What happens if an agricultural occupancy condition has not been complied with for a long time?
A breach of condition will become immune from enforcement and therefore lawful if it has been continuously breached for a period of 10 years, and if that breach is still continuing.
But you will need to be able to prove that the breach has continued throughout the 10-year period without interruption.
Can you add together the time a property has been occupied by two or more different owners or occupiers who don’t comply with the condition?
Yes, but only if they have all been living there in breach of the condition, without a break.
If there has been a breach of the condition for several years, and then someone moves into the property who does comply with the condition, this puts an end to that breach. If, after this, the condition is breached once again, the clock starts again from zero, and the earlier breach cannot be counted towards the 10-year period. In other words, you can’t add together two separate breaches of the condition to make up the 10-year period. [The 10-year period might comprise occupation by two or more owners or occupiers during that 10-year period, but only if the breach of condition continues throughout these successive ownerships or tenancies.]
There’s an even more important point to bear in mind. If the property has been unoccupied for a time, then that may count as a period when there has been no breach of the agricultural occupancy condition, so that the clock goes back to zero again if the next occupier is someone who doesn’t comply with the condition. In that case, the previous occupation of the property in breach of the condition wouldn’t count towards the 10-year period.
But supposing a breach of the condition has continued for 10 years or more, does that have the effect of removing the condition altogether?
No it doesn’t. The fact that a breach of condition has become lawful after 10 years does not mean that the condition has been removed. All that has happened is that it has become lawful to occupy the property in breach of the condition. If someone else then moves into the property who complies with the condition, then a later breach of the condition will not be lawful – it will only become immune from enforcement (and therefore lawful) if the fresh breach of the condition lasts 10 years or more.
Can you not get a certificate to prove conclusively that the condition no longer applies?
You can apply for a Lawful Development Certificate (which in this case would take the form of a Certificate as to the Lawfulness of an Existing Use or Development), but that certificate will not say that the condition no longer applies; it will simply confirm that continued occupation of the property in breach of the condition is lawful, which is not quite the same thing.
These certificates can be useful if you need to establish the position beyond dispute. Such a certificate is ‘conclusive’, but that doesn’t mean that it applies for all time. It simply certifies ‘conclusively’ what the legal position was at the time it was granted.
It doesn’t change anything. It doesn’t have the effect of removing the condition. It simply proves that on the date when the Certificate was issued the breach of condition had become lawful. So continued occupation of the property in breach of the condition would continue to be lawful. But the condition would still be there in the background, and could potentially be complied with by a future occupier. If that were to happen the Lawful Development Certificate could no longer be relied upon.
But if the condition has become a ‘dead letter’, then presumably you can apply to the Council to remove it?
You could certainly apply, but most Councils won’t agree to remove an agricultural occupancy condition just because a current breach of that condition has become lawful by having continued for 10 years or more. They would argue that someone might move in who does comply with the condition, and then it would ‘bite’ again.
So there are really no easy answers when it comes to agricultural occupancy conditions?
No. You have to recognise that they are quite an obstacle, and you need to take sound legal advice before committing yourself to buying a property with an agricultural tie on it. Don’t assume you can get round it or get rid of it easily. That is why the price of a property which is subject to an agricultural occupancy condition is usually subject to a substantial discount compared with the open market value.
On a related topic, how easy is it to get planning permission to build a new house in the countryside? What do you have to do to get planning permission?
There are strong planning policies, both nationally and at a local level, which discourage the construction of new homes in the open countryside, even a single house.
There are only two exceptions – the first is a planning permission for an agricultural dwelling. (I’ll come back to that in a moment).
The second, which is fairly rare, is building a substantial house of ‘exceptional’ architectural quality – in effect a modern ‘stately home’. Some planning authorities have been persuaded to give permission for one or two houses of this type, but it is not going to be an option for most people.
So if you are prepared to do a bit of farming ‘on the side’, can you get planning permission for what the planners would call an ‘agricultural dwelling’ ?
The first thing is that there has to be a genuine agricultural need for a new home on a particular agricultural holding. That involves passing two tests.
First, you will need to prove to the planners that there is an existing agricultural business on the holding which is commercially viable, and you will need to produce accounts to prove it, together with an agricultural expert’s report confirming the viability of the business.
Secondly, you will have to prove that it is essential to that agricultural business to have someone actually living on the holding. Most arable farms don’t need someone on site; it is only if you are involved in something like intensive livestock rearing that you are going to be able to justify having someone living on site. Just occasionally, if there have been problems with theft or vandalism, Councils have been persuaded to allow a home on a smallholding, but you really do have to prove a genuine need. Just wanting to live on the property instead of in a nearby village is not enough.
Most Councils will not grant permission to build a house or bungalow right away. They will probably only give you a limited permission for a caravan or mobile home for a trial period, and if you then want to extend that permission or build a permanent home on the site, you will have to convince them that the business is still viable and that the need still exists after that first trial period. I had a client in Somerset once who succeeded in getting a temporary permission for two residential caravans on the site, but the agricultural business failed, and when he tried to get permission for a bungalow or to extend the permission for the mobile homes, the Council refused, and he had to get off the site.
You certainly won’t get planning permission for a home just because you fancy doing a bit of ‘hobby farming’. Even genuine farmers can find it difficult to get over these hurdles.
As regards the position of "dependants" of an agricultural worker living with them, see now Shortt v. SSCLG discussed in my blog post of 28 July 2014.
© MARTIN H GOODALL