This popular and widely read blog acts as a Legal Commentary on issues affecting Town & Country Planning including recent changes in planning legislation and judicial rulings in planning cases, as well as some thoughts on other issues arising in the course of my work as a Planning Lawyer. It was originally intended mainly for fellow planning professionals, but all are welcome to read it. The views expressed are my own and nobody else’s.
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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” the Third Edition of which was published by Bath Publishing in October 2019. You can order your copy by clicking on the link on the left-hand sidebar of this page.
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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
Well, in Welsh Wales we have something called 'One Planet Development', you can build a dwelling alognside your potatoes. However, the temporary dwellings don't appear to pass muster with the building regs people because they are often some sort of barn. So, in Wales if you are a farmer you can build a home anywhere you like and if you want to enjoy the Good Life you also have a chance if you can afford the cost of all the paperwork required BUT the homeless and the ones who need rented accommodation are not being... er.. accommodated.
ReplyDeleteA gap of 11 months may be rather a long time to wait before responding to a comment, but I have only recently had some close-up experience of the concept of 'One Planet Development' in Wales. Suffice it to say that the criteria are extremely strict and it appears to me next to impossible for most developments to meet them. I suggest that gaining planning permission for a 'One Planet Development' in Wales is going to be truly exceptional and therefore quite rare.
ReplyDeleteThis is an edited version of a comment (or query) received from “Dani-mummy” on 12 August, together with my reply.
ReplyDeleteIn the post above, I wrote: "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." The question which has been posed is - Under what circumstances would this actually happen - for example if there is a Cert of Lawful Use as the condition hadn't been complied with for 10 years is it likely the council will notice that is is now being complied with? From a legal perspective, for this to actually happen – i.e. for it to be complied with by a future occupier on whom would be the burden of proof? Would the council challenge an occupier and if so exactly how long would they need to be in occupation in compliance -1 day or is there a term? Presumably they'd have to fully comply - sole or main income etc as the wording originally provided. ‘Dani-mummy’ is trying to ascertain exactly where the provisions which specify the conditions under which an agricultural occupancy condition with a certificate of lawful use in place could be reinstated.
If the agricultural occupancy is complied with after an LDC has been issued, that will have the effect of abrogating the LDC, which cannot later be ‘revived’. Compliance with the ag. occ. condition sets the clock back to zero. So a further breach after that would start from scratch, and in those circumstances the LDC would be of no effect whatsoever. Whether the Council notices what is going on is beside the point. The law is blind, and will operate in any event. A void period of only a few weeks will not probably not affect the position, but ‘active’ compliance with the condition (i.e. actual occupation by a person wholly or mainly employed locally in agriculture) even for a very short period may well do so. It is true, however, that the person in question would have to comply ‘fully’ with the condition (sole or main income etc, as the wording originally provided ) in order to bring the certified breach of condition to an end.
im after some info to do with agricultural ties .... i have been watching a property for the last 3 years and done alot of research to trace owners of it ect as its been empty for the last 7 years and now is in a very poor state its going through probate aswell.
ReplyDeletenow ive been told by the council it has a tie on it and i know the woman who lived in it was widowed so does this mean the she was in breach of this tie ? im unsure if her husband was a farmer either ? however the property is next to a working farm. i am not a farmer and only wish to do the typical few chickens pigs horses and veg plots and a farm shop to sell all of the above produce and a comunity play area for the local kids my other half would also like to run a garage on the site too if i could purchase it but i am unsure if i could live there and just ignore the tie ? and do any of the above ?? any help would be very much appreciated
If the property has been unoccupied for the last 7 years, there has been no breach of the agricultural occupancy condition during that time! So, anyone moving into the property now who does not comply with the condition will be starting a fresh breach of condition, which will not become immune from enforcement for another 10 years. The local planning authority could take enforcement action against this new breach of condition at any time within that 10-year period.
ReplyDeleteCompliance with the usual wording of an agricultural occupancy condition requires that the occupant should obtain most (if not the whole) of their income from agricultural work. ‘Hobby’ farming of the sort mentioned in this enquiry would not count. But it would be worth checking the wording of the planning condition, as some early occupancy conditions were not so carefully drafted as more recent conditions. Commercial use (e.g. a garage) would require planning permission, which might not be easy to obtain.
Hello Martin,
ReplyDeleteThank you for the very informative article an answer, I have a suplementary question.
We own a property with an Ag tie and qualify as I am employed to work on a Farm. Due to family finances I am changing career away from Agriculture so none of the residents will comply with the condition. We don't want to move home, what powers do the planning authority have to make us move.
Thanks in advance
Regrettably, time does not permit me to discuss Anon's query regardiing the agricultural tie, as this clearly requires careful consideration based on its precise facts. However, it is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.
ReplyDeleteI have lived in a property for nearly ten years, I got it in my divorce settlement, though have still not taken actual ownership, ie signed documents etc. What I would like to know is, how do I find out whether the property does actually have a tie? I've been told it has, but don't see any proof.
ReplyDeleteIn order to find out whether or not there is an ‘agricultural tie’ (an agricultural occupancy condition) that affects the property, it will be necessary to find a copy of the planning permission under which the property was originally built or any subsequent planning permission for further development on which such a condition might have been imposed.
ReplyDeleteIn theory, it should be possible to find relevant planning permissions by entering the full address (and/or post code) of the property in the planning permissions search page on the council’s website, but it may well be that only more recent planning permissions have been uploaded on the website. In that case, it would be necessary to search in the council’s paper records for an earlier permission, but there are a number of cases in which pre-1974 records have not been preserved.
Strictly speaking copies of any relevant planning permissions should have been placed with the deeds of the property and so it may be worth having a careful look through your deeds. If it has been preserved, your solicitor’s purchase file may also contain copies of relevant planning permissions.
Another clue may be found in the Local Land Charges Search made when you bought the property (which should be with the deeds, or may still be in the solicitor’s purchase file). This should show brief details of any planning permissions, especially those containing conditions, which might assist in finding copies in the council’s records.
If the property mentioned in this most recent query does have an agricultural occupancy condition, then if it has been occupied continuously without compliance with that condition, the breach of condition will become lawful after 10 years’ continuous occupation in breach of the condition. (It is occupation, not ownership, that counts.)
Hi Martin, great resource and thanks for making it available.
ReplyDeleteMy question is that we have found a property that has an ag tie on it which we wish to buy and extend. I found the ag tie when doing research on the council's planning site. The owner claimed they didn't know about it, though it was their father that built it in the 60's, so we paused whilst they dealt with this.
They have just got an ldc agreed by the council.
I asked the council about what was possible in the way of extension and they referred to ag tied buildings having to be below 120m2, however they also made some helpful suggestions about dormers, etc.
With the LDC in place, does this change the 120m2 limit and even if it doesn't, can we challenge it successfully.? Next to this house is a whopping great nursing home that has succeeded in getting repeated massive extensions to it.
We basically want to convert the roof and create another bedroom for the children.
Any advice appreciated.
This question does not admit of an answer in this forum, as it clearly requires careful consideration based on its precise facts. However, it is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.
ReplyDeleteHi,I live & farm a 100 acre property with an ag Tie.
ReplyDeleteI have been advised that all the permitted development rights have been removed from the property.
Can you advise whether the removal of such rights applies just to the dwelling house or the land as well?ie,do we need full planning permission for ag buildings or not.The planning office are not helpful your advice is appreciated.
The answer to Pam’s question will depend on a reading of the planning permission. The relevant condition (or conditions) should make it clear precisely which permitted development rights are removed. It is unusual to find a condition that removes all permitted development rights. The condition in question should refer to the part or parts of the Second Schedule to the General Permitted Development Order in respect of which permitted development rights are withdrawn.
ReplyDeleteOne question that occurs to me is whether the agricultural use and the residential use are actually continuing on one and the same planning unit. I rather doubt this. Permitted development under Part 6 (Class A) (including new agricultural buildings) can only be carried out on agricultural land comprised in an agricultural unit of 5ha or more and must be reasonably necessary for the purposes of agriculture within that unit. Limited development under Class B (which does not include the erection of a new agricultural building) is also permitted only on agricultural land comprised in an agricultural unit (in this case between 0.4 and 5ha) and, again, must be reasonably necessary for the purposes of agriculture within that unit. In both cases this means an existing agricultural business.
hi
ReplyDeletei.ve worked on a farm for 30 years up to the age of 47 i then left the farm to work as an agricultural engineer. Part of my duties is to demonstrate machinery to various farmers does this qualify me to buy a house with an ag tie
This question would require an examination of the precise facts relating to the work actually carried out, for which purpose we would require to be formally instructed but, as the questioner clearly recognises, there must be a significant doubt as to whether they would qualify as a person “solely or mainly working in the locality in agriculture”.
ReplyDeleteHi Martin, I understand that when it comes to agricultural ties and other similar restrictions, it is the exact wording of the tie that counts, rather than what the planners meant. For example, if the tie missed out the words "and their dependants" and you lived in the tied property with children, you would technically be in breach of the condition and able to apply for an LDC after 10 years.
ReplyDeleteIn answer to Richard (24/02/14), I would not necessarily agree that living with dependants would represent a breach of the AOC in question, provided that the breadwinner is employed or (if retired or unemployed) was last employed locally in agriculture. I appreciate that the recommended model condition does include a reference to “any resident dependants”, but the omission of those words does not appear to me to materially alter the purpose and effect of the condition. I would be very surprised if anyone could successfully argue that living in the property with resident dependants in these circumstances for 10 years or more would then render the occupation of the dwelling without compliance with the AOC lawful. I wouldn’t rate Richard’s chances of obtaining an LDC on this basis!
ReplyDeleteFollowing the GPDO amendment which will come into effect in April 14 regarding conversion of ag buildings to residential, could this make it easier to remove an existing ag tie for example?
ReplyDeleteIt is too early to say whether the change in the permitted development rules is going to make it any easier to remove agricultural occupancy conditions in future. I can see that it might be an arguable point, but I am sure that LPAs will remain extremely reluctant to let them go.
ReplyDeleteMy name is Linda and in 2000 my husband and I, 4 children, my Mum, Grandma and disabled sister bought a unused nursery with an ag tie. We bought the property situated in the North East without the need of a mortgage. The property consists of a large bungalow on 3 acres and glasshouses. I didn't have any agricultural background but had a meeting with the local planning department and were satisfied that as I was at college studying Nursery Option and our intention was to open the nursery we met all the restrictions. However, we closed the business in 2011 due to the business not being viable any longer. We had a buyer who works in horticulture but decided not to buy in the end. We have another buyer who does not comply with with the restrictions. They have ponies, they would like to grow their ow veg and look after the land. My question is can the ag tie be changed to equestrian use?
ReplyDeleteMy answer to Linda Simmons (19/04/14) is inevitably that she will have to ask the council whether they would be prepared to consider a change of use. Equestrian uses do not come within the definition of agriculture, and the attitudes of local planning authorities can range from being downright hostile to being quite relaxed about this sort of development. The same applies to tied accommodation associated with equestrian uses – it all depends on the attitude of the council in each area.
ReplyDeleteI bought a property in Monmouthshire three years ago with four acres and an ag tie. I've discovered that when the bungalow was built and under its ag tie condition it held over sixty acres. The previous owner only wanted four which they purchased and the original owner selling off the remaining sixty plus acres. This has made it very difficult to comply with the spirit of the ag tie. Would I have an argument for its removal. In essence the ground is no more than a very large paddock and certainly not economically viable as an ag tied holding. Secondly the ag tie was for a holding with sixty plus acres not the four I have.
ReplyDeleteThe size of the holding is irrelevant to the application of the agricultural occupancy condition. It would have to be shown (by an appropriate marketing exercise) that there is no demand for an agricultural dwelling even at a discounted price that reflects the existence of the condition.
ReplyDeleteHi Martin
ReplyDeleteI've found this blog very informative and helpful!
We have a property with an Agricultural tie- we have been non-compliant for 10yrs and are applying for a CLEUD. We don't wish to sell but do want to extend the property. We have been given conflicting information- the council planning officer suggests we market the property for 1yr to prove there is no local need for the Occupancy Condition to remain. However ACORUS have advised the CLEUD can allow an incombered sale or used as a "stepping stone" for removal of the condition without the requirement to test the market. Can you clarify the correct legal position?
With thanks
The answer to CAP is basically what I wrote in the original post above. Any more detailed advice would require full professional instructions and supporting information.
ReplyDeleteCan you tell me if, in order to obtain permission to build with an ag tie, that you must work that particular piece of land with the house on it? My partner is an agricultural contractor (crop sprayer), so works for lots of farmers in the area. We only want 1acre for a house and outbuilding to house his agricultural machinery. Thanks
ReplyDeleteIn answer to MMG (17 May), an agricultural contractor may comply with an existing agricultural occupancy condition (although this may depend on the actual nature of their work). However, in order to gain planning permission for a new dwelling in the countryside, it is necessary (in accordance with paragraph 55 of the NPPF) to demonstrate, both that this is needed in connection with a specific existing agricultural business that is commercially viable and that it is essential that the person for whom the agricultural dwelling is to be built must live at or very close to their work on that holding (for example, if looking after an intensive livestock rearing unit).
ReplyDeleteBy its very nature, agricultural contracting work is unlikely to require the presence of the agricultural worker on a permanent basis on one particular agricultural unit, and so a local planning authority would reasonably expect such a person to find accommodation in an existing settlement in the area.
We have run a successful horticulture business for 9 years. We have reinvested heavily and grow several very tender plants for a specialist market. 18 months ago our pre application advice came back positive.. all we had to do was to prove viability and be an existing business with proven need to live on site. In May this year we applied for an agricultural dwelling and there were no objections. The agricultural advisors report states there is an essential need and the business is viable . All of a sudden, from nowhere, the planners are trying to persuade us to accept permission for a mobile home instead. They are saying everyone has to do this in order to prove viability, but we have been established for more than three years . Can they do this? What's the best way to challenge this sudden change?
ReplyDeleteMartin. Do you have any relevant appeal decisions or high court cases that refer to what distance is considered to be last employed full-time locally in agriculture.
ReplyDeleteThe word locally is very important in such conditions because if you are not locally employed in agriculture you are in breach of the condition. Do you agree? If so what distance is considered to be locally? Is it being within sight of sound or is it 10, 20, 30 miles?
Thanks
I am just catching up with some old comments, and in response to the anonymous comment of 1 October, I would draw attention to the point I made in my original blog post that a mobile home is often preferred by the planners as a ‘dry run’ to start with, rather than giving permission immediately for a permanent dwelling.
ReplyDeleteIn answer to the anonymous query of 23 November, I am not aware offhand of any authoritative ruling as to what the confines of “locally” should be taken to be in practice. So I am driven back on the bland assertion that it is “a matter of fact and degree” (!)
ReplyDeleteI have seen a version of the common AOC which refers to employment “in the district”, but I don’t think one can reasonably limit that term to the confines of the LPA’s own area, especially if the agricultural dwelling is located not very far from the boundary with an adjoining authority’s area.
We are 10 days away from living in a property with a Agri Tie for 10 years. We have run a business from the barn situated on the land which does not comply with the agricultural tie. ( It is retail and mail order) The council knows about this but has never enforced the requirement.
ReplyDeletePlease can you tell me i have to do to get the tie lifted from the property totally so that I can sell it without the tie.
If I sell it with a certificate of Lawful developement and the people that buy it are not intending to work within agriculature can they have my certifcate.
Many thanks.
The answer to Joanne’s query should be clear from what I wrote in the original blog post:
ReplyDelete(1) Immunity/lawfulness of the breach of condition depends on continuous breach of the condition for at least 10 years with no void period in that time, and no period when someone complying with the condition lived there, and also without the breach of condition having been concealed (or denied if the council queried the position).
(2) A Lawful Development Certificate will only be of benefit if there is a continuing breach of the condition after the certificate is granted. If the property is empty for any significant length of time (i.e. for more than a few weeks) after the LDC is issued, or if someone complying with the condition lives there at any time after that, this will ‘revive’ the condition, and the LDC will no longer be effective.
(3) Actually removing the condition (by means of an application to the Council under section 73) may not be easy to achieve, as explained in the above blog post, but this would be the only way of killing off the condition once and for all.
So Martin, just to confirm Joanne's query the certificate of lawfulness would go with the property not the people living in the property who had breached the agricultural tie for over 10 years. Our Council is arguing that the Certificate of Lawfulness relates to the occupants only.
ReplyDeleteIn answer to Littlefish's further question, an LDC applies to the use or development in respect of which it was sought. If an LDC is sought and granted in respect of the lawfulness of occupying a property, or carrying out any development, without complying with a specified condition (on the ground that a breach of that condition has continued for at least 10 years), the LDC will continue to apply to that use irrespective of the identity from time to time of the current owner or occupier.
ReplyDeleteWhat the planning officers may have had in mind in the case or cases to which Littlefish refers is that a change of occupier could potentially lead to a ‘revival’ of the condition if, for instance, there had been a significant void period between one occupier vacating the property and another taking up occupation, or if the property had been occupied, at any time since the LDC was granted, by someone who actually complied with the AOC. However, the mere possibility of this does not render the LDC inapplicable unless one of these things has actually happened. The LPA would therefore be entirely wrong to assert that an LDC is personal to the applicant. It will continue to apply until or unless there is a change of circumstances of the kind I have mentioned.
Thankyou, most helpful, and confirmed my thoughts on the subject.
ReplyDeleteHi Martin
ReplyDeleteWe are currently trying to buy a property on an ag tie,I qualify beyond doubt as I work on the family farm surrounding the property.We are waiting to sell our house before we can buy the property but have been told today that an offer has been made by a retired stockman which has been accepted.His partner works with animals but is paid by the council.From what I have read he does probably qualify but I'm not sure?.If he does qualify it would seem to me to be going against the purpose of the ag tie,to create affordable housing for farm WORKERS.
Could you please clarify this point.
Thank you.
The standard agricultural occupancy condition usually refers to a person employed or last employed in agriculture. This wording is specifically designed to allow retired agricultural workers to continue living in a property (or another property having an agricultural tie) after they have retired. This has been the position ever since AOCs were first introduced about 70 years ago. It sounds as though the retired stockman may well comply with the AOC, provided he did not change jobs and do something other than agricultural work before retiring.
ReplyDeleteThe same, incidentally, applies to an agricultural worker who is unemployed. Provided he (or she) has done no other (non-agricultural) work since becoming unemployed, such a person would still comply with the standard AOC. I once won an enforcement appeal on precisely this point, where a pig breeder had gone bankrupt and was no longer working. He was still “last employed” in agriculture, and so still complied with the AOC.
Martin
ReplyDeleteI do qualify to purchase an AOC property on retirement grounds, but confused on procedure. Do I make an offer then seek approval from the council or visa versa. If the latter is there a form or suchlike available. TIA
If a person's personal circumstances are such that their occupation of a property subject to an AOC is compliant with the terms of that condition, there is no need for any application to be made to the LPA. They can simply go ahead and live in then property.
ReplyDeleteIf the position is ever queried by the LPA, a simple explanation of the facts should satisfy them, but if there is any doubt or dispute about this, it can be resolved by means of an application for a Lawful Development Certificate (CLEUD) under section 191. But I see no need to go to the trouble and expense of applying for a CLEUD unless such a dispute ever arises.
Excellent and helpful blog. Many thanks for taking the trouble to post.
ReplyDeleteI am an architect. One of my clients is an elderly farmer living in a big old farmhouse which he and his wife are having increasing trouble managing as they get more frail. It has an agricultural tie on it. They have engaged me to look at the chances of being allowed to build a bungalow for themselves somewhere on their farm. Most of the farming (which is entirely arable) has been sub-contracted to their son in law, but he (my client) still remains actively involved. Their accountant tells them they must remain within the farm boundaries.
Do you have any advice regarding obtaining consent for a second tied property on the farm? Is there anything they might consider doing with their existing house which might improve their chances of getting permission for a another one?
Mike G
Mike G’s question demonstrates the difficulties that arise in these cases.
ReplyDeleteThe fact that the farm is entirely arable militates against the erection of a new agricultural worker’s dwelling on this holding. However, one might perhaps try to persuade the planners that this should be allowed in order to cater for the particular personal needs of the applicants. (A retired farmer, as a person last working in agriculture in the area, would undoubtedly comply with the standard AOC.)
The problem is that the planners might not see any good reason in planning terms why the retirement home would need to be located on the farm, rather than in a local town or village. Any tax reasons for this are unlikely to be accepted by a planning officer as having any persuasive weight.
The planners might also foresee the possibility that a permission for a new dwelling on the farm could prompt a demand to remove the AOC on the existing farmhouse.
So on balance, I can’t suggest a way forward, other than some fairly careful pre-application discussions with the planning officer to explore the possibilities although, in some areas, local councillors might perhaps be sympathetic in a case of this sort.
Hi, I've lived in a property for ten years which has a tie on ,I have had it up for sale for 2 years now and carnt sell due to the tie being on.bought the place ten years ago cash and nobody mentioned the tie only reliesed when I got the deeds and read it, I'm 72 now not of good health and would like to get something smaller ,how can I get the tie lifted thanks
ReplyDeleteThe answer to this question is clearly explained in the original blog post above.
ReplyDeleteAll the details of the marketing exercise should be gathered together for presentation to the local planning authority. I would recommend that a local planning consultant be engaged to put together an application on your behalf under section 73 of the 1990 Act, which would include the evidence of the unsuccessful marketing campaign mentioned above.
Throughout your blog there is no mention of "forestry" as an occupation.
ReplyDeleteMy son has a forestry/tree surgery business which includes a fair amount of tree-felling, clearing and hedge-laying in the locality of a house he has found which is subject to an AOC. The property has a few acres and sheds which would be perfect for storage of equipment, vehicles and materials used locally.
What should he do to be sure that he complies with the condition?
The house was granted PP in 2014 for a cattle rearing enterprise on a much larger unit.
Thanks
Forester's Dad
The answer to Forester's Dad’s question depends on the actual wording of the condition. On the one hand, it is well settled law that “agriculture” does not include forestry, but if the condition is worded in accordance with Model Condition 45, it should refer to “a person solely or mainly working in the locality in agriculture or in forestry……….”
ReplyDeleteSo the first thing to do is to check the actual wording of the condition. If it contains no reference to working in forestry, then a forestry worker cannot comply with the condition in its present form, but bearing in mind that it is standard practice for an AOC to include a reference to forestry, the simplest solution might be to apply to the LPA under section 73 to vary the condition by adding the missing reference to forestry. There ought to be no resistance to this on the part of the LPA, having regard to the wording of Model Condition 45 and accepted practice in relation to AOCs.
There could conceivably be some resistance to the change if the condition in the 2014 permission was intended to be tied exclusively to the cattle rearing unit, but ministerial advice does not encourage the restriction of an AOC in this way.
Hi Martin
ReplyDeleteI assume if a widower has lived in a property in excess of 10 years subject to a tie she couldn't then apply for a certificate of lawful use on the basis that her late husband did comply and she has the right to remain their as his widower?
I am not entirely sure that I understand the anonymous query of 8 May.
ReplyDeleteIf an agricultural occupancy condition is worded in the usual way, and the property was occupied by someone who complied with the AOC, then their widow or widower would continue to be in compliance with AOC if they continue to live in the property.
I think what this enquirer may be asking about is whether the widow or widower could claim that their occupation of the property for more than 10 years would make it lawful to occupy the property without compliance with the AOC in the future. Since, in the scenario that has been predicated, there would appear to have been no breach of the AOC, the answer to that question must be “No”. The 10-year rule has no application where there has been no breach of condition. It follows that if the property is then occupied by someone who does not comply with the AOC, the clock starts at Zero so far as obtaining immunity from enforcement is concerned.
However, if my enquirer is simply concerned to confirm the lawfulness of the widow or widower's occupation of the property, they can apply for an LDC at any time, as the current lawfulness of their occupation stems from their compliance with the condition, and so is not subject to the 10-year rule.
I retired in 2005 owning and running a plant nursery from home full time from 1991 and have lived at the same place since.
ReplyDeleteA few miles away a bungalow has come up for sale with an agricultural tenancy agreement.
Would I be correct in assuming that because I had worked in horticulture until retirement I
would qualify to live there and the wife continue to live there after my death. I have a son currently 9 years old would he be entitled, not working in agriculture, to continue to live there after my wife and I have both passed away.
The answer to my anonymous correspondent of 17 August would depend on the precise wording of the condition and the precise facts of his own employment history (and retirement). This would require professional advice based on formal instructions.
ReplyDeleteHowever, most AOCs do allow for occupation by a person “last employed in the locality in agriculture” or words to that effect. As always, it will be ‘a matter of fact and degree’ as to whether my correspondent would qualify or not. One would also need to determine whether “a few miles away” (as my correspondent puts it) would or would not qualify as being “in the locality” in which he worked.
I have dealt with the question of dependants in another blog post (“Agricultural occupancy conditions and ‘dependants’ on Monday, 28 July 2014), in light of the judgment in Shortt v. SSCLG [2014] EWHC 2480 (Admin).
Thanks for your informative post. A quick question - you say that main employment should be interpreted as main income but is this not interpreting the wording too restrictively? An example - an occupier works 20 hours a week in a non agricultural job but works 30+ hours a week farming the land on the property subject to an agri tie which refers to “main employment”. The occupier earns more money from the former position. Surely they would still meet the conditions of the agri tie because the majority of their working time was in agricultural employment? Many thanks
ReplyDeleteI see the point that my anonymous correspondent of 23 September was making, but I am not sure that I would necessarily agree with his proposition. How can you reliably measure time spent on different activities? Ultimately, this will always be ‘a matter of fact and degree’, but the amount of income earned appears to me to be a more reliable indicator as to whether a person is ‘mainly’ employed in one activity or another.
DeleteHi, I know this is a historical thread but I was wondering if you can help with a question I have regarding agricultural dwelling. Is the condition regarding genuine farming still applicable today?
ReplyDeleteThanks
John
The answer to John's question is - "Yes, it is."
ReplyDeleteIndividual cases inevitably depend on their facts but, subject to that, the principles explained in the blog post above still apply.
As I read the situation and take note of the point of view of various learned persons conclusions and reasoning, it appears prevalent in people’s minds that an Agricultural Tie is associated with the viability of any property in question as regards generating an income which is right thinking as I see it.
ReplyDeleteHowever, the Tie can be solely on a person stipulating that they should be working locally in agriculture or forestry order to comply with the AOC. So, if a person is travelling more than say 15 miles to another agricultural or forestry workplace would this then constitute a breach of the AOC as would the distance to travel be considered local? Could this be the case, even though retirement from the agricultural work has transpired 10 plus years hence? I believe there are also occasions where a former horticulture property is subject to such a restriction although, strictly speaking, horticulture would classify the property as a brown-field property which seems a contradictive situation!
Also, if someone is working in agriculture as a paid hand without a viable income from a farm or smallholding and considering the low rate of pay in such circumstances would they have any chance of purchasing such a property even at the average discount rate owing to the AOC? I would say no because of the rate of pay and deposit that would be required especially if the property has a very small land area that doesn’t allow income generation. I see that, in the current state of play and rising homelessness, such restrictions fly in the face of reality and prevent the use of land that could be better employed for low cost housing or housing generally.
I fear that T.Fury is confusing two separate issues. Where a planning application is made for a new agricultural dwelling in the countryside, there is a requirement to demonstrate a clear agricultural need. The developer (farm owner) must demonstrate a clear operational need for an agricultural worker to live in that location, as opposed to a nearby village or other settlement. If the alleged need for the agricultural dwelling is linked to the requirements of a particular agricultural holding, the commercial viability of that agricultural business must be clearly demonstrated by accounts and other evidence (including a report from recognised agricultural consultants) showing the operational need for someone to be on site or very near, so as to be on call out of hours.
ReplyDeleteHowever, if Mr Fury is referring to an existing dwelling that is subject to an agricultural occupancy condition, then it is merely necessary that the person occupying this dwelling can show that they are wholly or mainly occupied in agriculture in the area. Whether the agricultural business in which they are engaged or employed is viable or not is not relevant in this case; what matters is that the occupant of the dwelling must derive the majority of their income from their engagement or employment in agriculture, meagre though this may be.
I don’t propose to comment on the policy implications of agricultural occupancy conditions, other than to say that they are still very much in use, and are not easily lifted.
Where can I look up the wording of an agricultural clause on a particular property?
ReplyDeleteIf there is an Agricultural Occupancy Condition [‘AOC’] affecting the property, it will be found among the conditions attached to a planning permission relating to the property. Most commonly, this will be the planning permission for the erection of the dwelling, but in some cases such a condition can be imposed when a planning permission is granted for some other development affecting the property.
DeleteA search of the Planning Register should reveal the relevant conditions (for which a visit to the planning department may be necessary). It is possible that the planning history of the property in question can be viewed online, but local authorities vary in the ‘user-friendliness’ of their websites, and digitised records may go back only to 1974 (and sometimes not even that far). Some extant and still enforceable AOCs date from the late 1940s or early 1950s, and may only be found in the council’s paper [or micro-filmed] records.
When a property is purchased, the Local Land Charges search should reveal any planning conditions affecting the property, although full details can only be ascertained by looking up the planning permission on which these conditions were imposed.
hi, i know this is an old thread but wondering if anyone can throw any light on agricultural contractors buying an agricultural tie property. The tie doesnt say anything about 'in the locality' but does say must be employed or last employed in agriculture. Has anyone been successful on this front. We dont have time to apply for a certificate of lawfulness but equally dont want to go ahead and be told we cant live there. This is the only property in the area like this which has everything we need. it has also been empty for a couple of years as not needed for farm workers
ReplyDeleteI can’t answer this question in the absence of full instructions setting out all the relevant circumstances of the case, but (depending on those facts) it is possible that an agricultural contractor might comply with the AOC, but only if the majority of their work really is agricultural in nature, and is not simply part of a general contracting business (involving building, engineering and other non-agricultural work – the fact that the building or engineering work is carried out on a farm or farms does not make it agricultural).
DeleteBefore committing themselves to a purchase, I would always recommend prospective purchasers to take expert professional advice on this issue. Even this would not absolutely guarantee that there would be no problem, and the only way of achieving certainty would be to obtain a Lawful Development Certificate. However, as my correspondent recognises, it is very unlikely that a certificate could be obtained within a timescale that would be acceptable to the parties to a live conveyancing transaction.
The alternative would be for the seller to apply under section 73 of the 1990 Act to remove the AOC, but the local planning authority would require clear evidence that the property has been marketed for at least six months (preferably a year) at a discounted price that reflects the existence of the AOC without any realistic offers being received from persons who would be in a position to comply with the AOC.
thank you so much for your reply. my husbands work is 100% agriculture. he uses his own mill to go onto the farms to mill/crush corn for the animals feed.
DeleteFantastic to see a post that actually has useful advice! A local property has came up with an Ag tie, however the wording stats"..as a dwelling house for a person employed whether in agricultural or some other occupation in the Green Belt."
ReplyDeleteAs a horse riding instructor, working at local stables all within the greenbelt (this & neighbouring council), would this call as an occupation in the green belt? The council arent very forthcoming as resources have been applied to covid response, whilst the estate agent are being cagey due to the fact that I think they are actually trying to have the tie removed.
Thanks in advance
The wording of this condition is a variant I have not come across before. It seems to be far looser than the standard wording, in that it appears to allow occupation by any person employed in the Green Belt (irrespective of whether or not that occupation is connected with agriculture as such). Presumably the intention of the condition was simply to prevent the property being occupied by a commuter. The essential qualification is that the occupant’s employment must be located within the Green Belt.
DeleteIn accordance with the disclaimer set out on the Introduction page to this blog, any view I express here must not be treated as legal advice, and no liability can be accepted for any loss or damage caused by reliance on such comments. It does appear to me, however, that a horse riding instructor, working at local stables situated within the green belt would potentially comply with the condition.
My instinct would be to check all the conditions attached to the planning permission carefully, as they really need to be read together as a group, and attention also needs to be paid to the stated reason for imposing this particular condition.
Many thanks for the detailed response. As you say, it does appear to be a very loosely worded ag tie that we will have to investigate.
ReplyDeleteThanks Again
Mike