Removal of agricultural occupancy conditions Q & A DCP Section 9.4

This section relates solely to proposals to remove or vary the standard agricultural occupancy condition, and related agreements, from dwellings and caravans. Enforcement against breach of the condition is also covered here. Practice matters have a close affinity with the considerations raised at (9.3), but the sheer volume of applications and appeals and the specialised issues raised justifies a separate section in this manual.

Q & A    9.4/10

In the 1980s permission was granted for a dwelling subject to an agricultural occupancy condition because evidence given suggested a local agricultural need. Application has now been made for a Lawful Development Certificate (LDC) seeking removal of the occupancy condition. Evidence given in support of the LDC contradicts that given in support of the original application. It seems probable that their original evidence was false. Is there anything the council can do?

If the council are satisfied that there has been breach of the agricultural occupancy condition for more than ten years, the law requires that the LDC sought should be granted. The fact that the council were misled by the original information given lies outside that process. On the face of it the council has now lost its chance to recover the situation, as it had ten years to enforce against any suspected breach and evidently did not do so.

My client ceased farming in 1972 due to Farmer's Lung and took other work.  I am seeking a Certificate of Lawful Development (LDC) allowing my client to occupy his dwelling without complying with an agricultural occupancy condition, on the basis that there has been ten years breach. The particular version of the condition applied required the occupier to be employed or last employed in agriculture. My client and his wife can show that they engaged in non-agricultural work for eight years until 1980 when they effectively retired from that work. I am having difficulty in finding case law or precedent to support my argument that the level of non-agricultural employment is sufficient. Can you assist?

Clearly your clients have not been "employed in agriculture" for nearly 30 years, and any problem will relate to the definition of the term "last employed". The footnote to paragraph 102 of Circular 11/95 states that this latter term is not intended to refer to someone who was employed in agriculture but now works non-agriculturally on a permanent basis, but does not specifically deal with your client's situation where there has been retirement from this later work. It would seem a reasonable deduction to be made from that advice that your clients could not fall to be "last employed" in agriculture, but like yourself I cannot find a case precedent. Can any reader assist?

Response

In my view all that needs to be proven is that the occupier last worked on a permanent basis mainly in non-agricultural employment over ten years ago i.e. not "last employed in agriculture".  This is a type of case familiar to most development controllers in rural areas. It proves that monitoring of occupancy conditions is essential but probably impractical to enforce. We have tried it with older dwellings subject to occupancy conditions but with little success. Tighter conditions and section 106 obligations which tie the dwelling to the associated land and farming enterprise help avoid such abuses as have arisen here.

Cases still arise where compliance with old style agricultural occupancy conditions needs to be tested. These normally require the occupier merely to be "employed" in agriculture, rather than the current far more stringent "solely or mainly working" provision. Do you have a view on the minimum extent of employment in agriculture that would satisfy the old form of condition?

As you state, the old form of condition referred to employment in agriculture without qualification, and could be interpreted as allowing compliance where the extent of agricultural work undertaken was relatively minor or casual. Appeal cases have shown that the inspectorate have not been entirely consistent in interpretation. The most liberal view that I am aware of came in a case from Surrey in 1990 where a flock of 6 sheep were kept and an inspector observed that the Planning Acts did not specify that an agricultural activity need be in pursuance of a trade or business, nor that a profit had to be made. He was prepared to accept that the extent of agricultural employment required by the condition could be less than the "solely or mainly" level required by the modern form of condition, and in this case 20 hours per week claimed to be spent looking after the flock was sufficient.

What amounts to occupation of a dwelling? The agricultural worker's dwelling in question is furnished. The owner of the dwelling does not satisfy the occupancy condition but visits the property daily to check it is secure, tend the small number of animals who graze land outside the curtilage of the dwelling and to supervise maintenance and improvement works within the curtilage. Typically the owner will spend six hours split between the property and the adjoining land. No doubt during this time the toilet is used and a cup of tea is made in the dwelling. Have there been similar situations where the furnishing, maintenance and use as described has been held to amount to occupation?

The standard agricultural occupancy condition states that "The occupation of the dwelling shall be limited to a person solely or mainly working…in agriculture or in forestry...".  Decisions  as to the meaning of "occupation" have tended to the view that this does not have to be continuous but that there has to be overall control of the property and some physical residence.  A court case having some relevance to the subject is Mitchell and Mitchell v Secretary of State for the Environment and Braintree District Council [1991].

I have a Lawful Development Certificate for the occupation of a dwelling by someone not employed in agriculture thus rendering the agricultural occupancy condition unenforceable. Can there be any sound reason to refuse a section 73 application to remove the condition, as it fails one of the fundamental tests of Circular 11/95.

I can only assume that a local authority which is resisting the formal removal of this condition is nurturing the hope that if in the future the dwelling becomes occupied by someone complying with the condition, any fresh breach thereafter would be enforceable. This interpretation follows the court judgment in Nicholson v Secretary of State for the Environment and Maldon District Council [1997]. Whether it is reasonable decision making to rely on such an extended hypothesis is another matter. I rather doubt it.

I have a client who has a 2 hectare farm and feels that it is too small to be viable. Please could you tell me whether anyone has successfully argued for the removal of an agricultural occupancy restriction because of the small size of the farm?

This situation normally occurs when most of the land has been severed from the holding which originally justified an agricultural dwelling. At appeal an inspector will be looking for any justification for continued imposition based on a) demand for agriculturally tied dwellings in the general area; b) demand related to the particular holding. If a) cannot be shown and the amount, location or quality of the land remaining is insufficient to support a resident farmer who would continue to comply with the condition, then there are good grounds for removal.  However in making his decision an inspector is not obliged to cast around for hypothetical agricultural enterprises that could successfully operate on a very limited acreage, and realistic examples will need to be demonstrated by the local planning authority. Examples of relevant appeal decisions may be found at (9.4322), but an overview of cases in general would suggest that at 2 hectares your clients land holding may well be considered too small to generate the necessary requirement that an agricultural worker could be "employed" there.

I have obtained a lawful development certificate (LDC) in respect of a 10 year breach of an agricultural occupancy condition, and as a belt and braces exercise have submitted an application under section 73 for the deletion of the condition. I acknowledge that there would be a conflict with the local plan but maintain that the LDC is a material consideration. The planning authority is contemplating another approach, that the LDC may have been obtained by false or misleading evidence (although they are not saying that is so in this case), and that therefore it may not be such a persuasive consideration. If this approach were adopted then the value of an LDC for any existing activity would be almost nil?

The content of an LDC as to what is lawful relates only to the state of affairs on the land on the date of the application, and if granted is conclusive in response to any enforcement notice subsequently issued. Under section 194 of the 1990 Act it is an offence to secure a certificate by deception and an Authority may seek a revocation under section 193 (7) in such circumstances. To imply that there might be such circumstances behind every certificate and to determine planning applications on that basis would seem to me to be highly inappropriate and lay the authority open to claims of unreasonable behaviour.

The proper approach must be, as stated in Circular 11/95, to consider the need for the condition. A condition ought not to be imposed unless there is a sound and clear-cut reason for doing so. This principle applies equally to applications under section 73 where a condition must not be retained unless there is a similar justification. The certificate will be a consideration in the unlikely event that it might indicate a lack of continuing need. In practical terms a refusal to remove the condition would not change the legal position in that there can be no enforcement of it while the dwelling is occupied by someone not employed in agriculture. In the unlikely event of the dwelling becoming re-occupied by somebody else complying with the condition, it is possible that any further non-compliance could be enforced.

Should an agricultural occupancy condition be removed if it can be demonstrated that the landholding to which it relates has been substantially reduced prior to the current owner purchasing it, thus resulting in the unit no longer being regarded as viable?

The possibility that land may be severed from a holding originally justifying an agricultural dwelling is one of the main weaknesses of the system. In recent years this flaw has been recognized by many LPAs which require planning obligations which would restrict such a practice in accordance with the advice in PPG7 at I 19.

Severance may take place with the deliberate intent of abusing the planning system or it may have taken place for quite justifiable and reasonable agricultural or financial reasons, but whatever the motive decision makers are later faced with a fait accompli. Appeal cases have shown that  inspectors are obliged to accept the associated land position as they find it, although there have been several instances where quite small amounts of land left remaining with a dwelling have been considered to be capable of supporting viable intensive agricultural enterprises. However, lack of land is not on its own an adequate reason for removing an agricultural occupancy condition. It still has to be shown that there is no demand for the dwelling from agricultural workers and retired farmers in the general locality.

On obtaining an LDC for the occupation of a property without complying with an agricultural occupancy condition should this be followed up with an application to lift the original condition? This is to safeguard the position if a different occupant unwittingly complies with the condition thereby reversing the benefit of obtaining the LDC.

It might be prudent to consider taking this safeguard, as compliance followed by a fresh breach could be subject to further enforcement action, although the likelihood of this happening is slight. On considering an application for the complete removal of the condition a local authority would have to consider whether there is a Circular 11/95 "need" for it any more in view of prevailing agricultural circumstances and the existence of the LDC.

I am looking into a site in Wales where the owners have lived and worked for over 10 years, in accordance with a temporary permission that has been renewed every 3 years.  The local planning authority has recently refused a further renewal and served an enforcement notice on the owners to remove them and their home from their land. Is this the ‘correct’ procedure and/or has there been any recent case law to suggest that there is a case for lawful use after such a long period of time?

I assume that this is a relatively new farming activity where the functional need for a new dwelling in the open countryside has been demonstrated as an exception to policies of rural housing restraint, but there have been doubts about the financial viability of the enterprise. In such circumstances, Assembly Government advice is that for the first 3 years the need should be met by a caravan or other temporary accommodation, so that the case for a dwelling in the longer term may be proven. I assume that the owners been unable to do this, despite successive extensions to the original temporary permission. The latter is both unusual and contrary to current national planning guidance. If the owners have been living in a caravan, they would only be able to establish a lawful use for their residential occupation had it subsisted continuously for a period of 10 years, without intervention and control by the local planning authority. That is clearly not the situation here. The serving of the enforcement notice might well therefore be justified but without the full facts of the case I cannot comment further. There is a right of appeal against such proceedings.

I am dealing with an occupancy condition where the word agriculture has been replaced by "pisciculture" and reference is made to its definition in the 1971 Town and Country Planning Act. However, the Act contains no such definition. Does that make the condition ultra vires and where can I find an appropriate definition?

I can find no reference to "pisciculture" in any planning legislation or related guidance. However, the best dictionary definition I have found is "the breeding, hatching, and rearing of fish under controlled conditions". The 1990 Act (Sec55 (4A) and the GPDO (Part 6 D1) both refer to "fish farming", which to my mind is the same thing, and this is defined as "the breeding, rearing or keeping of fish or shellfish (which includes any kind of crustacean and mollusc)".

As to whether the condition is ultra vires, I think you could argue that since there is no definition of pisciculture for the purposes of planning control, the condition fails the tests of precision and enforceability, as required by Circular 11/95. However, I am not certain that that would be sufficient to have the whole condition struck down.

An application for the transfer of an occupancy condition from a bungalow allowed on appeal in 1984 to an adjoining pre-1948 cottage was refused by my authority. I have appealed this decision. However, the Inspectorate has advised that there is no power to simply transfer a condition from one property to another. It therefore proposes to deal with the appeal as if it had been made against a refusal under sections 73 or 73A of the 1990 Act and let the Inspector decide whether it should be released, and if so whether that would require the imposition of a similar condition on the adjoining property. Do you think that this approach is correct?

The Inspectorate is strictly correct in ruling that there is no specific power available to transfer a condition and its approach seems a sensible way to deal with the problem. A precedent case from 1997 involved a proposal for the transfer of an occupancy condition from a post-war bungalow in Kent to a pair of cottages on the same holding. Here, an Inspector treated the appeal under Sec 73 of the 1990 Act as one for the continued occupation of the dwelling without complying with the condition, which had been the approach of the Council when it decided the matter. He allowed the appeal and granted permission subject to a new agricultural occupancy condition relating to the pair of cottages.

Annex I of PPG7 advises that the proposed removal of an agricultural occupancy condition should be considered against a realistic assessment of the existing need for it, from both the holding itself and the wider local area. This is normally done by marketing the property at a price reflecting the condition. However, there is some apparent confusion over demonstrating agricultural need as opposed to compliance with such a condition. While recent appeal decisions focus on the functional needs of the farming enterprise and not the personal preferences of the applicant, case law suggests that a very low level of agricultural employment is sufficient to achieve compliance. Moreover, in my experience many authorities refuse to allow the removal of a condition where just a few sheep can be kept. Surely this undermines the purpose of such restrictions to a ridiculous extent?

I agree that there seems little point in applying such conditions following a rigorous examination of agricultural need only for them to be subsequently undermined by tolerating low levels of compliance. However, I suspect that the confusion arises mainly from cases where the removal of old style condition is sought, as these often require only that the occupier be "employed locally in agriculture". Such a phrase does not necessitate that the sole or main employment be in agriculture, as stipulated in the more stringent model conditions set out in cancelled circular 1/85 and its successor circular 11/95. It will therefore be a matter of fact and degree as to whether a low level of agricultural activity is sufficient to secure compliance.

Much will therefore depend on the precise nature of the agricultural operation and the functional relationship between the property, the worker and the agricultural activities. The approach of planning authorities and the Inspectorate is not consistent and there have been instances where the extent of agricultural employment is far less than that required by the modern condition. But where the latter has been appropriately applied in the first place, my experience is that a much more robust approach to compliance is generally taken. Reader’s views on this subject are invited.

An application for a certificate of lawful use relating to a breach of an agricultural occupancy condition that requires a farmhouse be occupied "...in conjunction with the farming of the unit of 12 acres outlined in blue..." has been refused. I argued that my client had always had other full-time work and that while he had ‘hobby farmed’ the land, that was insufficient to demonstrate compliance with the condition. In addition, given the condition’s specific wording and a subsequent reduction in size of the holding to about 11 acres, I maintained that this represented a second breach of the condition. How should the condition be interpreted and do you agree with my stance?

The condition here evidently does not follow that suggested in the model conditions to cancelled Circular 1/85 or its current successor Circular 11/95. These seek to limit occupation of such a dwelling to "a person solely or mainly working" in agriculture. Had this wording been used, there is little doubt that your client’s occupation of the dwelling would have been in breach of the condition. However, as the condition requires only that the dwelling be occupied in conjunction with the "farming" of the identified land and your client has done this, albeit as a ‘hobby farmer’, I am inclined to agree with the planning authority. Nevertheless, as it has been held in some circumstances that hobby farming does not mean that land is in agricultural use, this is clearly arguable. But I am unconvinced that the small reduction in the size of the holding has any material bearing on whether there has been compliance with the condition.

Have there been any appeals where agricultural occupancy conditions have been removed with a reference to incomes and price of dwellings?

The issue of whether a dwelling has remained affordable to the farming community is often central to a consideration of whether the removal of such conditions would be justified, particularly where they relate to large properties. Examples are given in 9.4332 of Development Control Practice. Other decisions of interest include a case from Surrey in 2002 where an inspector held that it would be very difficult to find anyone who would be able to comply with the terms of a condition in respect of a property valued at £2.25m (DCS No: 43168208), and another from Somerset in 2001 where evidence indicated that there had been a substantial decline in farm incomes to the point where an occupancy condition had outlived its usefulness (DCS No: 36807481). In addition, in a case from Kent in 2000 a condition was removed despite interest from agricultural workers as nobody could afford the encumbered price, which the inspector had accepted was realistic (DCS No: 31561738).

Unconditional permission was granted in 1964 for a dwelling at a nursery in the countryside. In 1967 permission was granted to convert the uncompleted dwelling into two self-contained flats, subject to an agricultural occupancy condition. That permission was implemented and the building was used as two flats until the early 1970s. Since then the building has been used as a single family dwelling and has not been occupied by an agricultural worker for more than ten years. Does the agricultural tie still apply?

I think that the occupancy condition has ceased to have effect. In accordance with the judgment in London Borough of Richmond-upon-Thames v Secretary of State for the Environment, Transport and the Regions [2001], the conversion of flats back into a single dwelling is likely to have resulted in a material change of use. Any condition attached to the 1967 permission would no longer apply. This approach was taken in a recent decision from Dorset that considered a similar issue (DCS No: 100042119). In any case, if you are able to demonstrate that the building has been occupied by a non-agricultural worker for at least ten years, it will be immune from enforcement action.

Several of my clients with dwellings subject to agricultural occupancy conditions have told me that they have heard that impending EU legislation would result in such conditions being abolished. I have told them that I know nothing about this, it is probably just a suggestion made by someone in Brussels and UK planning law is unlikely to be overruled. Am I right?

I am unaware of any such proposal. Bearing in mind the approach taken over the relationship between the European Convention on Human Rights and UK planning legislation, I agree that it is unlikely that such conditions could, in themselves, be proscribed by EU law. Does any reader have any knowledge of this matter?

A retired butcher is proposing to work from October to December plucking turkeys in excess of 30 hours per week, in order to establish the credential that he was last employed in agriculture. This is in order that he may purchase property encumbered by a standard agricultural occupation condition. I await your views with anticipation. PA.

Circular 11/95 states that the term ‘last employed’ does cover the situation where an individual had previously worked in agriculture, but was not now permanently employed in a non-agricultural occupation. Nowadays, on-farm plucking could well be considered an integral part of the total process carried out by a poultry farming business (see DCS Number 047-849-668), and thus would constitute agricultural employment.  However, I doubt that three months would be anything like long enough to convince decision makers of ‘last employed’ status, particularly as it is clearly a blatant ploy to side-step the intention of planning controls. GH.

A condition was applied to a house in the following terms "Occupation of the dwelling is limited to a person solely or mainly or last employed in agriculture (as defined in the Town and Country Planning Act 1971) in the locality or in forestry including any dependants residing with him or a widow or widower of such a person." A serving policemen and his wife who is a nurse, bought the house in their own names and have let the small associated acreage of land and some buildings to local farmers. The 75 year-old mother of the nurse is the widow of a local farmer has moved into the house. Has a breach of condition occurred in these circumstances? DW.

Some may interpret this condition as allowing a farmer’s widow to live in any other dwelling besides the marital farmhouse, and still comply with the terms of any standard agricultural occupancy condition. But, in context, I do not think that this reading of the final words of the condition would be supported were the matter to come to appeal, or go before the courts. Such an interpretation was clearly not the intention of those who drafted the condition, which was to ensure that, on the death of a farmer’s spouse, the remaining partner did not become in breach of planning control by remaining in the family home. Be this as it may, in the circumstances you describe, the daughter and son-in-law cannot possibly comply with the condition, and neither can they rely on the possible qualification of the widow, as they cannot be her dependants. GH.

You recently reported a decision where an inspector lifted an agricultural occupancy condition on the grounds that a house had a market value of £2 million whereas agricultural workers in the area could only afford up to £300,000 (Planning, 25 May, p35). Does that not mean that the market valuation is wrong? If a house has such a condition, then surely it must be valued on the basis of that restriction, which in this case would mean that the property is worth no more than £300,000. Do you have any observations or other cases on this point? CL.

The issue of whether an agricultural worker's dwelling has remained affordable to the farming community is often central to the consideration of whether the removal of an occupancy condition would be justified, particularly where it relates to a large property. One school of thought supports your view that the value of such an encumbered dwelling only reflects what local farm workers would be prepared to pay for it. However, this is not reflected in appeal decisions, which indicate that the existence of this type of condition typically reduces the value of a house by around 30 to 35 per cent. Examples are given in Development Control Practice 9.4332. Other decisions of interest include a case from Surrey in 2002, where an inspector held that it would be very difficult to find anyone who would be able to comply with the terms of a condition in respect of a property valued at £2.25 million (DCS Number 43168208). In a case from Somerset in 2001, the evidence indicated that farm incomes had declined to a point where an occupancy condition had outlived its usefulness (DCS Number 36807481). PM.


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