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AGRICULTURAL RESTRICTIONS – UPDATE

We are receiving an increasing number of enquiries from customers who need a mortgage for a property with an agricultural restriction and we can arrange this type of finance but each case is different. An agricultural restriction is a condition imposed by a planning authority, when granting planning consent for the building of a dwelling, usually in an area where otherwise development would not be allowed. The development is justified on the grounds of an economic need. Arranging finance for properties with planning restrictions is a niche and specialist area. The reasons for this are as follows: 1) The effect of a planning restriction is to limit those persons who are entitled to occupy a property and this in turn limits the market to which the property may be sold. As a result, the values of properties with restrictions are almost certain to be less than properties without, by anything up to 30%. 2) As lenders will perceive the market restricted, there will be fewer lenders available. Some of our customers ask us whether a planning restriction can be removed and how easy this is to be achieved. Removal is not an easy process and requires expert advice from a planning consultant. The two routes will usually be by making a planning application for variation of the earlier consent, or by an application for a certificate of lawfulness. The latter is used where there has been a sustained breach of a planning condition for a period exceeding ten years and where the planning authority has not served an enforcement notice. A breach of the condition might be where persons who are not in agriculture, as defined by the Planning Acts, have occupied the property for more than ten years. Where an authority becomes aware of a breach in planning, it may serve an enforcement notice seeking compliance with the condition. A recent case demonstrates this and it is useful to recite much of what the planning authority said in arriving at its decision to vary the occupancy condition. In this case, the initial dwelling had a restriction imposed with the usual wording based upon agricultural activities. What this case shows is the importance of getting the ducks in a row before making an application and how the planning authority carefully considered the evidence before it. Moreover, it also demonstrates that the planners had in mind, at all times, the reason why the development was allowed to begin with – its justification had been on economic grounds and with this in mind they recommended a variation to the wording of the condition, to include the activities which had been on going – namely equestrian. A certificate of lawfulness had previously been sought on the basis of a sustained breach because the property had not been used for agriculture but for equestrian purposes. This had been declined on two occasions.  It is useful, at this point, to look at the definition of agriculture contained within section 336(i) of the 1990 Town and Country Planning Act which states: “agriculture” includes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes, and “agricultural” shall be construed accordingly; Strictly speaking, the literal interpretation might exclude equestrian activities, which is why the application for a certificate of lawfulness had previously been made in this case. It was clear that an equestrian business had been carried on. In arriving at its decision, the planning authority took into account the National Planning Policy Framework that became effective in 2012. The National Planning Policy Framework is a key part of the government’s reforms to make the planning system less complex and more accessible. It vastly simplifies the number of policy pages about planning and acts as guidance for local planning authorities and decision-takers, both in drawing up plans and making decisions about planning applications. This brings into focus the sensible view that land can be used for a variety of purposes by effectively extending the definition of agriculture, in this case, to include equestrian. The planning authority specifically relied on paragraph 55 of the Framework which states, amongst other things, that local planning authorities should avoid new isolated homes in the countryside, unless there are special circumstances that include the essential need for a rural worker to live permanently near their place of work in the countryside. It was clear that an equestrian business had been carried on for a number of years and that the occupiers of the property needed to look after their horses and so these facts secured a variation to the wording of the condition. This is perhaps good news for anyone considering buying such a property, for use for an equestrian business, but rather less good news for those seeking to rely on the strict definition of agriculture, as the basis of a breach of a planning condition where the alternative activity being carried on is equestrian. The all important emphasis is to talk to Farm and Country Finance about these type of issues before commitment. There follows the text of the decision:

CONSULTATIONS

MAIN ISSUES

The application property is a modest bungalow built about 25 years ago in open countryside off Red House Lane Hannington. The property was considered justified on the basis of agricultural need, and an agricultural occupancy condition was accordingly implied. Soon after construction, the property changed hands and site visits established that an equine enterprise was being run from the property as well as a living being made from agriculture. Retrospective planning permission was granted for stables and a manége area.

In support of this application affidavits have been submitted confirming the equine use on the site for a number of years – some imply all agricultural activity ceased at some point whereas others suggested it might have continued. From the planning history, it will be seen that we have twice refused to accept on the basis of the submitted evidence that the condition has been breached continuously for 10 years.

This application seeks a variation of condition 4 of planning permission DA/89/1190 of 02.11.1989 which restricted the occupation of the building to an agricultural worker:

The occupation of the dwelling shall be limited to a person solely or mainly employed or last employed in the locality in agriculture as defined in Section 290 (1) of the Town and Country Planning Act 1971, or in forestry, including any dependants of such a person residing with him, (or a widow or widower of such a person)

The reason for the imposition of the condition was:

It is the policy of the Local Planning Authority to refuse to permit new dwellings in open countryside unless there is a proven long term need. The variation being sought is now for equestrian use and agricultural use. Having regard to the history of the site, the evidence submitted and the knowledge of planning officers involved, on the balance of probabilities, the site has operated as a joint agricultural and equestrian operation for some time. This is however not a request for a certificate of lawfulness, but an application for variation of condition and needs to be considered as such.

Under policy HS24, new residential dwellings in open countryside are restricted to those considered essential for agriculture or forestry. Since the policy was written and the approval granted which imposed the condition, there has been recognition that other countryside uses can provide sufficient justification for a permanent dwelling – one such use being equestrian uses.

The NPPF of March 2012, replaced the previous PPS7 and paragraph 55 now talks about “rural workers” having an essential need to live on site rather than sticking to the agriculture and forestry workers of the condition. It is obvious from the evidence and officer knowledge there has been an equestrian enterprise on site almost since the property was built. Given that this has operated alongside the agricultural use, and that it is considered essential for persons on to be on the site to look after the horses, the request to modify the condition is acceptable in policy terms and is also a reflection of how the enterprise has operated for a number of years.

In view of this, I recommend the variation of condition 4 of planning permission DA/91/0070 and its substitution with the following:

The occupation of the dwelling shall be limited to a person solely or mainly employed or last employed in the locality in agriculture as defined in Section 290 (1) of the Town and Country Planning Act 1971, or in forestry, or in an equestrian enterprise including any dependants of such a person residing with him, (or a widow or widower of such a person)

Reason: The dwelling is granted planning permission in the open countryside where there is a policy presumption against new residential development as it is considered essential to the need of a rural worker to live permanently at or near their place of work. The dwelling should be kept available to meet such a need.

Summary

The condition as originally worded does not take into account the latest guidance that has emerged in the time since the policy was written, including the NPPF. This guidance allows for a wider range of occupations than merely agriculture or forestry. There has been general acceptance that equestrian enterprises are such a use. In this case it also reflects the reality of what has been taking place on the site for a number of years. The proposed variation of the condition accords with policy for residential development in the open countryside including Paragraph 55 of the NPPF.

Recommendation

That the application to vary condition 4 of planning permission DA/89/1190 is Approved – new wording as set out below:

4.The occupation of the dwelling shall be limited to a person solely or mainly employed or last employed in the locality in agriculture as defined in Section 290 (1) of the Town and Country Planning Act 1971, or in forestry, or in an equestrian enterprise including any dependants of such a person residing with him, (or a widow or widower of such a person)

Reason: The dwelling is granted planning permission in the open countryside where there is a policy presumption against new residential development as it is considered essential to the need of a rural worker to live permanently at or near their place of work. The dwelling should be kept available to meet such a need.

Case Officer

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