Undoing Agricultural Ties

The Planning Inspectorate considers

Discovering an agricultural tie ("ag tags") restricting the occupancy of a property can seem a trivial problem. However, buyers, sellers and developers underestimate them at their peril. A recent Planning Inspectorate Appeal Decision (APP/L1765/W/18/3211073, dated 5th April 2019) serves as a reminder of the hoops any applicant will need to jump through in order to remove such condition.

Ag tags generally arise when planning permission has been sought for a dwelling where residential development wouldn't normally be allowed (usually rural or greenbelt land). However, if there is a demonstrated need for agricultural or forestry workers, the Local Authority may grant permission with a condition restricting the occupancy of the dwelling to those working in these areas. Many presume that such a condition can be easily circumnavigated (perhaps by demonstrating a little hobby farming or even a particularly illustrious vegetable patch). This is not the case. The courts have taken a dim view of such attempts, and place stringent demands on occupiers to demonstrate that their main income is in fact derived from agriculture, if they are to avoid enforcement action.

There are two main ways of overcoming an ag tag restriction, but neither are straightforward.

• If an ag tag was imposed by a planning condition that has been breached continuously for ten years, it may become immune from enforcement action. A certificate of lawfulness of existing use or development ("CLEUD") can then be obtained, enabling the property to be used without the condition. However, the use must have been continuous and any gaps or changes over the period are likely to reset the clock. Furthermore, the CLEUD does not remove the ag tag, but merely certifies that the current use is lawful.
• The only way to definitively remove the tag is through an application under section 73 of the Town and Country Planning Act 1990. However, Local Authorities will only remove such conditions if "the existing need for dwellings for agricultural workers in the locality no longer warrants reserving the house for that purpose" (Circular 11/95, paragraph 105). Local Plans also often contain policies setting out the circumstances under which the removal of an ag tag can be approved.

The above Planning Inspectorate case, sheds light on how such decisions are made. Planning permission was originally granted in 2007 for the conversion of a farm building into a dwelling. Among the attached conditions, no.4 stated that the occupation of the dwelling should be limited to those solely or mainly working in agriculture (with some exceptions for family). The reason given was that the site was in an area where new dwellings would not normally permitted, except where there was an overriding need in the interests of agriculture and forestry. The applicant subsequently sought planning permission for the development, but without being constrained by this condition. The main issue was whether condition 4 remained reasonable and necessary having regard to the need for local housing for agricultural workers. The relevant Local Plan policy restricted development in the countryside, but allowed dwellings for rural workers. The supporting text stated that applications for the removal of such conditions need to consider the present and expected future need for such dwellings in the location. In the absence of other guidance, a marketing period was considered appropriate in determining such need.

Factors which were taken into account by the Inspector in deciding whether to ag tag could be removed included:

• A significant marketing period and robust campaign. This had included a sales board, web presence, numerous press adverts in local and specialist publications and direct mail campaigns. However, no viable offers were received. Considering the length of time the property had been for sale, there was clearly little serious interest.
• The property was high value. There was no agreement as to the appropriate market value for the property, with the occupancy restriction in place. However, the size and quality of the house and its picturesque setting, meant it likely that it would be beyond the reach of the vast majority of rural workers.

Two other interesting points noted by the Inspector:

• A high value property wasn't a definitive factor in favour of removing the ag tag, but would have significant weight;
• An agricultural business had previously been run from the site, but the viability of reinstating such a business was not determinative in whether or not the condition needed to be complied with.

In conclusion, the Inspector found no conflict with the relevant Local Plan in removing the condition. The appeal was therefore allowed, and as a consequence, the ag tag was eliminated. The case serves as a reminder that, where the original purpose for the ag tag has ceased to exist, these can be removed, but the ability to remove such conditions should not be taken for granted.

For more information, visit our Agricultural Law page.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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