12 March 1999

NEW HOUSE

FOR STAFF?

NOT SO

EASY!

So you want to build a house for a

farm worker or one of the family who

works on the farm? What bureaucratic

hurdles await you? Craig Noel from

Strutt and Parkers Lewes office

delves into the planning jungle

FOR most local planning authorities, the countryside is a place where permissible development should be linked to the historically rural economic activities of agriculture, forestry, recreation – and waste disposal.

Most local development plans will be based on this premise, at the same time pushing development towards existing settlements.

The first practical hurdle is what defines a village as a "qualifying" settlement. It is a fairly arbitrary system, but planning authorities usually tackle the issue by drawing up a list of villages in the Plan on the basis that if there is a basic infrastructure – pub, shop and school – there may be scope for further development.

The planning principle is that if the proposed site is within the boundaries of such a settlement, there is a presumption in favour of granting permission for a development. Anywhere else, the application is treated as if it related to the open countryside.

At this point the exceptions policy comes into play. Farmers and agricultural workers may be able to get permission for a new dwelling where others cannot – this is provided for in planning guidance (PPG7) and manifest in local plans.

Quite simply, it means that agricultural and forestry workers may get permission to build essential accommodation where others may not. But they are likely to be asked whether it is not possible for them to find or create such accommodation within a nearby village settlement.

If that can be ruled out, the next step set out by PPG7 is to pass two tests – the "functional" test and a "financial" viability test.

In order to meet the functional test, the farmers business plan must be able to demonstrate to the county estates surveyor, or whoever has been appointed by the local authority, that the enterprise for which the development has been proposed can support at least one full-time worker.

Here, the latest PPG7, published in February 1996, changed the goalposts. To get permission for a permanent dwelling, it is now necessary to show that your business has been running for three years, and has been profitable for at least one.

No would-be farmers

This effectively knocks out would-be farmers or smallholders, whose good intentions may be undermined by insufficient skill and capital to sustain their businesses. Rather than risk escalating attempts to lift agricultural occupancy conditions on permanent dwellings, there is a provision for such people to be granted temporary permission for a mobile dwelling until the business can prove itself.

The functional test revolves around the need for a dwelling on the proposed site. Does the farmer/worker really have to be on the site of the business 24 hours a day?

A livestock operator would find it easier to argue this than an arable business, although permission is often granted to horticultural enterprises on the grounds that constant supervision is needed for complex climate control systems, the failure of which could wipe out a crop in a matter of hours.

Similarly, so-called hybrid businesses may be successful if, for example, the farm carries a stable of racehorses which require more intensive supervision. It may also be possible to show that the purchase of a house or site in a suitable village would be cost-prohibitive compared to building on owned land.

Ultimately, however, you have to be able to show that your needs cannot be accommodated by a suitable house or site in a nearby village.

Once you have your permission, there is the issue of whether you are legally tied, or just bound by the conditions of the planning consent. Most local authorities will now seek a legal agreement in addition to the agricultural occupancy restriction. It will tie the house to the farmland, to help ensure the original use of the dwelling is retained and to resist fragmentation.

40 years ago

The restrictions of planning and legal documents today will probably be very different to those found in legal searches relating to agricultural dwellings built 40 years ago, which were far more draconian in their wording.

In the 1950s, occupancy may have been restricted to the agricultural worker alone. Todays standard restrictions make provision for a spouse, someone who has worked in agriculture and retired, and for people working locally in agriculture – a practical evolution of the original premise. The older the permission, therefore, the easier it may be to challenge it.

In the 1970s, legal agreements started to play a bigger role through section 52 of the 1971 Town and Country Planning Act. They are relatively difficult to shift, and there is no right of appeal. They can only be modified by agreement with the local authority – and it is not in their interest to be flexible – or by reference to a lands tribunal.

The 1990 Planning Act, under which section 106 agreements are prepared, changed tack. After five years, you can apply to have a section 106 "planning obligation" relaxed, and you have the right of appeal to the minister.

It is therefore tactically to your advantage if you have a property subject to a section 52 agreement to find a way to modify it in some way – for example where land has been sold. Any new agreement will be entered under the 1990 Act and gives you the right of appeal.

There are various approaches to any attempt to get an agricultural occupancy restriction lifted. The first is simply to apply to have the condition relaxed. At the same time, it is advisable to apply for local authority agreement to amend any legal agreement if your application is successful – it is not unknown for local authorities to agree to the first but refuse the second.

Lifting restrictions

The main argument used for lifting the restriction is by showing there is no need for it any more – but this must be demonstrated within the locality (normally a 10-15 miles radius), not just on the individual farm or estate.

You could also try to sell the dwelling with its occupancy restriction – but this must also be well substantiated. The dwelling should be marketed actively for at least 18 months, with a discount of perhaps 30%.

Another route is to obtain a lawful development certificate (LDC), under the 1990 Act. It is an entirely different approach, and usually works well where there is a condition but no legal agreement. It relies on demonstrating that your condition has not been complied with for many years.

Something similar existed before 1990, in the shape of established use certificates, but they relied on demonstrating a continuous breach since 1963. LDCs rely on a 10-year breach, enabling a large number of restrictions to be lifted in the last 10 years.

Older conditions

Obviously, the older the condition the greater the chance of success. For example, where an agricultural workers widow has lived on in the house for, say 15 years, the local authority is unlikely to force her to move out.

One case comes to mind, in which we originally applied to have the occupancy condition for a dwelling on a vineyard to be lifted on the grounds that there was no longer a need for it. That failed. We successfully re-applied under the LDC route because although the applicant had originally established the vineyard, and had produced and sold wine, we managed to argue that latterly less than 50% of his time was spent in viticulture. Most of it was being spent in trying to sell the wine.

We have yet to see a great number of challenges to section 106 agreements, because of the five year restriction, but they are bound to come in the not-too-distant future. But the intricacies of getting a restriction lifted are such that it would be foolhardy to embark on doing so without having a clear idea of the implications. It is all too easy to fall at some unseen hurdle.