The effect of a landlord’s planning application on a tenant’s personal circumstances must, in certain situations, be taken into account before approval is granted.
Several landlords have recently attempted to repossess land and buildings let under the Agricultural Holdings Act (AHA) 1986 for non-agricultural uses, according to Tenant Farmers Association (TFA) chief executive George Dunn.
Tenants have been urged to understand their rights, as they may be able to object. In most cases, full planning consent for change of use is required before a landlord can serve a Case B notice to quit an AHA tenancy, says the TFA.
This type of notice is known as an incontestable notice to quit and can be used by the landlord to take land or buildings back from a tenant when it is required for uses other than agriculture.
While these notices are termed incontestable, a tenant served with such a notice can, within a month of receipt, serve a counter-notice demanding arbitration on the validity of the notice.
Mr Dunn says: “It is very often the case that landlords with tenants occupying under the AHA will look for opportunities to take land back in hand. This is because of the security of tenure enjoyed by tenant farmers, who will be secure for their lifetime or sometimes for up to three generations.
“If a landlord can secure planning consent for change of use then it will allow them to break that security and take land back for their own use.”
Inappropriate use of notices
Some landlords are looking at options such as rewilding, tree planting or involvement in some of the new government schemes.
“Although landlords are unable to use incontestable notices to quit in these circumstances, we sometimes see landlords attempting to use them, which is inappropriate,”
Mr Dunn said. Recent case law has confirmed that landlords are not able to use Case B for tree planting, for example (See “Permitted development rights”).
Permitted development rights
Case B notices should not be served on tenants by a landlord wanting to use permitted development rights (PDR) to develop land or buildings, says the Tenant Farmers Association’s George Dunn.
Different classes of PDR are treated differently with regard to the landlord-tenant process, so advice should be sought for individual circumstances.
For example, for permitted development under Class Q, which allows the conversion of farm buildings into homes, landlords must get the permission of the current or previous tenant to use the PDR process.
Tree planting also falls under PDR and a landlord can use a standard notice to quit to recover land in such cases. However, the tenant has the ability to serve a counter-notice and require the landlord to get the consent of a tribunal – consent that would not be given for tree planting were there no other factors, says Mr Dunn.
A court case in 2000 set a precedent for the effect on tenant farmers to be a material consideration during the planning permission process.
Regina v Vale of Glamorgan DC ex parte David Adams outlined that the effect of a planning application on a tenant farmer’s personal circumstances should be taken into account.
In this case, the trustees of the Penllyn Estate sought planning permission to convert three barns for residential use, which was initially granted by the Vale of Glamorgan Council.
Dairy farmer David Adams, the tenant, was served a notice to quit the part of the farm that included the barns.
However, the barns were considered essential use for the tenant, with the loss of them having a “catastrophic” effect on the Adams family and their business, as well as resulting in the loss of employment for local residents.
The tenant challenged the decision through a judicial review and the court ruled in his favour.
The judgment stated the effect on the personal circumstances of the tenant was a material consideration that should have been taken into account by the council when it considered the trustees’ planning application.
Mr Dunn says: “The case law in this area is not widely known, but it is a very important defence for the tenant when the landlord is seeking to gain planning consent for change of use.
“However, it is not a foregone conclusion, because the tenant will have to provide evidence of the effect of the planning application on their personal circumstances in order to convince the local planning authority that it is an overriding matter that they will need to take into account.”
AHA tenancies advice
When can a landlord serve an Agricultural Holdings Act tenant with a notice to quit for non-agricultural use?
The land in question must be required at the end of the notice period or soon after that. If that is the position, the landlord can serve a Case B notice to quit but, if planning permission is needed, they can only serve the notice once the permission has been granted.
The general consensus is that outline permission will be enough. However, unless the tenancy agreement gives the landlord the right to serve a notice to quit part of a holding, any notice covering just part will generally be invalid.
What can a tenant who receives a notice to quit do?
The tenant can challenge the validity of a notice to quit by requesting arbitration within one month of receiving the notice. Grounds might be that the landlord does not actually intend to develop the land, or – a key point – that the notice covers parts of the holding that are not required for the development.
Before receiving a Case B notice, the tenant can also object to the landlord’s planning application, perhaps on the grounds that their livelihood or business will be put at risk.
The tenant could argue that their personal circumstances are a material consideration that decision-makers should take into account. How much weight will be given to the tenant’s arguments will be a matter for a planning committee or inspector to decide.
Source: Julie Robinson, partner, Roythornes Solicitors