Chasing the Holy Grail of lifting ag-tags
23 September 2014, The removal of agricultural occupancy restrictions has long been the Holy Grail among the rural community.
While they have always been a useful tool for gaining accommodation essential to a farming enterprise, over time the enterprise may change in character or the land may be sold off, leaving a very appealing residential holding with a small amount of land that really has few viable agricultural uses.
When these become surplus to the main farm, the desire to sell them and release potential reinvestment capital is frustrated first by the difficulties surrounding getting the restrictions removed and second by the reduced number of people able to comply with the restriction, who are also in a position to buy such a property.
Proving that the condition is no longer required and should be removed can be a hard slog. The need may arise after, for instance, many months of offering the property on the open market and finding a marked lack of interest. This could potentially be proof that there is no-one in the market who would comply with the restriction and therefore that the restrictions should be lifted but there’s likely to be examination of how vigorous the marketing effort has been, so it has to be genuine and not just a sham exercise to bring the desired “no sale” result.
There is no easy way to get an agricultural tie lifted. A recent High Court Case, Shortt v SoS and Tewkesbury Borough Council, clearly showed that the smallest detail can make a difference.
In the case, evidence previously supplied by the applicant in support of older planning applications was referred to and weighed against the applicant. The meaning of the word “dependants” in the agricultural occupancy restriction and its definition was eventually the critical issue.
Mrs Shortt had hoped to prove that because her enterprise never made money and her husband had his own career that supported the family financially, he and their two children were not her dependants. This would have meant they had occupied the house without being dependants for more than 10 years and therefore in breach of the condition without challenge from the planning authority, effectively contravening the planning permission and leading to the lifting of the agricultural occupancy restriction via a Certificate of Lawful Use or Development. But the judge ruled “dependency” in this case had a far wider definition beyond simply financial support because the wife provided her family with “usual family services and care”.
In terms of lessons for clients there are a few:
1. When making a planning application do have reference to previous applications and the evidence used, in case it conflicts with one’s current arguments.
2. Take professional advice and consider the risks of a proposal failing.
3. Sometimes the long boring route to achieve an aim (in this case advertising the property, collating evidence) is the right way to move forward even though it takes much longer to achieve the outcome.
Mark is a rural partner responsible for agency and professional work in East Anglia.
Since qualifying in 1998 Mark has undertaken asset management of institutional rural property, advised landowners,...