UK: Agricultural Occupancy Marketing Requirements

A recent case heard in the Upper Tribunal sheds some light, or at least serves as a reminder of the hurdles to be overcome when seeking the discharge of an agricultural occupancy restriction.

In the Matter of an application by (1)Peter Rasbridge (2) Eleanor Rasbridge sub nom Re 2 Cefn Betingau Farm Rhydypandy Road Morriston Swansea SA6 6NX (2012)was an application to lift a restriction imposed in a section 52 Agreement entered into in 1986.

The facts - The wording of the restriction was

Although in this case the wording was contained in an agreement, it is almost identical to wording recommended in Circular 11/95 and commonly found in planning conditions imposed on permissions.

An application to remove the restriction had been refused by the Council and therefore because it was contained in an agreement, an application was made to the Tribunal under section 84 Law of Property Act 1925 to discharge the restrictive covenant. It was argued that this restriction was now obsolete, the grounds for the application being that since the date of the Section 52 Agreement:

• Permission had been granted and the house had been extended to such an extent that it was no longer suitable for agricultural workers accommodation
• A number of agricultural buildings in the complex had been converted to residential use such that there was no longer any need for this dwelling to provide accommodation for an agricultural worker.

The planning policy applicable to such an application required not only that the applicant should demonstrate a lack of need for such accommodation but that "evidence will be required of the property having been offered for sale and to rent with the occupancy condition at a realistic affordable price to the agricultural community and associated agricultural services over an acceptable period of appropriately targeted marketing".

In this case the property was advertised with a 28% discount, in the press 13 times and on 4 different websites. Although the price was further reduced, ultimately to a 39% discount, there was still no interest.

The Tribunal's conclusions. The Tribunal concluded that although the extension of the bungalow may have rendered it unaffordable to low grade agricultural workers the restriction did not limit occupation to specific categories or grades of worker and the property would remain suitable for farm manager or farm owners.

The Tribunal recognised the "pragmatic constraints" of a marketing exercise and warned against too theoretical or pedantic an approach to the marketing exercise. It accepted that it was reasonable not to keep records of all enquiries, only of those people requesting a viewing.

It also accepted that there was no obligation on the seller to offer any additional land in his ownership in order to make the bungalow more attractive.

However it was critical of the marketing exercise in that;

1. the applicant had failed to offer the property for rent;

2. the evidence lacked an objective analysis of the comparables used to determine the unfettered value;

3. the bungalow had not been marketed in the specialist farming press; and

4. adjustments to reflect the general market movements were not distinguished from the discount allowed for the effect of the restriction

For these reasons it determined that the market testing exercise was not sufficiently rigorous to establish that there was no demand subject to the restriction, even at a substantial discount to its unfettered value, or at all.

Removal of Conditions - Guidance to local authorities when faced with S73 requests to remove agricultural conditions on planning permissions is contained in Circular 11/95 which states that "it will not be appropriate to remove such a condition unless it can be shown that the existing need for dwellings for agricultural workers in the locality no longer warrants the reserving of a house for that purpose".

Local Authorities are expected to set out their policy approach to the retention or removal of such conditions. Prospective applicants should therefore always check the Local Plan policies.

Although this case involved the discharge of a restriction in an agreement and hence an application to the Tribunal as opposed to a Section73 application/appeal to the Secretary of State for discharge of a condition, we consider that the case sets out some useful guidance as to the nature of the marketing exercise that will be necessary to support a successful application to lift such restrictions in either circumstance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.