Ever since the planning system began there has been strict control over building new houses in the countryside; partly to avoid loss of agricultural land to development and partly to prevent sporadic building. The policy has been generally successful in steering new buildings towards existing settlements. The exception to the general restriction is housing for people engaged in agriculture and forestry and certain other types of rural employment who, by the nature of the job, have to be located in the countryside.
A planning authority, if satisfied of the need for a new dwelling in the countryside, will usually impose a condition on the consent requiring that the dwelling be occupied only by a person engaged in agriculture or forestry.
The occupation of the dwelling shall be limited to a person solely or mainly working, or last working, in the locality in agriculture or in forestry, or a widow or widower of such a person, and to any resident dependents.*
Clearly, such a condition places a severe restriction on the owner’s ability to raise funding for, or to dispose of, the property. Indeed, where inspectors on appeal have considered proposals to relax the condition they have generally required evidence that the property has been marketed to test whether there is a continuing need for this type of accommodation in the locality. In this process the asking price has to be reduced to reflect the type of user stipulated by the condition. The scale of discount varies, but a rule of thumb is 25% to 35% of the open market value of the dwelling. Reducing the asking price in this way, so the argument goes, provides a genuine opportunity for purchase by persons who will comply with the condition.
Non-compliance with the condition
There can be many reasons why the condition is not being complied with. The original developer may have sold off the dwelling from the farm unit as soon as it was built. This does not automatically mean a breach of planning control, but if the occupant does not comply with the condition then a breach has commenced.
An occupier’s change in employment may create doubt over whether the condition is being complied with. Changes in the economic fortunes of agriculture in recent years have put pressure on farmers’ income. It may no longer be the case that an occupant of a dwelling subject to this condition is “solely” or “mainly” working in agriculture or forestry. Many farmers have diversified into non-agricultural activities, deriving income from outside the land which they previously worked full time. It also may be the case that the farm has a number of diversification projects which have received planning permission, such as alternative uses of farm buildings, and which change the employment character of persons working on the farm.
The planning authority’s power to initiate enforcement action is discretionary and can be taken “. . . when they regard it as expedient”. (PPG 18 Enforcing Planning Control December 1991). Normally, an authority will carry out an information-gathering exercise before initiating formal enforcement action and an owner or occupant of a dwelling may be invited to discuss matters informally with the planning or enforcement officer. Typically, questions will be asked about the proportion of time in employment spent on and off the farm, the proportions of income earned from agriculture and non-agricultural employment. The authority may also request to see the farm’s accounts.
“Last working . . . in agriculture” is an alternative way of complying with the condition, but what does this mean? Inspectors have interpreted the phrase as meaning a retired farmer or one who is unemployed. For example, working in a garage after having initially worked on the farm would not comply[1] .
Enforcement Pre-Planning and Compensation Act 1991
The period of time during which a planning authority could take enforcement action against breach of condition on a planning consent, before the changes came into effect on July 27 1992, was any time from the end of 1963. Building operations and changing the use of a building to a dwellinghouse were subject to the four-year rule. Included within this four-year immunity from enforcement action rule was:
. . . the failure to comply with any condition or limitation which relates to the carrying-out of such operations and subject to which planning permission was granted for the development of that land . . .
(former section 172(4)(b) of the 1990 Act).
This created uncertainty over whether an occupancy condition on a consent for operational development came within the four-year rule. The Court of Appeal in Harvey v Secretary of State for Wales [0] 25 EG 79 held that a notice seeking to enforce a condition that required an existing building to be demolished, or its use changed to a specified use, upon the erection and beneficial occupation of a replacement building was subject to the four-year rule. The breach of control in that case was therefore immune from enforcement action because more than four years had elapsed since enforcement proceedings had begun.
A recent planning appeal near Brentwood[2] considered an alleged breach of a condition restricting occupation of a new house:
The proposed house hereby approved shall only be occupied by a person occupied full-time on the golf course or persons employed or last employed locally in agriculture or forestry and the dependents of the same.
At the time when the enforcement notice was served, the occupier was no longer employed in one of the above occupations and traded in wholesale nursery and florist goods. The appellant argued successfully that the breach was immune from enforcement action because it had commenced more than four years before the serving of the enforcement notice. The Harveycase featured in submissions made by the appellant at the inquiry, and the inspector accepted that the ruling applied to every condition attached to a planning permission authorising operational development. (The law has since changed, as explained in the next section.)
The Planning and Compensation Act 1991 – new powersWith effect from July 27 1992 there is a time-limit of 10 years for taking enforcement action against any breach of condition or limitation on a consent, including one where the breach is of an occupation condition imposed on permission for the erection of a dwellinghouse. The only exception is where the breach consists of using a building as a single dwellinghouse and the time-limit in this case is four years from the date of the breach.
However, where immunity from enforcement had already been achieved by virtue of the four-year rule before the new provisions came into effect (July 27 1992), that immunity is protected by section 4(2) of the new Act. So, a dwelling with an agricultural occupancy condition which was not occupied in accordance with that condition for at least four years before July 27 1992 is now effectively “dead” for enforcement purposes.
The 1991 Act also introduced some new enforcement powers which planning authorities may well use in relation to agricultural occupancy conditions. A planning contravention notice is intended as a precursor to an enforcement notice and is served where the authority suspects that a breach is taking place. The recipient has to reply giving information which has been requested and the authority may then offer a chance to remedy the breach before stronger action is taken. There is no appeal against supplying the information, and if this is not done within 21 days of receiving the notice then an offence is committed with a fine on conviction.
An authority can also issue a breach of condition notice against which there is no right of appeal. The period for compliance will be not less than 28 days, which may be extended by additional notices at the discretion of the planning authority. This is potentially the most effective enforcement weapon in the authority’s armoury and could mean an occupant having to vacate at short notice if he/she does not comply with the condition.
Certificate of lawful use or development
A new certificate, known as a certificate of lawful use or development (LDC), came into effect on July 27 1992. This replaces the established use certificate (EUC) as a means of guaranteeing immunity from enforcement action, subject to certain rules, for breaches of planning control. Whereas to qualify for an EUC, an unauthorised use had to have been undertaken continuously since the end of 1963 and be current at the time of the application, the criterion for an LDC is 10 years from the date of the breach. Para 9(3) of Circular 17/92 explains the new rule:
. . . this new 10-year time-limit . . . applies to breaches of planning control involving any material change in the use of land (other than a change to use as a single dwellinghouse) and to any breach of condition or limitation (other than one where the breach consists in using a building as a single dwellinghouse, but including one where the breach is of an occupancy condition imposed on permission for the erection of a dwellinghouse). (Emphasis supplied.)
The new LDC has the benefit of conferring lawfulness upon the use subject of the certificate, which was not the case with the old established use certificate. Lawfulness brings with it “permitted development” rights and the right to revert to the lawful use if a subsequent unauthorised use is successfully enforced against by the authority; not the case with an EUC.
Compliance after non-compliance
So long as the four-year period took place before July 27 1992 this is sufficient to meet the requirement for a certificate of lawful use. The condition effectively “died” for the purposes of enforcement at the end of the four-year period; it cannot be revived or the consent implemented a second time. The occupation by someone complying with the condition is irrelevant; the planning authority would be unable to enforce against a new occupier who did not comply with the condition[3] . Since July 27 1992, of course, the relevant period for this type of breach is 10 years.
Vacant now, but non-compliance in the past
If the dwelling was occupied for the requisite four-year period in breach of the condition then the fact that it is simply vacant has no bearing or relevance to the argument. The planning permission cannot be “abandoned”. A recent case[4] , discussed what is meant by occupation of a dwellinghouse. Judgment in the case inclined to the view that a person does not have to be continuously present in a house to occupy it. The commentator on the case in the Journal of Planning and Environment Law quoted the words of Lush J in R v Assessment Committee of St Pancras (1876-77) 2 QB 581:
If, however, he (the owner) furnishes it, and keeps it ready for habitation whenever he pleases to go to it, he is an occupier, though he may not reside in it one day in a year.
Summary
The planning system permits housing in the countryside, as an exception to the general rule of restraint, for persons needing to work in agriculture and forestry. These properties are usually subject to a planning condition restricting occupation, which thereby restricts the properties’ value. Until recent changes in the law, owners or occupiers who did not comply with the condition faced the risk of enforcement action unless a continuous breach of the condition could be proved back until the end of 1963. Transitional provisions in the Planning and Compensation Act provide immunity against enforcement action if the breach went on for four years prior to July 27 1992.
Now, the breach has to take place for 10 years before it is immune from enforcement and eligible for a certificate of lawful use. Owners of property with this type of restrictive condition, and which is not being complied with, should consider carefully whether such a certificate can now be obtained.
References
[1] Planning appeal APP/C/88/U1430/16, May 23 1989.
[2] T/APP/C/89/HI515/5-6/P6, Brentwood District Council, date of decision July 11 1990.
[3] Bilboe v Secretary of State for the Environment (1980) 254 EG 607.
[4] Mitchell & Mitchell v Secretary of State for the Environment and Braintree District Council [1992] JPL 553.
*Annex E to PPG 7 The Countryside and the Rural Economy January 1992.
Andrew McCafferty is senior lecturer in planning and development, University of Northumbria.
