Business Clinic: Lifting an agricultural tie on property

Whether it’s a legal, tax, insurance, management or land issue, Farmers Weekly’s experts can help.

Here, Alex Madden of Thrings advises on lifting an agricultural tie from a farmhouse.

Q: We are trying to lift an agricultural tie from our house. The wording is:

Occupation of dwelling by persons employed or last employed in agriculture or in an activity mainly dependent upon agriculture.

Has anybody come across an agricultural tie with this particular wording and/or are aware of any case law where it has been tested and been removed?

See also: Business Clinic: A tricky family farm ownership dispute

A: In England, the standard form of wording for an agricultural occupancy condition is as recommended in model condition 45 of the retained Appendix A of the now-cancelled government circular 11/95.

It reads: “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 other resident dependents.”

The first observation here is that the wording of your condition is not in the standard form – and there appears to be a plausible explanation.

Essentially, the very first ministerial guidance issued on the subject of agricultural occupancy conditions, which dates back to 1948, advised restricting occupation to members of the local “agricultural population” and defined those words as including those employed in “an industry mainly dependent upon agriculture”.

“Activity mainly dependent upon agriculture” is thus intended to cover those “mainly working in agriculture”.

The officer’s report that sits behind the decision notice granting the planning permission (if it still exists) may provide some useful background information.

In practice, the test for satisfying the term “mainly working” or “mainly employed” in agriculture, and thus complying with the condition, will be whether more than 50% of a normal working week is spent in genuine and productive agricultural work.

If it can be demonstrated that time spent is less than 50% of a normal working week, the condition is not being complied with.

Case law

By way of an example, the divisional court found in Epping Forest DC v Scott in 1987 that the condition had not been complied with.

The circumstances were that the husband had a business as a builder – which was his main occupation – and he worked on nearby land every evening and most weekends.

His wife also worked every day and most weekends on the nearby land. However, the land did not produce a living wage.

At this stage, it is useful to look at the definition of agriculture contained within section 336(i) of the 1990 Town and Country Planning Act which states:

“Agriculture” includes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes, and “agricultural” shall be construed accordingly”.

Further appeal decisions where it was found that the person was not engaged in agriculture included the occupation of a dwelling by employees of an agricultural estate as a domestic help and as a gardener.

In that case the inspector found that the employment was residentially related and the appellants were not members of the “local agricultural population”.

Similarly, where the occupier’s last employment was in a wholesale fruit and vegetable distribution firm that did not meet the test of being employed in “an industry mainly dependent on agriculture”.

Ultimately, whether or not the condition has been complied with will require a detailed analysis of the employment history of the occupiers of the dwelling.

And while the appeal decisions are useful in that they provide an indication as to likely trends and inspector interpretations of conditions, they are persuasive rather than binding.

This is a complex situation and both the law and procedure heavily depend on your specific facts. It is therefore recommended that you seek specialist independent legal advice to assess your situation.