Removing an agricultural occupancy condition

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27 July 2010

A breach in a planning condition achieves immunity from enforcement action after the end of the period of 10 years beginning with the date of the breach. The 10 years drops to 4 years if the change of use is to use as a single dwelling house.  Thereafter the ongoing lawfulness of the breach can be proven through an application for a Certificate of Lawfulness. However the grant of a Certificate is not as certain as this deceptively simple concept might seem; as two recent cases confirmed.

A breach in a planning condition achieves immunity from enforcement action after the end of the period of 10 years beginning with the date of the breach. The 10 years drops to 4 years if the change of use is to use as a single dwelling house.  Thereafter the ongoing lawfulness of the breach can be proven through an application for a Certificate of Lawfulness. However the grant of a Certificate is not as certain as this deceptively simple concept might seem; as two recent cases confirmed..

The first considered a breach of an agricultural occupancy condition and held that even though there had been a continuous 10 year period of breach in the past a period of subsequent compliance meant that the immunity was lost.  Even a period of non-breach, where the property is merely unoccupied, could be enough to lose the immunity.

That being said the second case confirmed that naturally occurring short breaks between lettings to a series of non-agricultural tenants or even periods when refurbishment works are being carried out with the aim of re-letting to non-agricultural tenants may not constitute a break in the breach timeline.

To remove a troubling agricultural occupancy condition you must be able to tick all of the following boxes:

•                     there must have been a continuous breach of the condition for a period of 10 years;

•                     that breach must be subsisting at the time of the application;

•                     there must be no gaps in that non-compliance period; and

•                     you must have sufficient evidence to prove the above on the balance of probabilities.

It is also important to remember that the principle set out in the first case carries on after you have gained your Certificate.  If you were to allow future compliance with the condition then, despite the existence of a Certificate of Lawfulness, the immunity clock restarts effectively expunging the Certificate.  To avoid this the additional step of applying to remove the condition should be taken once you have your Certificate.

Ellis v Secretary of State for Communities and Local Government and Chiltern DC

Basingstoke & Deane BC v Sec of State for Communities and Local Government

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