With the sharp rise in rural residential property values over the last decade or so, many landowners have looked for ways of removing the agricultural occupancy conditions (AOC) attached to their properties so that they can either be sold or used for commercial rents.
Under the Town and Country Planning Act (1990), planning authorities can grant landowners permission, under an AOC, to build a residential property on condition that it is occupied by either a current, or former, agricultural worker. Attempts to avoid or remove AOCs so that properties can be sold or rented on the open market have focussed on applying for a certificate of lawful existing use or development (CLEUD) which then gives immunity from enforcement for breach of an AOC.
However, CLEUDs can only be issued where the property has been occupied in clear breach of the AOC for a continuous period of not less than 10 years and two recent cases have shown that the conditions relating to a breach are not entirely clear.
In the first case (Ellis v Secretary of State for Communities and Local Government (2009) EWHC 634 (Admin)), Mr Ellis’s cottage had been occupied, in breach of the AOC, continuously between 1961 and 2000. The property became vacant for a 12 month period while it was being renovated for reletting before again being occupied in breach in of the AOC. In March 2007, Mr Ellis submitted a CLEUD application while the cottage was, once again, vacant.
The CLEUD was rejected on the grounds that first, the cottage was vacant and therefore was not being occupied in breach of the AOC and second, the ten year ‘clock’ had been reset when the cottage was vacant in 2000 for renovation – despite having been continuously in breach of the AOC for the previous 39 years.
The second point, relating to the resetting of the ten year clock, was tested a few weeks later in another case (Basingstoke and Deane Borough Council v Secretary of State for Communities and Local Government (2009) EWHC 1012 (Admin)). In a situation similar to the Ellis case, the cottage in question had also been in breach of the AOC for long periods but also been vacant for renovating and marketing purposes. The case was won on a technical point but, in addition, the Court accepted that the periods during which the cottage was empty were used to promote the further breach of the AOC in order to make the property more attractive to non-AOC compliant occupants. Therefore, the Court concluded that those vacant periods counted towards the 10 years’ continuous breach requirement.
This decision would appear to conflict with the decision in ‘Ellis’ where the local planning authority's refusal of a lawful development certificate was upheld because the cottage was unoccupied at the time of the CLEUD application. It is not entirely clear whether the Court considered that the renovation period interrupted continuity of the breach. However, Ellis does establish that a use which has been granted immunity can once again become unlawful even though it has not been abandoned and there has been no material change from the lawful use.
It is important to understand that the courts have also recognised that all uses have periods of inactivity, such as weekends or holiday periods. There will be borderline cases where it becomes a matter of judgment whether a break in continuity can be said to represent a permanent cessation of the use, or something less in which the site or premises can properly be described as remaining in use throughout for the activity in breach.
The advice to all potential CLEUD applicants is to make their applications as soon as they have sufficiently robust evidence of 10 years continuous use in breach of the AOC. They should also keep good records of their intention to continue to breach the AOC during any period in which the property is not actually occupied. This will hopefully reduce the risk that a period of non-occupation will reset the ‘qualifying clock’. However this will also depend upon the nature and length of the interruption.
Landowners should also be aware that the planning authority may take enforcement action if it becomes aware of occupation in breach of an AOC. It is therefore important to be able to recover possession from a tenant as quickly as possible prior to a CLEUD being granted.
If you should require any further information about applications for a certificate of lawful existing use or development, please contact Paul Rice.
First published in NEWS from the Farming and Rural Business Unit Summer 2010
