In Focus: Occupancy conditions for agricultural and rural workers – how do they work?

Agricultural or rural workers occupancy conditions, historically referred to as agricultural ties, are often of interest to farmers, rural-based workers and landowners. While the concept of occupancy conditions is simple, they can raise some complex issues and as a result, we are frequently asked about them by our members.

Common questions come from both ends of the spectrum, from how members can achieve planning permission for a dwelling on their holding, and how to remove these conditions from an existing property.

In this article, we take a look at what these planning conditions are, how they impact farmers/rural-based workers and other land/business owners, and how you may be able to remove them from a property on your land.

Planning policy for development in the countryside is restrictive and generally seeks to prevent the development of isolated sites. However, certain planning polies recognise that there is sometimes a need to develop residential dwellings specifically for rural workers, and this is where occupancy conditions come in.

In simple terms, an occupancy condition is an instrument of planning that is designed to restrict who can reside in certain dwellings in the countryside. Traditionally, it restricted the lawful occupancy of a dwelling to someone formally employed in agriculture or forestry on a specific holding or in the area near to the dwelling.

Most often, occupancy conditions are imposed at the time an of planning consent by way of a condition attached to the decision notice. In other cases, they can be backed up through a separate legally binding planning obligation (often called a section 106 agreement) which re-enforces the condition and sometimes links the dwelling to the land or extends the condition to other existing dwellings.

In a major victory for the CLA’s lobbying efforts, the National Planning Policy Framework (NPPF) extended the agricultural occupancy restriction to wider rural workers such as those employed in equestrian businesses and other rural enterprises rather than just farmers. This reflects the changing nature of the rural economy over the last 30 years, and is likely to become increasingly more important going forward, especially with so few available and affordable rural houses to accommodate key employees.

The main advantage of agricultural and other rural occupancy dwellings is that it enables farmers and other business owners to achieve planning consent for much needed rural dwellings in locations where planning permission would otherwise not be granted. There are some strict conditions around this, which we will delve into later in this article, but if those conditions are met, planning permission can be achieved where otherwise it would not be.

However, there are drawbacks with this. The main one is that such a dwelling cannot be occupied by someone who does not meet the exact wording of the condition. This may raise issues if the property is inherited by someone who wishes to live in it but cannot comply with the restriction.

Also, as there is a firm restriction on who can occupy the property, the value of the property will be significantly reduced compared to similar properties able to be sold on the open market without restrictions.

However, it should be remembered that the law applies only to the person who lives in the property, not the property owner. This means that anyone can buy a property with an agricultural occupancy condition in place, but only people who comply with the conditions can actually live in it.

It should also be noted that every local authority has slightly different policies relating to these types of dwellings and so you may need to check the local plan or their other planning documents.

As discussed earlier, the point of agricultural occupancy conditions is to enable farmers and certain landowners to achieve planning consent for a rural dwelling in a location where it would normally be refused.

However, to achieve this, the dwelling and the business it is attached to, must fulfil one overriding criteria in the NPPF – this is “an essential need for a rural worker, including those taking majority control of a farm business, to live permanently at or near their place of work in the countryside.”

National planning guidance goes on to say that other considerations should include evidence of the necessity for on-site attention 24-hours a day; that the enterprise will remain viable for the foreseeable future; where the dwelling is essential for the continued viability; whether the need could be met through improvements to existing houses, and; for new enterprises temporary dwellings might be more appropriate. Further to this, extra criteria may also be imposed by local plans as well such as a restriction on the size of dwelling that can be applied for, ensuring that any dwelling is modest and appropriate for a ‘rural worker’.

Livestock farming offers an example of how such a dwelling might be justified. As the animal welfare requirements of managing livestock and poultry generally need round-the-clock presence, a dwelling built for a stock person will often meet the conditions of an agricultural tie. With the expansion of the NPPF to wider rural workers, a financially sound equine business, for example, may also fulfil the necessary conditions, leading to a successful planning application.

However, even for a livestock, poultry or equine business, planning permission is not guaranteed. That is because there is another condition that needs to be met for an application for a dwelling with occupancy condition to be successful – namely that there must be a lack of alternative accommodation on the farm or owned by the business itself, or in the local area.

If there is, planning permission is likely to be refused.

For arable farming, justifying a dwelling or additional dwelling is even harder. Many of these businesses can be run remotely which makes justifying an onsite dwelling extremely challenging.

Another aspect for farmers and landowners to consider is whether an existing building could be converted into a dwelling, as it may be possible to do this using permitted development rights (Class Q). This could be an easier process than navigating the full planning process and could not only enable a larger dwelling in some cases but would also allow the applicant to gain a dwelling without an occupancy condition (as these cannot be imposed on dwellings that are granted consent through the permitted development process).

However, this approach clearly relies on having a redundant, structurally sound, well located farm building which is capable of being converted in a cost-effective manner.

For every question we are asked about achieving planning consent for a dwelling with an agricultural tie, we get another asking how to remove one. This is because as businesses and technology develop and change, workforce demands also change, meaning a dwelling many no longer be needed for a rural worker.

Fortunately, the NPPF does recognise this, however in reality, having an agricultural tie lifted is not particularly easy.

There are two ways this can be achieved, the ‘naughty but eventually legal’ route, or by demonstrating there is no requirement for a property with an agricultural tie in the area – essentially exactly the opposite argument of that used to acquire planning permission in the first place.

This route involves a prolonged breach of your planning consent and is risky in terms of enforcement, or not being able to evidence the breach.

If the owner of a dwelling with an agricultural tie can prove – and the onus here is on the word prove – that the dwelling has been occupied by a non-qualifying tenant for longer than 10 years, in breach of lawful occupation, they can apply for a CLEUD (Certification of Lawfulness of Existing Use or Development).

For this to be successful, the onus is very much on the applicant to evidence that a continuous breach for 10 years has occurred. Although the application will allow for very short-term voids of the property due to re-letting to new tenants, longer voids will invalidate the application for a CLEUD, and the clock starts again.

As a result, this is not a strategy we recommend, particularly as enforcement action can be taken by the local authority at any time. However, if these conditions already exist, or a breach is approaching the 10-year stage, it can provide a very useful opportunity to lift an agricultural occupancy condition.

Applicants must bear in mind, though, that being granted the certificate doesn’t actually remove the condition, it only guarantees future enforcement action will not be taken due to the breach. For a full removal of the tie, a further planning application (known as a Section 73 Application) will be necessary.

An easier and definitive solution to removing a tie is to demonstrate there is no longer any requirement for such a dwelling. It is important to observe the exact wording of the tie as you are likely to have to prove that there is no need for the dwelling both by the business that owns it, and crucially by any other qualifying business in the area.

In most cases, this means marketing the property with the condition in place, then proving there has been no interest in purchasing it from any party.

For this route to be successful, applicants must market the property for a minimum of 12 months at a price reflecting the tied nature of the dwelling. It is also good practice to notifying local farms and businesses in the area of the availability of the property to thoroughly test all aspects of the market.

If, after the 12 months have elapsed, there has been no interest in the property with the agricultural occupancy in place, then this evidence can be used as part of a Section 73 application to the local authority to remove the condition from the original planning consent. However, if this approach is to be taken, the more qualified parties the applicant approaches, the stronger the case will be to have the occupancy conditions removed – assuming they have no interest in purchasing it.

In this situation, the applicant must be prepared to foot the costs of marketing the property, but in the case of a successful application, the investment should be worth making as the property will gain significantly in both asset value and rentable income potential, generating a return on the cost of having the condition removed.

This has been a top-level tour of agricultural occupancy conditions, which are a relatively complicated piece of national planning policy requiring a nuanced approach to successfully navigate.

There is more detail that needs to be considered when dealing with occupancy conditions, so if you would like more information, become a CLA member and benefit from free, expert advice on this and a host of other planning issues.