Barker Gotelee

Judges never seem to tire of hearing cases involving residential properties which are subject to agricultural occupancy conditions (often mistakenly referred to as agricultural ties).  Yet another such case (Ellis v Chiltern District Council) has recently been fought out in the High Court.

Planning regulation will usually prevent the construction of new houses or bungalows outside towns or villages.  There have always been exceptions for residential properties which are specifically required to house agricultural workers who need to be near their place of work, typically to look after livestock round the clock.

Such properties are only granted planning permission on the strict condition that they are occupied by a person “employed or last employed locally in agriculture” and his or her immediate family.

As the agricultural workforce continues to reduce, many of these tied properties are no longer occupied by people employed in agriculture.  Often they are let to tenants who have no connection with agriculture at all, in breach of the planning condition.

If there has been no agricultural occupation for a period in excess of ten years, planning law provides a very useful protection from the risk of enforcement proceedings in the form of a Certificate of Lawfulness of Existing Use and Development (known as a “CLEUD”).  Obtaining a CLEUD will not remove the planning condition but it will protect the owner from enforcement action for breach of the condition, allowing the property to be let or even sold to a non-agricultural worker.

To obtain a CLEUD, the owner has to prove to the planning authority that there has been a continuous breach of the occupancy condition for a period in excess of ten years.  The recent case of Ellis v Chiltern DC focused on the issue of “continuous” in this context.  The cottage in question had been occupied in breach of an occupancy condition from 1961 to June 2000.  From June 2000 until October 2001 it was vacant while renovations were carried out.  It was then occupied again in breach of the condition by tenants but with several vacant gaps while tenants moved out and others moved in.  The owner applied for a CLEUD in March 2007.

Chiltern DC argued that, during the periods that the property was vacant, there was no breach of the occupancy condition and the owner had, therefore, not proved a “continuous” period of breach in excess of ten years.  The High Court judge agreed and refused to overturn the Council’s decision not to grant a CLEUD.

A salutary lesson to owners intending to seek a CLEUD:  if you can show a breach for at least ten years, make sure there are no periods in between when the property was empty.

Toby Pound

© Barker Gotelee