Lorrainelovesplants
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new court ruling on ag tie conditions
Any legal brains out there who can help with some info.
Apparantly, recently there has been a high court ruling stating that as it is difficult for people to make a living on an agricultural occupancy residence, the court now accepts that the occupier IS fulfilling the conditions of the tie IF he/she works at least 50% of his time engaged in an agricultural activity on it. The idea of making an income has been (apparently) replaced with time allowance spent 'working' the property or working in an agricultural occupation.
Can anyone give me further info re this?
Lorraine
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Tensing
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Sounds interesting
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Lorrainelovesplants
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Got the info from an agricultural estate agent, but without really grilling him couldnt get any more info.
But could be very interesting (especially for me).
Need someone to find the case (or point me in the direction of where to look) to see what the actual wording is.
Could raise the value of ag tie properties ....
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Jb
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| Lorrainelovesplants wrote: | | ... Could raise the value of ag tie properties .... |
Thereby placing them outside the reach of agricultural employees?
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Lorrainelovesplants
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I think that the majority of ag tie properties in Cornwall are out with the range of the bonefide agricultural worker generally...
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Mary-Jane
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Re: new court ruling on ag tie conditions | Lorrainelovesplants wrote: |
Any legal brains out there who can help with some info.
Apparantly, recently there has been a high court ruling stating that as it is difficult for people to make a living on an agricultural occupancy residence, the court now accepts that the occupier IS fulfilling the conditions of the tie IF he/she works at least 50% of his time engaged in an agricultural activity on it. The idea of making an income has been (apparently) replaced with time allowance spent 'working' the property or working in an agricultural occupation.
Can anyone give me further info re this?
Lorraine |
Any idea of the names of any of the parties?
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Lorrainelovesplants
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None - nor the timing - just 'recently'. The situation was not conducive to putting the man on the rack...
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Mary-Jane
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| Lorrainelovesplants wrote: |
None - nor the timing - just 'recently'. The situation was not conducive to putting the man on the rack... |
There's a whole pile of recent High Court judgments concerning agricultural occupancies - but the areas of law are varied. Is it whether a farmhouse can still be legally considered to be a 'working farmhouse' in relation to inheritance tax?
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Lorrainelovesplants
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No - its regarding a relaxation concerning the amount of time spent fulfilling the restriction rather than the amount of money (ie wages) that you make fulfilling the restriction, which Im led to beleive means that as long as the occupant spends at least 50% of your working week working on the holding or as an agricultural worker you fulfil the tie, instead of having to prove that you made a certain amount. Bit confusing as to how this is actually any different from what went before - but he was quite insistant that this was a relaxation of the rules...
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Mary-Jane
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| Lorrainelovesplants wrote: | | No - its regarding a relaxation concerning the amount of time spent fulfilling the restriction rather than the amount of money (ie wages) that you make fulfilling the restriction, which Im led to beleive means that as long as the occupant spends at least 50% of your working week working on the holding or as an agricultural worker you fulfil the tie, instead of having to prove that you made a certain amount. Bit confusing as to how this is actually any different from what went before - but he was quite insistant that this was a relaxation of the rules... |
But if the High Court made that statement it must have been in the context of a particular case...in other words what was the case about in the first place for the High Court to accept the above?
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Lorrainelovesplants
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Dont know the context - as I said, I dont know any of the particulars or the names or when. It was mentioned in the course of conversation and I am trying to see if any downsizers are aware of anything. I have spoken to the estate agent and he says his colleague knows more, but he's away for a fortnight.
Im in the dark, but tantalised!!
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wellington womble
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I'd like to find out more about this too - for example, if I am the agricultural 'worker', either spending 50 percent of my time (which is easy) or 50 percent of my income (which is easily doable) on the holding, can my partner and I still have a joint mortgage on the property? The practical upshot of that, is if it is allowed, he can earn the money to pay the mortgage, and I can make pocket money off the holding. However, if it is 50 percent of the mortgage holders income (ie both of us), then it's not so viable.
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Treacodactyl
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When I looked into it it was 50% of both incomes. I thought the agricultural ties depend on whatever restrictions the council decide to put on a property and can vary a fair bit so I'm not sure how a high court ruling would alter much, I'm happy to be proved wrong though.
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Karence
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New Court Ruling on Ag Ties...Hi Lorraine,
Just wondering if you ever did find out more info about this High Court case....
Ta,
Karen
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Lorrainelovesplants
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what Ive been told (legally) and this can vary from councilto council is that the occupier or occupiers have to devote at least 51% of their working week to working the holding in horticulture, agriculture or forestry. So, if there are 2 of you, one can be working the holding full time and the other working elsewhere for slightly less time than the other. The income does not matter. they are notinterested in what you make, apart from the fact that it is your main occupation. the inferrence is that agriculture should b your main sourse of income......(read between the lines).
As for occupation - someone who works as a sales person in Cornwall farmers dosntcount because they are not directly gaining their employment or income from the holding. Likewise if you teach agriculture at an agric college you are not (legally) fulfilling the tie.
As for mortgage - you will find that the mortgage co dont care where your income comes, only that you have a regular income from a job or employment or self employment to cover the mortgage. If they are really adamant you can always get a self cert mortgage.
I am no further forward with details of the high court ruling,but have been told that councils will notwant the adverse publicity of putting 'real' AOC residents out of their homes. There will always be people who abuse the system, but lets face it,in this economic climatewith agriculture going down the pan in the UK, how many families can survive on either an agricultural wageor self employed in agriculture.
Ive really said it all now, and am leaving this nonsensicle aborration of British law to fester and die, as im sure it will if it ebver goes to the European court of human rights.
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Treacodactyl
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| Lorrainelovesplants wrote: | | what Ive been told (legally) and this can vary from councilto council is that the occupier or occupiers have to devote at least 51% of their working week to working the holding in horticulture, agriculture or forestry. |
That would be great for us! If we could do what we're planning I'd be working 100% on the holding and OH about 50% and we might even employ others, but we would still probably earn more from the non-holding employment. But if it's time rather than income that matters then we should be fine.  At least it's something we can ask the council planners to see what they say.
Many thanks Lorraine.
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Lorrainelovesplants
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Beware the council and prepare beforehand.
Tell them you have consulted tyour solicitor with your plans (and do this), and that he is in agreement with you that you do fulfil the conditions. They will ask you for a letter in writing stating what you intend to do on the holding and how much timeyou will spend doing it. keep the letter as brief as possible, again mentioning that your solicitor has agreed that you will fulfil.
The council has no legal right to inspect your books or to ask how much you are making.
Ive been told that i can occupy my holding and make a loss aslong as it is my main source of employment!! (how ludicrous is this).
I have tried getting more info on this from planners the council, local govt, agri colleges and even some unies that teach law. NO-ONE wants to know. And Im fedup trying to get info alone.
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Dr Rob
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I've trawled the cases and other legal materials but can't find a recent case on the aspect of agricultural occupancy conditions which concerns you.
Obviously, local authorities have their own policies on AOCs but the conditions they impose on planning consents are all very similar namely that the occupation of a dwelling 'shall be limited to a person solely or mainly employed, or last employed, in the locality in agriculture.....' Without this condition the planning application would be refused as the potential house would be classed as outside a recognised settlement ie in the open countryside.
The important words (I think) from your point of view are 'solely or mainly'. If you, as occupier, spend at least 51% of your working day employed in agriculture (and obviously the amount you earn may be evidence of this) you should be ok.
Incidentally, I don't agree with the criticisms of this policy. It gives local authorities the option of granting permission for houses outside settlements in genuine cases (which should exclude wealthy 'lifestyle farmers'). The problem with it in practice is that permission is sometimes granted by farmer councillors, who know the applicant, in respect of non-viable holdings of 15-20 acres. The property is later sold on to a non-farmer (often retirees) who then apply to have the condition removed.
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wellington womble
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Doesn't that leave it very open to abuse (to lifestyle farmers) So, just an as example, if my husband and I were to buy a property with ag tie, and he worked to pay all the bills and I spent all my time messing about with alpacas and chickens while I was at home with rugrats, that would be more than 51 percent of our time as joint mortgagees. I would say that's lifestyle farming, the majority of the money would be coming from non-agricultural income - but it would fulfill the time conditions of the tie, wouldn't it?
I'm not saying it's right or wrong (nor is it a plan of ours) and I supposed any system is open to abuse. I also wonder about the scope of agricultural - in the scenario above, a considerable amount of time would need to be spend processing fleece. Is knitting agricultural? 
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Treacodactyl
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| Dr Rob wrote: | | Incidentally, I don't agree with the criticisms of this policy. It gives local authorities the option of granting permission for houses outside settlements in genuine cases (which should exclude wealthy 'lifestyle farmers'). The problem with it in practice is that permission is sometimes granted by farmer councillors, who know the applicant, in respect of non-viable holdings of 15-20 acres. The property is later sold on to a non-farmer (often retirees) who then apply to have the condition removed. |
If it's 51% of your time then the policy seems much more reasonable, 51% of income would seem to prevent people using other income to help fund agriculture.
I thought the council I spoke to said it was over 50% of income that mattered but I'll check with them again.
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Dr Rob
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Not quite so simple (inevitably). You must read the words in the condition (ie 'solely or mainly employed ...... in agriculture') together so that proof of 'employed' on any challenge by the local authority will inevitably involve income; and 'agriculture' is defined by the 1990 Act.
In my experience, if it helps, local authorities tend not to pick up breaches of these conditions very readily. A condition usually becomes an issue when the current owner of affected land applies for its removal, usually on sale. An application won't be granted in these circumstances unless the owner can show that every effort has been made to dispose of the property, with the condition, on the open market, without success.
Incidentally, if someone is in breach of the condition (ie no agricultural activities by the occupier) for at least 10 years without local authority challenge, the breach is exempt from enforcement action.
In Wales, agricultural occupancy conditions come under T(echnical)
A(dvice) N(ote) 6. The Welsh Assembly Government is currently consulting on amendments to the policy - see 'Planning Policy Changes to Support Sustainable Development in Rural Areas:
Meeting Housing Needs' (July 2008). It's online.
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gil
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But that sounds as though the 'occupant' is one person, or dates from a time when one person was the breadwinner in a family.
What about joint ownership where one person works fulltime in ag and the other doesn't ?
Especially these days when ag wages/returns are low compared to other occupations.
Is this an instance where the law has not evolved to take account of social and economic change ?
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Treacodactyl
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| Dr Rob wrote: | | Not quite so simple (inevitably). You must read the words in the condition (ie 'solely or mainly employed ...... in agriculture') together so that proof of 'employed' on any challenge by the local authority will inevitably involve income; and 'agriculture' is defined by the 1990 Act. |
This may sound like a daft question, but where do you get your mits on the condition? Estate agents don't seem to have copies and councils haven't been too forthcoming when I've contacted them. Would it be in the HIP (don't laugh)? As it's something that could well affect whether you actually offer on a property I don't want to wait until you're half way through the purchase process to find out the exact details!
| Dr Rob wrote: | | In my experience, if it helps, local authorities tend not to pick up breaches of these conditions very readily. A condition usually becomes an issue when the current owner of affected land applies for its removal, usually on sale. An application won't be granted in these circumstances unless the owner can show that every effort has been made to dispose of the property, with the condition, on the open market, without success. |
I get that impression from estate agents, i.e. I feel some expect people to buy the property and not worry about the condition. However, if I'm going to invest large amounts of time and money I'd rather not take the risk of being forced out, I'd rather discuss my plans with the council before purchasing a property. However (and I know this may come as a shock to most people) but in my previous dealings with councils it's quite hard to get an accurate answer from them.
Many thanks for your help Dr Rob.
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Dr Rob
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Treacodactyl:
Here's a standard condition -
'The occupation of the dwelling shall be limited to a person solely or mainly employed, or last employed, in the locality in agriculture or in forestry, or a widow or widower of such a person, and to any resident dependents'
Estate agents are usually very careful to highlight the fact that a property is subject to such a condition (misrepresentation otherwise) and, of course, the presence of the condition limits the market and will reduce the asking price by about one third. Solictors should always pick this up (negligemce otherwise) from the estate agent, replies to standard form enquiries, and the search of the local authority (it's registrable as a local land charge).
Gil:
In planning terms the occupant is one person solely or mainly employed in agriculture, but you'll note that the condition covers others also.
I haven't mentioned 's.106 agreements' which often accompany planning permissions and are used to impose conditiions which would not be enforceable on a planning permission. A common one with ag occ conditions is that the land will not be sold off separately from the house. The reason for this is obvious
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Treacodactyl
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| Dr Rob wrote: | Here's a standard condition -
'The occupation of the dwelling shall be limited to a person solely or mainly employed, or last employed, in the locality in agriculture or in forestry, or a widow or widower of such a person, and to any resident dependents' |
Isn't that still quite open to interpretation?
For example, my main interest is purchasing some coppiced woodland and bring it back into production and sell coppiced products. This can easily take many years to achieve and I would be self employed with very little money coming in for several years. While we do this my OH might do something which doesn't meet the condition but which brings money on to live. Now I think we would easily meat the condition but I can see others disagreeing with that.
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Karence
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Change in ag tie law!I'm attempting to find out more information from government departments and also will be making an enquiry from a barrister's chambers - will keep you all posted if I find out anything else.
Regards
Karen
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Dr Rob
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As I've already mentioned, it's the activity not the income which is important
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wellington womble
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The difficulties seem to arise because the conditions state 'A person' and most households these days are made up of two of them, rather than A Main Person and a supporting actress. It doesn't seem to account for another wage earning adult (either inclusive or exclusive)
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gil
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However, the clause Dr Rob quoted in response to my comment specifically mentions both a widow (the conventional arrangement, homemaker, blah di blah) and a widower -
hence, as I see it, opening the way up to one party not working on the land and probably having a higher income than the one working the ag tie land, regardless of sex.
Sounds like a result to me.
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RichardW
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In the end it will all come down to how your local council view the rulings. Or it will be up to you to fight a good fight to prove them wrong in court after a long period of appeals.
Richard
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wellington womble
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Exactly, it mentions widows, widowers and resident dependents, but not resident independents (ie a spouse or equivalent who is working outside of agriculture) That leaves it open to people like TD, who's like to obey both the spirit and the letter, and to abuse.
My experience of planners has not been positive, they seem to ignore all the bits they don't like, and I reckon they would bring these things up if they noticed you. I'm not arguing, or trying to be difficult - just trying to get the rules straight, which Gil said, don't really seem very applicable to modern households.
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gil
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Yes, but surely to become a widow/er, one has to have married/living with the person - I'm guessing this clause in former times was to stop widows being thrown off an ag tie property after death of farmer husband. Or at any rate, to prevent the non-ag person being made homeless after being widowed.
However, the implication is that during life, one person worked off-farm, and that could have been either part of the couple.
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Treacodactyl
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| wellington womble wrote: | | My experience of planners has not been positive, they seem to ignore all the bits they don't like, and I reckon they would bring these things up if they noticed you. I'm not arguing, or trying to be difficult - just trying to get the rules straight, which Gil said, don't really seem very applicable to modern households. |
That's my experience as well. I've had to apply for planning to do something that most, if not all, other local properties have done without it.
I've also found it common for estate agents details to be far from accurate and when I question them they just blame the vendors. Perhaps I could make a formal complaint but I don't fancy doing that while I'm still looking for a property. I'm not talking about small things but things like planning details etc.
Sorry Lorraine, going a bit off topic now.
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wellington womble
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| gil wrote: |
However, the implication is that during life, one person worked off-farm, and that could have been either part of the couple. |
Good point - I hadn't thought of it like that.
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resistance is fertile
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There is some good case law on the fact that self sufficiency can remove the need for the income earnt from the farm to be measured in terms of national averages etc.
The basis for this shift, which is recognised within current policy guidance is Petter and Harris Vs Chichester DC.
Time spent occuppied in agricultural work is open to interpretation we use a labour schedule spreadsheet for illustrating such situations to show what needs doing and how long each task takes.If you have a small mixed holding then this soon adds up with standard man days calculated at 8 hours and standard labour units based on 275 standard man days/per anum.
What are your intentions? is it to live at a farm but not farm or are you worried that your smallholding plans might not qualify? I only ask because I think its really important to keep ag ties intact if possible for the sake of the rural economy.
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Dr Rob
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Ag conditionsThe CA decision in Petter is useful for determining the court's approach to the interpretation of planning policy wording, but be careful with it because the facts of Petter were unusual and the decision was based on those facts.
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resistance is fertile
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Its use as precedent is now quite widespread and we have not found it often disputed as long as the case has relevant parallels.
"authorities should take a realistic
approach to the level of profitability,
taking account of the nature of the
enterprise concerned. Some enterprises
which aim to operate broadly on a
subsistence basis, but which nonetheless
provide wider benefits (e.g. in managing
attractive landscapes or wildlife habitats),
can be sustained on relatively low
financial returns.
This wording from PPS7 also makes clear that LPA's need to take account of such situations.
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Treacodactyl
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| Quote: | | Some enterprises which aim to operate broadly on a subsistence basis, but which nonetheless provide wider benefits (e.g. in managing attractive landscapes or wildlife habitats), can be sustained on relatively low financial returns. |
That would sum up what we would like to do. Nice to see that they realise managing the landscape and wildlife habits may not provide any income but provides wider benefits.
Many thanks for that resistance is fertile and I also note your comments Dr Rob.
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resistance is fertile
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| Treacodactyl wrote: | | That would sum up what we would like to do. Nice to see that they realise managing the landscape and wildlife habits may not provide any income but provides wider benefits. |
Worth looking at PPS9 as well then and any local BAP to show support.
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