Originally appeared in Places, April 2012
Owning a house with its own land in the Jersey countryside is a dream for many and a reality for some. But anyone contemplating the purchase of such a property does need to be aware of the tight statutory controls affecting the use of land. The Agricultural Land (Control of Sales and Leases) (Jersey) Law 1974 (the "1974 Law") requires the Planning and Environment Minister's consent to be obtained to all sales, transfers and leases of "agricultural land".
This term is defined to mean "land, including land under glass, used or capable of being used for any purpose of agriculture or horticulture".
However, there is an exemption under which the requirement to obtain the Minister's consent does not apply to the sale, transfer or lease of an established garden measuring not more than one vergée situated within the curtilage of a dwelling house. A vergée is 19,360 square feet or 0.44 acres.
Accordingly, consent does need to be obtained under the 1974 Law if the garden which is to be sold or transferred is larger than one vergée, even if the transaction does not involve any other land. The relevant authority for the purposes of the 1974 Law was originally the Agriculture and Fisheries Committee and consent is still often referred to colloquially as 'Ag and Fish' consent. Applications are now dealt with on behalf of the Minister by the Land Control Section of the Environment Department based at the Howard Davis Farm in Trinity.
The 1974 Law requires the Minister when considering applications for consent to "have particular regard to the desirability of reserving agricultural land for the use of bona fide inhabitants of Jersey engaged wholly or mainly in work of an agricultural or horticultural nature in Jersey, and ensuring that any lease of agricultural land is on terms that encourage the continued cultivation of the land in accordance with the principles of good husbandry".
There is thus a presumption that agricultural land should be used for agricultural or horticultural purposes, and where the land in question is considered viable for commercial agriculture, the norm is for conditions known as '(a) and (b)' conditions to be imposed, in the following terms:
"(a) that the land involved in the transaction, shall not, without the consent of the Planning and Environment Minister, be occupied by anyone other than a bona fide inhabitant of the Island specifically approved by the Minister who is wholly or mainly engaged in work of an agricultural nature in Jersey for his own benefit and profit.
(b) that the land involved is used for agricultural or horticultural purposes only; this excludes the grazing of equine animals and the growing of trees without the written consent of the Planning and Environment Minister."
Where the purchaser is not an agriculturalist, these conditions will be supplemented by condition (e), as follows:
"(e) that the land involved shall not be occupied by the purchaser(s)". When assessing land for the purpose of deciding what conditions should be applied, the Land Control Section consider factors including:
- depth of soil;
- presence of stone.
Some land, whilst being required to remain agricultural land, is considered suitable for use other than by 'bona fide agriculturalists' (i.e. commercial farmers). These wider uses can include:
- tree planting or environmental schemes;
- private horse grazing;
- the creation of orchards;
- the creation of park land;
In such cases, more liberal conditions are applied, such as condition (b):
"(b) that the land involved is used for agricultural or horticultural purposes only."
Only in cases where the land, though technically constituting "agricultural land" for the purposes of the 1974 Law, is not in reality agricultural land will consent be granted on an unconditional basis. An example would be an existing garden with an area exceeding one vergée.
Purchasers of countryside properties will frequently wish to be able to graze horses in the fields forming part of the property. As noted above, the conditions which are imposed on land which is considered viable for commercial agriculture will prevent the grazing of horses without the Minister's consent. In the case of vacant fields over two vergées, the policy of the Land Control Section is only to give such consent by way of a temporary (3 year) licence, and then only if the owner can show that there is no interest in the field from bona fide agriculturalists. This requires the owner to advertise the field in the JEP and the www.gov.je website seeking potential tenants.
In the case of vacant fields under two vergées, it can be possible to secure permanent permission for horse grazing. Again, a prerequisite is for the owner to be able to demonstrate, on the basis of having advertised the land, that there is no demand from bona fide agriculturalists. For the sake of completeness, it should also be noted that permission can sometimes be obtained for the grazing of horses on a rotational basis. In other words, a landowner can be permitted to rotate the use of his or her fields between commercial agricultural uses (for example cattle grazing) and horse grazing, in accordance with conditions specified by the Land Control Section.
Clearly, these governmental controls represent a significant, and in the eyes of some, excessive, curtailment of the free market in relation to land in Jersey. Whether the 1974 Law, and perhaps more importantly the policies which have been applied in its implementation, strike the right balance is open to debate. But without some kind of statutory control of this nature, it is doubtful whether the Island, outside its urban settlements, would have retained its predominantly agricultural appearance.