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A recent case heard in the Upper Tribunal sheds some light, or
at least serves as a reminder of the hurdles to be overcome when
seeking the discharge of an agricultural occupancy restriction.
In the Matter of an application by (1)Peter
Rasbridge (2) Eleanor Rasbridge sub nom Re 2 Cefn Betingau Farm
Rhydypandy Road Morriston Swansea SA6 6NX (2012)was
an application to lift a restriction imposed in a section 52
Agreement entered into in 1986.
The facts - The wording of the restriction was
"that the occupation of the development shall be limited to
persons solely or mainly employed or last employed in agriculture
as defined in section 290 Town & Country Planning Act 1971
or a dependent of such a person residing with him or a widow or
widower of such a person"
Although in this case the wording was contained in an agreement,
it is almost identical to wording recommended in Circular 11/95 and
commonly found in planning conditions imposed on permissions.
An application to remove the restriction had been refused by the
Council and therefore because it was contained in an agreement, an
application was made to the Tribunal under section 84 Law of
Property Act 1925 to discharge the restrictive covenant. It was
argued that this restriction was now obsolete, the grounds for the
application being that since the date of the Section 52
Agreement:
Permission had been granted and the house had been extended to
such an extent that it was no longer suitable for agricultural
workers accommodation
A number of agricultural buildings in the complex had been
converted to residential use such that there was no longer any need
for this dwelling to provide accommodation for an agricultural
worker.
The planning policy applicable to such an
application required not only that the applicant should demonstrate
a lack of need for such accommodation but that "evidence will
be required of the property having been offered for sale and to
rent with the occupancy condition at a realistic affordable price
to the agricultural community and associated agricultural services
over an acceptable period of appropriately targeted
marketing".
In this case the property was advertised with a 28% discount, in
the press 13 times and on 4 different websites. Although the price
was further reduced, ultimately to a 39% discount, there was still
no interest.
The Tribunal's conclusions. The
Tribunal concluded that although the extension of the bungalow may
have rendered it unaffordable to low grade agricultural workers the
restriction did not limit occupation to specific categories or
grades of worker and the property would remain suitable for farm
manager or farm owners.
The Tribunal recognised the "pragmatic constraints" of
a marketing exercise and warned against too theoretical or pedantic
an approach to the marketing exercise. It accepted that it was
reasonable not to keep records of all enquiries, only of those
people requesting a viewing.
It also accepted that there was no obligation on the seller to
offer any additional land in his ownership in order to make the
bungalow more attractive.
However it was critical of the marketing exercise in that;
1. the applicant had failed to offer the property for rent;
2. the evidence lacked an objective analysis of the comparables
used to determine the unfettered value;
3. the bungalow had not been marketed in the specialist farming
press; and
4. adjustments to reflect the general market movements were not
distinguished from the discount allowed for the effect of the
restriction
For these reasons it determined that the market testing exercise
was not sufficiently rigorous to establish that there was no demand
subject to the restriction, even at a substantial discount to its
unfettered value, or at all.
Removal of Conditions - Guidance to local
authorities when faced with S73 requests to remove agricultural
conditions on planning permissions is contained in Circular 11/95
which states that "it will not be appropriate to remove such a
condition unless it can be shown that the existing need for
dwellings for agricultural workers in the locality no longer
warrants the reserving of a house for that purpose".
Local Authorities are expected to set out their policy approach
to the retention or removal of such conditions. Prospective
applicants should therefore always check the Local Plan
policies.
Although this case involved the discharge of a restriction in an
agreement and hence an application to the Tribunal as opposed to a
Section73 application/appeal to the Secretary of State for
discharge of a condition, we consider that the case sets out some
useful guidance as to the nature of the marketing exercise that
will be necessary to support a successful application to lift such
restrictions in either circumstance.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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