Ag Tags - A Reminder
How do you remove an ag tag?
“Ag tags”, also known as agricultural occupancy conditions and agricultural ties, are conditions imposed within planning permissions which prevent a dwelling being occupied by a person unless they are employed, or were last employed, in agriculture.
Agriculture is defined in planning legislation as horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock, the use of land as grazing land, meadow land, osier land (growing of willow), market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land.
Ag tags are not popular as they limit who can buy a dwelling in the event of a sale and as a consequence this may reduce the market value of the property and/or affect the availability of a mortgage or the amount a lender is willing to lend.
Ag tags are also notoriously difficult to remove as they are often imposed in planning permissions for the construction of a farmhouse in a green belt where planning permission would have been refused but for the condition. The three potential ways in which an ag tag can be removed are as follows:
- Apply for a Certificate of Lawful Development
Where an agricultural occupancy condition has been breached for over ten years, i.e. where the owner (and/or any occupier(s)) of the dwelling has not been employed (or last employed) solely or mainly in agriculture for over ten years, the owner can apply to their Local Planning Authority for a Certificate of Lawful Development. A Certificate of Lawfulness of Existing Use or Development is a certificate issued by the Local Planning Authority which provides that the use of the property in breach of the ag tag is lawful, and once issued, enforcement action cannot be taken by the Local Planning Authority in relation to the breach.
In order to make a successful application the owner must evidence they have continually occupied the dwelling in breach the ag tag (i.e. without being employed in agriculture) for over ten years and that the breach is continuing at the time the application is made, on the balance of probabilities. Unlike a planning application, the Local Planning Authority must only consider the facts of the case when deciding whether to grant the Certificate and cannot consider the planning merits of the case or any planning considerations.
Depending on the wording of the ag tag, an agricultural tenancy of land at the property will not preclude a Certificate being granted by the Local Planning Authority, provided that it can be proven that the rental income received is nominal and that the alternative non-agricultural employment income is the main source of income.
Applying for a Certificate of Lawful Development is the most straightforward way to remove an ag tag, as if it can be proven that the ag tag has been breached for over ten years on the balance of probabilities, the Local Planning Authority must grant the Certificate.
- Apply for the Restriction to be Removed
The second option is to make an application to the Local Planning Authority or the Upper Tribunal (Lands Chamber) to lift the ag tag, if it can be demonstrated that the dwelling is no longer necessary for agricultural purposes within the community.
In order to establish that there is no demand for the use of the dwelling for agricultural purposes, the owner must carry out an involved market testing exercise. This exercise involves putting the dwelling on the market at a price, being the value of the dwelling with the ag tag, for both sale and to rent and then providing evidence that no genuine offers were received. This exercise must be carried out for a lengthy period - usually 12 months or more. Evidence will also need to be supplied showing how the valuation was calculated by the agents together with evidence of the marketing process. A record of any interest received will also need to be supplied.
This method of removing an ag tag is the most time-consuming and costly with no guarantee that the ag tag will be removed once the marketing exercise has been completed (especially if viable offers are actually received). There are a number of cases where the Local Planning Authority or Tribunal have refused to lift an ag tag as they have held that the applicant has been unable to satisfy that there is no demand for the ag tag, or they have held that the market testing exercise was not carried out correctly.
- Argue the Planning Permission was Not Implemented
The final route to remove an ag tag is to argue that the planning permission containing the condition was never implemented and consequently the ag tag does not apply to the dwelling.
This argument can be made where a planning permission contains a pre-commencement condition which was not discharged. The general rule is that if a pre-commencement condition has not been discharged, any subsequent works carried out will not implement the permission. The planning permission would then lapse on the date specified in the permission and consequently the planning permission, and the ag tag contained therein, would not bind the property. This would also mean however that any works carried out, or any change of use, granted by the planning permission would be carried out without planning permission and in breach of planning control.
This route is therefore the most dangerous as there is a risk that the Local Planning Authority could bring enforcement action for not only a breach of the pre-commencement condition but for the carrying out of the works or the change of use (where relevant) without planning permission. It would therefore need to be established that any change of use had taken place, or any works had been completed, over ten years ago so the owner had immunity from enforcement action.
The ethics of this method have also been called into question, as it has been argued that it is unfair for an owner to breach a planning permission and then benefit from the removal of an ag tag following the breach. The Local Planning Authority is therefore likely to use their best endeavours to prevent an application to remove an ag tag on this basis from succeeding.
Rollits have recently submitted a number of applications for Certificates of Lawful Development which have successfully been granted by the Local Planning Authority. This accordingly still represents the most common method of overcoming an Ag Tag that we certainly deal with. The benefits of the Ag Tags removal are clear with a likely increase in land value being a prime example.
Posted on: 07/10/2020
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.
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