The Best Laid Plans : Farming and Diversification
24 Sep 2008
Bad weather, diminishing subsidies, increasing overheads – more and more farmers facing these additional challenges are looking to diversification as a way of keeping their heads above water.
Ideally, before implementing any diversification project, the farmer will seek advice on what, if any, consents and permissions need to be put in place and ensure that these are obtained and complied with. This might mean making an application for planning permission, but may also involve additional consents and permissions having to be put in place if, for example, the property in question is within a Conservation Area, a National Park, an Area of Outstanding Natural Beauty, the Norfolk or Suffolk Broads, or a Site of Special Scientific Interest, or if it is Listed, affected by any Agri-environmental Schemes or if the provisions of specific pieces of legislation apply to the property, works carried out there, or its proposed use.
The reality is that many farmers in the UK have already diversified into non-agricultural activities that have resulted in new uses being made of agricultural land or buildings, or in building works having being carried out that are in breach of planning control. This exposes them to the risk of enforcement action from the planning authority.
A breach of planning control arises if any building or engineering works or a change of use has taken place that required planning permission, but none was obtained, or if an application was made for planning permission for such works or use, but it was refused. It also arises if any development was permitted but one or more conditions in the planning permission have not been observed.
Being in breach of planning control is not by itself illegal. If, however, formal enforcement action is taken against you by the planning authority in respect of a breach and you fail to remedy the situation, you can end up committing a criminal offence.
Once a breach of planning control has been found, the planning authority may decide to take no action at all or may negotiate with you to try and reach a suitable solution. Alternatively, you may find yourself being asked to make a retrospective application for consent for the relevant works or activity. However, in cases where a planning application had already been made and refused before the breach was committed, or if the retrospective application is refused, or if the planning authority otherwise considers it expedient to do so, formal enforcement action may be taken against you in respect of the breach.
The first stage of the enforcement process is the service of a Planning Contravention Notice (“PCN”) on the occupier of the property. The PCN typically contains a series of questions relating to the property and activities being carried out there which need to be completed and returned to the planning authority within 21 days. Failure to do so, or giving any false or misleading information in the response, constitutes a criminal offence.
Once the PCN has been returned, the planning authority will decide whether further action should be taken. In the case of non-compliance with a condition of a planning permission, this might result in a Breach of Condition Notice being served. It is not possible to appeal against a Breach of Condition Notice and failure to comply with it is a criminal offence which can result in court action being taken against you by the planning authority.
Alternatively, an Enforcement Notice might be served. Enforcement Notices set out what action needs to be taken to put the breach of planning control right. It is possible to appeal an Enforcement Notice, provided that the appeal is made within the date on which the Enforcement Notice is expressed to take effect (typically 28 days). Failure to comply with the Enforcement Notice is a criminal offence if no appeal is made within the time limit, or if an appeal does not succeed. If you do not comply with the Enforcement Notice, the planning authority can do so itself and register a charge against the property in order to recover its costs.
A Stop Notice may also be served at the same time as the Enforcement Notice. This requires the unauthorised activity to cease immediately until either the Enforcement Notice comes into effect or any appeal is heard. Failure to comply with a Stop Notice is also an offence.
In certain circumstances, especially if there is a history of persistent contraventions, the planning authority may decide to apply for a court injunction to stop all work at the property. If an injunction is not complied with this can result in a prison sentence.
It is, however, possible for an existing breach of planning control to become immune from challenge so that no enforcement action can be taken against you. This happens when a Certificate of Lawful Use or Development can be obtained from the planning authority in respect of the unauthorised works or use.
In those circumstances where it is possible to make an application for such a Certificate, you will need to be able to demonstrate that the requisite time limits have passed in respect of the breach. Where the breach consists of unauthorised building works, you must be able to show that they were substantially completed at least four years before the date of the application. If the breach relates to a change of use of a building to that of a single dwelling house, you must prove that the change of use started at least four years before the date of the application. In all other cases (including any other change of use or any breach of a planning condition), evidence needs to be given that the breach first occurred not less than ten years before the date of the application, and that it has been continuous since that date. There is a right to appeal if the application for the Certificate is refused. Once a Certificate is granted, however, it is crucial that it is adhered to strictly as any breach of it will be likely to result in immediate enforcement action being taken by the planning authority.
As always, prevention is the best cure. Taking advice in advance on whether your plans for diversification will put you at risk of being in breach of planning control will reduce the likelihood of you having to face the headache and expense of any enforcement action being taken against you in the future.
- Katherine Haslam is an Associate at Adams & Remers Solicitors. She works in the Commercial Property Department, specialising in Agricultural Property, and can be contacted by email at email@example.com. She is also a member of the firm's Town and Country Planning Group.
This article is not intended to be a full summary of the law and advice should be sought on specific issues.
This article is also published in Farmers Guardian online / magazine.
Other recent articles in Farmers Guardian can be read at these links:-
Working times under the Agricultural Wages Order, 18 September 2008, by Samantha Davis
SAMANTHA Davis, head of employment at Adams & Remers Solicitors takes a look at the latest rates and specified working times under the Agricultural Wages Order.
A Fly-Tipper's Charter, 10 September, 2008, by Andrew Pawlik, Adams & Remers
FLY-TIPPING is very much on the national agenda with Bill Bryson and the Campaign to Protect Rural England’s high profile ‘Stop the Drop’ campaign and the much mooted household dustbin tax catching headlines. Read this Farmers Guardian article at this link