This article relates to the discharge of a Section 106 Agreement in respect of an agricultural worker’s dwelling. Our client was aware that the dwelling he had obtained planning consent for in the 1990s, and had built as his family home, had an occupancy condition. However, he was unclear of the details as he no longer had any of the documentation.
An approach to the local authority established that planning permission was granted for the dwelling, but the occupancy condition was in the form of a Section 106 Agreement, rather than the usual planning condition. Initial thoughts, with details from the applicant, had been to submit a Certificate of Lawfulness in breach of an occupancy condition, on the basis that the occupiers had not been in agricultural employment for over 10 years. This however was not an option with the occupancy condition being solely within the Section 106 Agreement. Consequently, it was decided following a full review of the Section 106 Agreement to make an application to the local authority on the basis that the Section 106 Agreement was obsolete and served no useful purpose.
Background
The dwelling was granted planning permission in 1993 subject to the Section 106 Agreement.
The Section 106 Agreement referred to a plan, showing a total land area of circa 8 acres (3.2 ha) including the site of the dwellinghouse, buildings and land. The Section 106 Agreement detailed three covenants for the owner:-
- The dwelling proposed to be constructed shall be occupied by a person employed in the agriculture enterprise centred on the farm or by a dependent of such a person residing with him or her or a widow or widower of such a person.
- The applicant shall before commencing the development provide the Council with a plan giving a detailed financial plan of how the minimum agricultural usage for the proposed worker is to be achieved within five years of commencing development and such development shall not be started until written approval of the Council has been given to the terms of such a plan.
- Within five years of commencement of implementation of any planning permission granted the owner shall provide evidence to the satisfaction of the Council of significant investment within the agricultural enterprise consistent with the plans outlined within his submitted agricultural appraisal (as above).
It transpired that the agricultural business, based around a pig enterprise, was always considered to be on the margins of being able to meet the required tests by the local authority. The Council granted the dwelling (actually as a re-build of a former dwelling), rather than granting consent for a temporary dwelling and gave the applicant the benefit of the doubt. In doing so, the proposal was bound by the Section 106 Agreement.
The reasons and justification for the Section 106 Agreement to be discharged were presented as follows:-
- Following the consent for the dwelling in October 1993 a pig enterprise commenced at the farm which ceased seven years later in October 2000.
- Covenants 2 & 3 of the Section 106 Agreement were never complied with by the applicant.
- Since October 2000, no livestock were kept on the farm and the limited amount of farmland circa 6 acres (2.4ha) was kept to grass for grazing or mowing by others.
- In respect of Covenant 1 of the Section 106 Agreement, there had been no agricultural enterprise operating from the farm since October 2000.
- Given the limited extent of the land area and the nature of the buildings, the farm could not provide a livelihood for a farm worker (i.e. not capable of meeting the requirements of Covenants 2 & 3).
- After 2000, the applicant and his wife did not work in agriculture.
The local authority initially considered that the Section 106 Agreement could not be discharged and that a marketing campaign would need to be undertaken to establish whether there was anyone in agriculture, in the locality, who would want to buy the property. Further representations were made to the Council, stating that the occupancy requirement related to the holding and the farming activity on the holding, and so there was no requirement for a marketing campaign regarding any local agricultural need. Thankfully by reiterating the points of our initial submission the local authority accepted that given the circumstances of the holding, and the time lapsed, the Section 106 Agreement could be discharged as it no longer served a useful purpose, i.e. it was obsolete.
The applicant was very pleased with the outcome, now having the property unencumbered.
With any case involving an occupancy restriction, whether it be a planning condition or legal agreement (or both in some instances), careful reviewing of the wording is essential. Likewise reviewing the history of the holding and the occupiers of the dwelling, to ultimately establish what planning options are available.