Agriculture update

Many farmers and landowners have been approached by developers looking to meet the increasing housing need. They’ve been asked for the grant of an option
to buy land if planning permission is obtained
for development.

Residents’ ability to apply for land to be designated as a ‘town and village green’ (TVG), thus frustrating development even if planning permission has been granted, has been a point of friction between residents, landowners and developers.

Under the Commons Act 2006, the application process states that local residents can apply for
land to be registered as a TVG where it has been used “as of right” for lawful sports and pastimes for 20 years or more.

The requirement for using “as of right” means that such use was ‘nec vi, nec clam, nec precario’ (without force, secrecy or permission). Most commonly, this will be established by dog walkers, joggers, children playing, those playing sports and not forgetting the blackberry pickers, who will use the land regularly, openly and over a long time frame. Landowners may seek to prevent such use by erecting fences or putting up signs prohibiting use.

Registering land as a TVG can have significant implications, not only restricting the landowner’s ability to use or develop it but also perhaps making it less attractive to prospective purchasers. Registration means it would be a criminal offence
to erect buildings on the land therefore prevents
any development.

To many, ‘development’ means residential but commercial and agricultural development including smaller agricultural buildings for which planning consent is not required would be prevented as well. This could restrict a farming business expansion
and its operations. Following a TVG registration, it would also be a criminal offence to enclose the
land by erecting fences on or around it making livestock farming impossible and other farming types difficult.

Early legislation was introduced to strike a balance between the need to preserve and improve TVGs against the benefit of reasonable and sustainable development. New legislation will, however, in certain circumstances restrict the right to apply for TVG registration, which would have been permitted under the 2006 Act.

Growth and infrastructure

The Growth and Infrastructure Act 2013 brought in restrictions on the ability to apply after there’s been a “trigger event”. However, the right is not necessarily completely lost and may just be suspended.

The Acts sets out the following ‘triggers’ and relevant time frames:

1. Publishing an application for full or outline planning permission

This may be by the local planning authority but also for notices that are displayed on the site, given to adjoining landowners or placed in newspapers. The planning application may have been submitted prior to the 2013 Act coming into force in April, but the Act will still apply and the suspension will run from whenever the publication occurs.

No application for TVG registration can be made:

• while the planning application remains undetermined; or
• if the application is withdrawn or refused, until all legal challenges have been exhausted; or
• once planning consent is granted, while it is still capable of being implemented.

2. Identifying the land in question in a local plan or development plan

This applies whether the plan has been published in draft for consultation, formally adopted or made.

No application for TVG registration can be made until the plan is withdrawn or superseded.

The right to apply for TVG registration will be automatically suspended from the occurrence of a trigger event, regardless of whether there would otherwise have been a valid TVG application.

If a trigger event ends and no longer applies, the right to apply for TVG registration is resurrected. Hence the right to apply for a TVG is not extinguished by the occurrence of a trigger event, but instead suspended for a period.

Perhaps it could be said that the playing field is somewhat levelled so that tactically neither party can make a spurious application with the aim of defeating the other – whether it’s residents applying for a TVG to prevent development, or a landowner applying for planning to circumvent a TVG application.

Second, the 2013 Act inserted into the 2006 Act a new procedure by which a landowner can lodge a statement protecting their land against a TVG registration.

The statement and a plan clearly defining the land can be deposited with the local authority, which would then serve to prevent any use of the land by local residents continuing to be “as of right”. As the residents must be able to show land use over a 20-year period for a TVG application, this statement would effectively ‘stop the clock’, with the hope of preventing that requisite 20 years being reached.

The statement may provide that the land in question is not a TVG, or alternatively that only an identified part of it is a TVG. The landowner can, in effect, take preventative action by ensuring that it deposits a statement and plan. This is a similar process to depositing a statement and plan under s31(6) Highways Act 1980 to prevent a new public right of way being established “as of right” over a 20-year period.

In addition to the changes in legislation, the law applying to TVG registration has been changed by cases in which the courts have considered the “as of right” requirement and what TVG means.

 

---

APR: rules of separation

Qualification for agricultural property relief (APR) for inheritance tax (IHT) purposes, particularly on farmhouses, continues to be a hot topic, with HMRC seemingly taking a tough stance in recent years. ?   In 2013, HMRC appealed to the Upper Tribunal against a First-tier Tribunal decision in Joseph Nicholas Hanson (as a trustee of William Hanson 1957 Settlement) v HMRC [2012].

The general rule is that the farmhouse has to be of a ‘character appropriate’ to the farming activities carried out there by the owner. This has led to many elderly farmers working long past retirement age and sometimes into ill health. They fear incurring heavy IHT liabilities if they stop and there not being a working farmhouse at the time of their death.

When Joseph Hanson died, his son, Nick, had lived in the farmhouse for about 24 years. Nick concurrently ran the farm and owned the majority of the land. The First-tier Tribunal had to determine whether the farmhouse was of a ‘character appropriate’. It decided that as Nick occupied the farmhouse, the extent of his farming activities could be taken into account, which meant that the farmhouse would be of a character appropriate to the entire farming operation. It held that the farmhouse and the farmland must be in the same occupation, but need not necessarily be in the same ownership. This decision was contrary to HMRC’s guidance and to previous case law. It was therefore unsurprising that the agency appealed.

The Upper Tribunal upheld this decision in favour of the taxpayer, which is good news for farmers and their families - although separating ownership of the farmland and the farmhouse can be complex.

---

 

As of right

In Taylor v Betterment Properties (Weymouth) Ltd [2012] demonstrated that, even once registered, the courts could reconsider the matter and cancel the TVG registration. In this case, the Court of Appeal upheld a decision to cancel a TVG registration nine years after the original registration was completed. It clarifies what steps landowners should take to use their land contentiously and therefore not “as
of right”.

In reaching its decision, the Court of Appeal took into account that:

The landowner had done enough to bring into doubt the land’s use by the local inhabitants “as of right” for the requisite 20 years. Signs had been removed or vandalised by some of the users so had not been seen by all. However, the landowner had nevertheless sufficiently objected to land’s use.

It was just to rectify the register, notwithstanding the delay and the fact that the applicant had acquired the land for a lower value in the hope that the rectification would be successful.

In light of this decision, landowners should challenge a TVG registration promptly.

Challenging the meaning

A more unusual application considered by the courts concerned a TVG application for a tidal beach. The matter of whether this was capable of being registered as a TVG was held by the court.

In R (Newhaven Port and Properties Ltd) v East Sussex County Council [2013], it was the council that made the TVG application. The port, however, successfully argued that this would conflict with its statutory powers and duties in relation to the beach, and the registration was quashed.

The case nonetheless demonstrates that a TVG is not restricted to the traditional concept of a grassy open space or one that is in the town or village itself. It is therefore not only the application procedure that is being revised, but the idea of a TVG itself is being redefined.

Interestingly, that case also challenged whether the 2006 Act infringed human rights as it interfered with the landowner’s property rights. The court held it did not.

It is important that the system for registering a TVG is available for right and proper claims while it is not misused to prevent development or restrict the property rights of a landowner. The 2013 Act and approach by the courts supports this balance. SJ

Louise Igoe is a partner in the private client team at Lodders