Enforcement order on basis of outside planning - Public forum - Planning Advisory Service (PAS)

I'm not a planning officer but have worked with many brilliant planners when I worked as a landscape architect and in local govt & we now have our own smallholding with various planning concerns. This is my opinion

 In your shoes I would call their bluff. First I would ask them to provide a copy of the agricultural restriction / tie that they issued as part of the planning permission. This would be a condition that is issued when planning approval is given. If this does not exist then neither does the tie. The dwelling might have been a seasonal workers dwelling which doesn't have the same requirements - but if it has been occupied for many many years year consistently then this will have established occupancy. If they decide to issue an enforcement notice then you have 2 avenues to argue on. The first would be in relation to the time the building has been occupied without any  enforcement (Martin Goodall's planning law blog is a useful resource here) The second would be regarding christmas trees being horticultural use (which they are)

I think the main thing you would be citing here is that horticulture is correctly classed as agriculture in the 1990 Act 

section 336(i) of the 1990 Act which states:

“agriculture” includes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes, and “agricultural” shall be construed accordingly;

Hi - there are a number of different issues to consider here but I would not sit back and wait for the Council to take action by trying to call their bluff.  That could prove extremely stressful and costly!  Also, even if teh Council decide not to take enforcement action it still won't clarify the legal status of teh house itself or future occupancy rights should you want to sell it later.

First, you should get the full planning history of the site - including a copy of the occupancy condition attached to the outline planning permission (which you preseumably saw before you purchased?).  Normally, these conditions also allow those employed in "forestry" to occupy as well as those employed in any activity falling within the definition of "agriculture" as Linda has pointed out.  However, it's not normally enough to be involved in agriculture on a "token" basis.  Occasionally, different wordings of the occupancy condition were used in the1970's/80's by different Councils and you might find that there is some flexibility provided by the specific wording of the condition (for example some conditions require occupiers to be "wholly or solely employed" in agriculture or forestry whereas others only require occupants to me "mainly" employed in that way.

Next, find out whether there was ever a subsequent "reserved matters" application to the outline permission approved OR a separate detailed planning application which you don't yet know about.  It has been known for a later, detailed planning permission to be approved without an occupancy condition and for a Council to then try to enforce the occupancy condition attached to the initial outline planning permission.

If there was only ever an outline planning permission approved at the site and the house was built without reserved matters approval or a later detailed planning permission then there is a strong case to say that the house as a whole is unauthorised development and the occupancy condition cannot be enforced.  If that is the case then you should try to get the situation resolved through the submission of an application for a Certificate of Lawfulness to prove conclusively that it is now too late for the Council to take any action against either the house itself or the way it is occupied.

A Certificate of Lawfulness application will need to be based on the detailed facts of your situation and is too involved to explain here - but if successful it should draw a line under this matter for you.

I hope this helps - good luck!

Andy