Developing Agricultural Land; Potential Issues
Developing Agricultural Land ; Potential Issues
This article deals with a brief overview of some of the issues which can arise when farmland is no longer used for agricultural purposes, whether as the result of a disposal or a diversification of activity within a continuing farming business.
“Overage”
Agricultural land is often sold to Developers, Promoters and others with short or long term hopes of obtaining planning permission for residential or commercial development of it. There will usually be a huge difference in the value of the land with and without such permission.
In these cases, Sellers should always consider whether the Sale Contract should contain some form of overage (or ‘clawback’) mechanism so that they or their successors in title can share in the increased value of the agricultural land when planning permission is obtained.
Sporting rights
Agricultural land may be subject to “sporting” rights (e.g. shooting and fishing) which have been expressly granted or which have been acquired by long user in favour of third parties. These are classed as “profits à prendre” (i.e. in short rights to take something from another’s land) and it will often be necessary for them to be ‘cleared’ from the land.
Town and Village Greens
In addition to being subject to sporting rights, the land may have been used for sport or other recreational activity by members of the local community. This will often lead to the land being registrable as a Town or Village Green, which for practical purposes will prevent it from being developed.
The activity does not have to be an organised sport. As an example, a decided case confirmed that long use of a field for recreational walking purposes may enable objectors to a proposed housing development to apply to register the field as a village green.
Commons
For agricultural land which has been enclosed at some point in its history it is unusual for it to be subject to rights of common. However, it is always a sensible precaution for a Seller’s Solicitor to carry out a commons search, to establish the position beyond doubt.
By contrast, many farms (including in particular some in Wales and in the north and west of England) have the benefit of rights of common over open areas of common land (typically pasture land) which they have obtained either by means of an express grant or by prescription (i.e. long use). These rights can be very valuable, and the financial viability of many farming businesses would be adversely affected without them.
Where the relevant provisions in the Commons Act 2006 apply, any transfer of land which has the benefit of rights of common “carries” those rights with the land. As a result, rights of common cannot be severed or reserved so as to exist ‘in gross’ (i.e. independently of the land which has the benefit of them) for the benefit of the selling farmer in relation to his remaining land. The loss of those rights may have a significant impact.
Public rights of way and rights of access
Agricultural land is often crossed by public rights of way, which are protected (principally under the Highways Act 1980). These rights of way consist of:
- footpaths
- bridleways (for use by pedestrians, horse riders and cyclists)
- restricted byways (for use by all types of traffic except mechanically propelled vehicles)
- byways open to all traffic
If a proposed development will otherwise impede or obstruct the exercise of any such right of way, a diversion or stopping Order may have to be obtained (in accordance with the relevant statutory procedure) to enable the development to proceed.
In addition, members of the public also enjoy a more general right of access to open countryside, mountains, moors, heathlands, downs, country parks, forests, registered common land, town and village greens and the coast. This right of access is provided by a combination of the Wildlife and Countryside Act 1981, the Countryside and Rights of Way Act 2000, the Natural Environment and Rural Communities Act 2006 and the Marine and Coastal Access Act 2009.
Hedgerows
A hedgerow is ‘protected’ under the 1997 Hedgerows Regulations if it:
- is more than 20 metres long (including if it has gaps of 20 metres or less in its length) or is less than 20 metres long but meets another hedge at each end
- grows in or next to common land, a village green, land used for agriculture, forestry or the breeding or keeping of horses, ponies or donkeys, or other protected land (e.g. sites of special scientific interest or nature reserves)
- is ‘important’ (which requires the hedgerow to be at least 30 years old and to satisfy at least one of the other criteria listed in the Regulations).
Removing a protected hedgerow without consent is a criminal offence. However, removal will be permitted if it is required for carrying out any development for which planning permission has been granted or is deemed to have been granted under the Town and Country Planning legislation.
The 1997 Regulations are not the only source of statutory protection in connection with hedgerows. Many inclosure awards which were made under private Acts of Parliament provide for the protection of ancient hedgerows by requiring the landowner for the time being to maintain them ‘forever’. This obligation remains enforceable by members of the local community in perpetuity notwithstanding the grant of planning permission.
Ecclesiastical rights
Agricultural land can also be subject to ancient ecclesiastical rights, such as “corn rents” or “modus rents”. They can often be academic for practical purposes, because the amounts involved are usually very small and typically have not been paid for many years. Tithe redemption annuity, sometimes referred to in old title documents, used to affect all agricultural land but was abolished by the Finance Act 1977.
Agricultural land may be subject to chancel repair liability, i.e. an obligation to contribute towards the cost of repairs to the chancel of a local parish church. The existence of this liability may not be apparent from an inspection of the Seller’s title and the Seller may not be aware of it. In England, the parochial Church Council, and, in Wales, the Representative Body of the Church in Wales, has the right to collect the money.
The risk of land being subject to chancel repair liability has been reduced since 13th October 2013 under the provisions of the Land Registration Act 2002. However, it has not been abolished entirely.
Chancel repair liability did not cease to exist on 13 October 2013, but if the liability has not been protected by registration of a notice at the Land Registry then a Buyer of land title to which is registered, for value, will take the land free of any potential chancel repair liability. In the case of land title to which is unregistered, the liability continues to apply until first registration occurs (and can be protected by registration of a caution against first registration).
It is possible to search in connection with chancel repair liability but, as there is no definitive register of liability, search results are not always conclusive. It is regarded as good practice to put indemnity insurance in place, either after obtaining a search result, or instead of doing so.
Nuisance
The development of agricultural land for commercial or residential purposes may see a considerable intensification in the use of the land. For those who live near to the land in question, this may result in a significant increase in the levels of noise, dust, light, smells etc. emanating from the land.
This can give rise to either a common law nuisance, or a statutory nuisance under the Environmental Protection Act 1990, Part III. The fact that the development and any subsequent operational activity is carried out in compliance with a planning permission (and, where appropriate, an environmental permit or other form of authorisation or licence) will not of itself provide a defence to a private action in nuisance or enforcement proceedings under the 1990 Act.
Environmental issues
Agricultural land is particularly sensitive to pollution, as it often contains a range of receptors. These include (in the context of land being considered for development):
- soil
- housing
- designated ecological receptors
- underlying aquifers
- surface water features
In addition, the large scale use of fertiliser has led to rural areas being designated as nitrate vulnerable zones.
Common sources of contamination include:
- pesticides and insecticides
- fertilisers
- manure and slurry
- landfilling
- fly-tipping
It will be important to assess the potential for contamination and/or pollution and to take professional advice about appropriate mitigation and remediation action.
(This article is not intended to be comprehensive or to provide specific legal advice. It should not be relied upon in the absence of specific advice given in relation to particular circumstances.)
For further information, please contact: Natalie Linehan, Andrew Williamson or David Thorp
