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Herefordshire District Council v Bayliss - FTT Property Chamber (Agricultural Land & Drainage)

This is an important decision regarding the Agricultural Holdings Act 1986 and general notices to quit. If a landlord proposes to use land for a non-agricultural purpose which will require planning permission, but which has not yet been obtained, he or she must wait until that permission has been obtained and then proceed under Case B.  It is not possible to proceed earlier under s.27(3)(f).

In this case the local authority landlord served a general notice to quit on the agricultural tenant in respect of land which it proposed to use for non-agricultural purposes.  At the date notice was given it had applied for, but had not yet obtained, planning permission.

In response to the tenant’s counter notice the landlord placed reliance on s.27(3)(f) of the 1986 Act on the basis that its proposed use was non-agricultural which “not falling within Case B” as stated in s.27(3)(f).  This was predicated on the argument that Case B applies when the landlord serve notice to quit is based on proposed non-agricultural use for which (inter alia) planning permission “has been granted”. On a strict literal approach, planning permission had not been granted, therefore Case B did not apply, ergo s.27(3)(f) should be available.

The tenant contended that the phrase “not falling within Case B” in s.27(3)(f) was to be understood as not capable of falling within Case B. If the proposed use would require planning permission the landlord should have to obtain that permission, and then proceed under Case B.  This was supported by the way in which the section was treated in the leading academic textbooks, and by obiter remarks of the Scottish Court of Session in North Berwick Trust v James B Miller & Co [2009] Scot CS CSIH 15.  It was not to the point that by proceeding as it had the landlord had voluntarily chosen what could well be a harder discretionary test.   If the landlord’s proposition was correct then that could result in cases where the FTT would, in effect, to have usurp the function of the planning authority or predict the outcome of the planning process – for example if, at the date of the hearing, planning permission has still not been obtained.  It would also create the risk of the FTT consenting to a notice to quit where planning permission did in the end materialise.

The matter came before the Tribunal by way of preliminary issue on the tenant’s application for a strike out of the landlord’s application for consent.  This is the first decision in the courts of England and Wales on this point, and in a carefully reasoned and detailed judgment Regional Judge Bowles (also familiar to practitioners as Master Bowles, ChD) found in favour of the tenant.

Jamie Sutherland, instructed by Helen Taylor of Browne Jacobson LLP represented the landlord, and Joseph Ollech, instructed by Esther Stirling of Harrison Clark Rickerbys represented the tenant.

The full text of the judgment can be found below.

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