Agricultural Holdings Act: notice to quit where non-agricultural planning permission is needed should use Case B

The First-Tier (Property Chamber) has considered the issue of whether section 27(3)(f) of the Agricultural Holdings Act 1986 ('AHA') was available when terminating a tenancy for non-agricultural use that required planning permission, in a case where planning permission had not yet been granted.  

The facts of Herefordshire Council v Bayliss are as follows:

  • The Landlord served notice to quit on the Tenant because it planned to use the land, together with adjoining land to build 45 residential dwellings.  
  • Planning permission had not been granted at the time the notice to quit was served.
  • The notice to quit was not served under Schedule 3 Case B of the AHA because planning permission had not been granted.
  • Instead the Landlord served a notice to quit relying on section 27(3)(f) of the AHA that relates to intended non-agricultural use not falling within Case B.
  • The Tenant served a counter notice under section 26 of the AHA.  
  • The Landlord submitted that Case B only applied when planning permission had been granted for non-agricultural use.  As no planning permission had been granted, section 27(3)(f) should apply and the Tribunal could consent to the operation of the notice to quit.
  • The Tenant submitted that the phrase 'not falling within Case B' in section 27(3)(f) should be understood to mean not capable of falling within Case B.  

It was decided by Judge Bowles that section 27(3)(f) was not available in a case where, in due course, planning permission would be required.  It is only available in the limited class of cases, such as forestry, where the intended use, when implemented, would not require planning permission and would not otherwise fall within any of the limbs of Schedule 3 Case B of the AHA. 

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

The result and effect of the foregoing is that, in a case such as the present, where the contemplated user requires planning consent, and even if it be the case that, at the date of any Tribunal hearing, planning permission has not been granted, section 27(3)(f) will remain unavailable as a ground for consent for the operation of a notice to quit.

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