Agricultural holdings notices on a planning application

If any part of the land in your red line is an agricultural holding, you have to serve an agricultural holding notice on every agricultural tenant and certify that you have done so. The requirement comes from section 65 of the Town and Country Planning Act 1990 and articles 13 and 14 of the Town and Country Planning (Development Management Procedure) (England) Order 2015, and the council cannot entertain the application until the certificate is provided. It is the single most common reason farm applications fail validation.

The notice is a procedural step rather than a consent. It gives the tenant no veto over the application, and it gives you no right to carry out the development on land someone else occupies. Those are separate questions under the tenancy.

When an agricultural holdings notice is required

The certificate on the application form has two parts, and both have to be completed on every application.

The ownership part asks you to certify one of four positions. Certificate A where you are the sole owner of all the land in the application and none of it is an agricultural holding. Certificate B where you have given notice to every other owner and every agricultural tenant whose name and address you know. Certificate C where some are known and notice has been given, and the rest are unknown so notice has been published in a local newspaper. Certificate D where none of them is known and notice has been published.

The agricultural holdings part asks separately whether any of the land is, or forms part of, an agricultural holding. If the answer is yes, you must certify that notice has been given to every agricultural tenant, or that there is no such tenant.

"Owner" for these purposes means the freeholder or a lessee with at least seven years of the term unexpired. So a farm business tenant on a five-year term is not an owner, and the notice obligation to that tenant comes through the agricultural holdings route rather than the ownership route.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

Who counts as an agricultural tenant

The Order defines an agricultural tenant as a tenant of an agricultural holding, any part of which is in the application land, and points to the definition of agricultural holding in the Agricultural Holdings Act 1986.

That pointer matters, because since 1 September 1995 most new farm lettings have been farm business tenancies under the Agricultural Tenancies Act 1995 rather than tenancies under the 1986 Act. On a strict reading, a farm business tenancy may not be an agricultural holding for the purposes of the notice at all.

The practical answer is to serve notice in either case. Serving a notice on someone who turns out not to be entitled to it costs a stamp and creates no liability. Certifying that there is no agricultural tenant when a tribunal later finds there was one is a much worse position, because it is an offence to issue a certificate that is false or misleading in a material particular knowingly or recklessly, and a challenge to the permission becomes available.

Three categories to check on any farm holding: tenancies under the 1986 Act, which often date back decades and may have succession rights; farm business tenancies under the 1995 Act; and any arrangement that has drifted into a tenancy without a written document. The third is the one that catches families.

Completing the certificate correctly

Work through it in this order.

1. Fix the red line first. The application site should include only the land needed for the development and for its access, drainage and mitigation. Every extra field drawn in brings its occupier into the notice requirement.
2. Establish the legal interests in each parcel inside the red line, from the title, the tenancy agreements and the farm records. Where the holding is in a partnership or a trust, identify who the tenant actually is.
3. Serve the notices, then sign the certificate. The certificate confirms that notice was given, so it cannot be signed first.
4. State the date of service on the certificate, and keep the notices consistent with it.

The notice has to be given within 21 days before the application is submitted. Serve it earlier than that and the certificate is wrong, so on a slow-moving application the notices sometimes have to be served again shortly before submission.

Where the applicant is a company, a partnership or an estate, make sure the person signing has authority to do so. A certificate signed by an agent is normal, and the agent signs in the capacity stated on the form.

Serving the notice and keeping proof

The notice takes the form set out in the schedules to the Order, and it names the applicant, describes the proposed development, identifies the land and tells the recipient how to make representations to the council and by when.

Serve it by delivering it to the recipient, by leaving it at the recipient's usual or last known address, or by post to that address. In practice, send it by a method that generates evidence and keep the following in the project file:

• A dated copy of each notice as served.
• A schedule of who it was served on, at which address, on which date and by which method.
• Proof of posting or delivery.
• A file note of any telephone or email discussion, which is not service but is useful if service is later disputed.

Where a recipient cannot be traced, the newspaper route under Certificate C or D requires publication in a newspaper circulating in the locality, and the certificate has to give the name of the newspaper and the date of publication. Keep the page. The related rules on site notices and press advertisement for larger schemes are set out under publicity for major development, and they run separately from the notice to tenants.

Grazing licences and whether they count

A bare grazing licence, where the grazier turns stock out on the land under a personal permission with no exclusive possession, is not a tenancy and no agricultural holding notice is needed. Plenty of arrangements described as licences are tenancies in substance.

The test is exclusive possession for a term at a rent, judged on what the parties actually do rather than what the document is called. Signs that an arrangement has become a tenancy include the grazier controlling access, maintaining the fences and gates, holding a key, having exclusive use for a defined period, and paying a rent rather than a fee per head.

The 1986 Act also excludes certain short grazing and mowing agreements, which is a further layer of complexity on old arrangements. Where the position is unclear, serve the notice and complete Certificate B, and say in the covering letter why you did so. Officers accept that readily.

What a tenant can do in response

The tenant can write to the council and make representations on the planning merits, exactly as any neighbour can. The tenant cannot block the application, object on the ground of the tenancy, or require the council to refuse it. Occupation of land is not a material planning consideration.

The tenancy is a separate matter, and it is the one that decides whether the development can happen. Where the landlord needs vacant possession of land let under a 1986 Act tenancy for a non-agricultural use, the notice to quit route in Schedule 3 to that Act requires planning permission to have been granted for that use before the ground can be relied on. So the planning permission comes first and the possession follows, which is the reverse of what most landowners assume.

Compensation for disturbance and for tenant's improvements can follow a resumption of possession, and the figures are not trivial on an established holding. Get that advice before you apply rather than after, because it may change the scheme.

The validation problems this causes on farm applications

Five failures account for most of the returned applications.

Certificate A signed where part of the land is tenanted. Both parts of the certificate left partly blank. Notice served after the application went in, so the 21-day window reads the wrong way round. A red line drawn generously around the whole farmyard, bringing in parcels with different occupiers. And a diversification scheme where the applicant is a family member rather than the registered landowner.

Fix the first four by working through the sequence above. Fix the fifth by identifying the applicant correctly, which may mean a joint application.

For a farm diversification or new agricultural building application, the rest of the pack usually runs to a planning statement dealing with the countryside policy tests, drawings, a highways note, and, where best and most versatile land is in issue, an agricultural land classification survey. Keep the notices and certificates with the decision notice afterwards, as part of the compliance file you build after permission is granted.

Enter your postcode on PlanScope to see which reports your site is likely to need.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.