How to recover agricultural land from tenants to create woodland schemes

Woodland is becoming ever more important with more landowners looking to implement woodland schemes. Focusing on the Agricultural Holdings Act 1986, Joseph Mitchell, an associate solicitor in Harrison Drury’s property litigation team, examines how landlords might best recover agricultural land from tenants to implement tree planting and woodland schemes.

Agricultural Tenancies

An agricultural tenant will occupy land either as a farm business tenant or as an Agricultural Holdings Act Tenant. Recovering possession of land is very different depending on the type of tenancy. If the tenancy started before September 1, 1995, the tenancy is likely to be protected under the Agricultural Holding Act 1986 (‘the Act’).  If it started on or after September 1, 1995, the tenancy is likely to be governed by the Agricultural Tenancies Act 1995.

Before serving any notices, it is important to check what type of tenancy your tenant has so the right notice can be served. If you are unsure what sort of tenancy your tenant has, please contact Harrison Drury for further advice.

If the tenancy is a farm business tenancy, a notice of at least 12 months will need to be served to end on the term date if the tenancy is for more than two years. If the tenancy was for two years or less, the tenancy will automatically end at the end of the fixed term.

If the tenancy is an Agricultural Holdings Act Tenancy, a notice will need to be served giving at least 12 months’ notice, determining on the term date.

The Agricultural Holdings Act and issuing a notice under Case B

The first place to start when considering bringing an end to a tenancy is the agreement itself. Often older agreements will have specific clauses that allow the landlord to recover possession to plant trees and perhaps for a wide variety of other circumstances.

If the agreement does have specific clauses, you will need to check whether it allows part or whole of the farm to be recovered. The agreement may also allow the landlord to serve a shorter notice than one would normally use. If this is the case it is important to check whether the clause in the tenancy is valid and allows the tenant to serve a counter-notice.

If the tenancy is too restrictive then a general notice to quit can be served over the whole of the farm or under Section 31 (2) (e) which is the ground for the planting of trees if only part of the holding is required.

There has been some confusion about whether an incontestable notice under Case B can be used for tree planting. Case B enables a landlord to give notice to quit a tenancy in circumstances where the land is required for use other than agriculture. This typically covers a situation in which planning permission has been obtained for other non-agricultural use that is specifically referred to in the legislation.

As it is something that planning permission is not normally required for, Case B will not be available. Section 27 (3) (f) provides for times when a landlord wishes to recover possession for a non-agricultural use and planning permission is not required.

Tenant’s Counter Notice

Where a notice is served under the tenancy or under Section 27 or Section 31, the tenant is permitted to serve a counter-notice. The tenant must serve the counter-notice within one month of the date of service. If the tenant serves the counter-notice, then the notice will be of no effect unless the First Tier Tribunal (Agricultural Land and Drainage) consents to its operation.

In order to obtain the tribunal’s consent it will be necessary to demonstrate the following:

1. That the landlord meets one of more of the specified criteria, which are:

• that the carrying out of the purpose for which the landlord proposes to terminate the tenancy is desirable in the interests of good husbandry as respects the land to which the notice relates, treated as a separate unit.
• that the carrying out of the purpose is desirable in the interests of sound management of the estate of which the land to which the notice relates forms, part or which the land constitutes.
• that the carrying out of the purpose is desirable for the purposes of agricultural research, education, experiment or demonstration, or for the purposes of the enactments relating to smallholdings.
• that the carrying out of the purpose is desirable for the purposes of the enactments relating to allotments.
• that greater hardship would be caused by withholding than by giving consent to the operation of the notice.
• that the landlord proposes to terminate the tenancy for the purpose of the land being used for a use other than for agriculture, not falling within Case B.

2. Even if the above criteria are met, the tribunal will withhold consent “if in all the circumstances it appears to them that a fair and reasonable landlord would not insist on possession.”

It is important to ensure that the planned scheme is well defined and that the reasons for it are known prior to serving the notice to quit in the first place.

For advice on gaining possession for tree planting schemes or if you have received a notice to quit a land tenancy based on tree planting, or regarding any other issues relating to your agricultural tenant or landlord position, please contact Harrison Drury’s property litigation team on 01772 258321.