[2025] UKUT 256 (LC)

Mr Schroeder explained that his family had been growing Christmas trees at Kingswood for the last 69 years. Alongside the trees he and his family offered tree lights and decorations for sale and they attracted customers from all over Kent and South London. The customers could also enjoy a hot drink in the café area and toilet facilities were also provided.

The Property is usually open for a period of five weeks in the run up to Christmas. The opening hours are 9.00 to 5.00, seven days a week. Mr Schroeder calculated his opening hours as being a total of 280, out of 8,760 in a year. This amounted to 3.19% of the year. Mr Schroeder confirmed that that new stock of decorations and other Christmas goods was procured in February of each year for the following Christmas season, and was delivered between 11 and 12 weeks before Christmas and that old stock was mothballed for the rest of the year. On our site visit we noticed that the old stock was covered in plastic sheets.

Mr Schroeder said that the site had an agricultural planning permission and no one would pay rent for premises that do not have planning permission for the intended use, and the value was therefore nil. In addition, the buildings were not in a reasonable state of repair and no one would take on the repairs or insure them. The buildings also had no energy performance certificate, electricity safety certificate or fire certificate. To prove the point, he had advertised the premises for use as a Christmas shop with weekly outgoings of £700 for rent and £350 for rates but had received no responses.

He noted that the 1988 Act (as we set out in paragraph 14) defined an agricultural building as being (a) not a dwelling and (b) occupied with agricultural land and is solely used with agricultural operations on that land. Mr Schroeder submitted that those circumstances were there same as existed at the Property; the growing and selling of Christmas trees was the lawful use and the buildings were therefore agricultural. He also stated that the 1988 Act stipulated that in coming to a determination whether a building was used solely in connection with the agricultural land, use of the building for another purpose could be ignored if the time spent on that use did not amount to a substantial part of the time during which the building was used. In Mr Schroeder’s view the use of the building for 3.19% of the year was not substantial. He was unable to reconcile his own understanding of the term ‘de minimis’ and the Court of Appeal’s decision in Hambleton District Council v Buxted Poultry [1992] 2 All ER 70 CA where 6-8% of the time was held not to be de minimis.

Finally, Mr Schroeder said that no tenant would pay rent for the whole year when the shop was only open for five weeks each year.

In her opening remarks Ms McArdle stated that the only question before the Tribunal was whether the Property was exempt by virtue of the agricultural exemption which exists in Schedule 5 of the 1988 Act. She said that for this to be satisfied it was necessary for Mr Schroeder to show that the hereditament in question was either agricultural land or agricultural buildings. A building which is occupied “together with agricultural land and is used solely in connection with agricultural operations on that and other agricultural land” would be exempt. She said the case law including Buxted Poultry established the meaning of the words “used solely”. She said that a hereditament used for four – five weeks for hospitality, was not “used solely in connection with agricultural operations on that or other agricultural land”. Mr Schroeder’s use of the Property amounted to 9.6% of the year, she said, was well above the “de minimis” use which Mr Schroeder relied on. There was no agricultural use within many parts of the Property, which were “mothballed” for large parts of the year. She said that no part of the Property was continuously used for agriculture, although there may have been some intermittent storage of agricultural equipment.

Ms McArdle submitted by reference to Buxted and the other cases on which she relied, that to fall within the de minimis exception the non-agricultural use had to be considerably less than the 6-8% identified by the Appellant in that case. She relied on the case of W & JB Eastwood Ltd v Herrod (VO) [1971] AC 160. In that case Lord Reid (at 247J) considered the intention of the legislation with which he was concerned (the Rating and Valuation (Apportionment) Act 1928). The legislation defined “agricultural buildings” as “buildings (other than dwelling houses) occupied together with agricultural land or being or forming part of a market garden and in either case used solely in connection with agricultural operations thereon”. This was meant to apply to “all types of ordinary farm buildings in use” when the Act was passed. Furthermore, as methods of farming changed he would presume an intention to include new types of such buildings. However, the definition “used…in connection with agricultural operations” suggested that the buildings must be subsidiary or ancillary to the agricultural operations and not only a small part of the enterprise”.

Miss McArdle also explained, in her skeleton argument, that the question of whether or not the Property’s EPC certificate or fire certificate had been obtained are immaterial to the question of whether the agricultural exemption is engaged. Statute requires the Tribunal to assume that all necessary licences and similar would be granted to a hypothetical tenant (see Schofield (VO) v RBNB, [2008] at paragraph 14).