Accessing agricultural land for surveys and investigations

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We look at a recent High Court case that highlights the difficulties involved in gaining access to agricultural land for the purposes of carrying out surveys and investigations.

Being able to access land earmarked for development in order to carry out surveys and ground investigations is clearly of great importance to developers, particularly if those surveys are conditions of a planning permission.

Obtaining access for these surveys and investigations is straightforward if the developer has obtained vacant possession of the land. However, things get more complicated when the land is still occupied by a tenant, particularly if that tenant is an agricultural tenant.

Agricultural tenancy

If the agricultural tenancy is post 1 September 1995, then it will be a Farm Business Tenancy (FBT), which is relatively straightforward to terminate, as long as the landlord gives sufficient notice. However, if the tenancy is a pre 1 September 1995 tenancy, it will be an old-style tenancy, more properly known as an Agricultural Holdings Act (AHA) 1986 tenancy. These are far more difficult to terminate as the tenant can challenge the termination.

When a developer wishes to terminate an AHA tenancy their best course is to serve a ‘Case B’ notice, specifying ‘non-agricultural use’. The tenant can then challenge the Case B notice by referring it to Arbitration. This process can take months.

In the meantime, the developer may want to access the land in order to carry out surveys and investigations. The tenant may be reluctant to agree to this, as some surveys and investigations can be intrusive and cause damage to land and crops. If that is the case, the developer will have to rely on any rights reserved for these purposes in the tenancy agreement.

The trouble for the developer here is that such ‘reserved rights’ can be widely worded, but the Courts tend to interpret them narrowly. For instance, the Courts have held that a right to carry out surveys did not allow a landlord to dig boreholes.[1]

A landlord faced just this sort of difficulty in the recent High Court case known as the ‘Earl of Plymouth’ case[2]. The landlord obtained planning permission to develop a substantial area of land to the west of Cardiff. Part of the land included a farm tenanted by the defendants, Jenkin and Phillip Rees. The landlord served a Case B notice on the Rees’, who referred the matter to Arbitration. This would take months and, in the meantime, the landlord wished to carry out various surveys and investigations on the land. The Rees’, however, refused.

The question, therefore, arose as to whether the rights reserved to the landlord in the tenancy agreement allowed these surveys to be undertaken.

The landlord relied on two rights. The first (Right 1) was a very general right: “to enter any part of the Farm lands and premises at all reasonable times for all reasonable purposes”. The second (Right 2) was equally wide: “[to] enter upon the said premises with Agents Servants Workmen and others for the purpose of inspecting the same or for making roads sewers or drains or for any other purpose connected with his estate”.

Right 1: “For All Reasonable Purposes”

The High Court decided that the right to enter the land “for all reasonable purposes” did allow for inspection and observation activities, but not anything that caused damage to the land or involved cordoning off parts of the land or a significant interference with the operation of a working farm. Accordingly, it did not allow for:

  1. excavations
  2. drilling boreholes
  3. erection of structures
  4. pegging out of development areas.

It did, however, allow for the installation of ‘discrete’ devices such as remote bat detectors.

Right 2

In terms of Right 2, the Court concluded that this right did not allow the landlord to do anything more than Right 1 did. In addition, the right to make roads sewers or drains does not refer to making the roads etc on the tenanted land, but on the landlord’s other land.


It would be tempting to assume that phrases as wide as “for all reasonable purposes” or “for any other purpose connected with his estate” would allow entry to tenanted land for activities such as surveying and investigations. However, where those activities cause damage to the land, or interfere with the farming, then those activities will not be permitted. The lesson, therefore, is to assume that reserved rights will be interpreted very narrowly, and it should not be assumed that they allow any type of survey or investigation.

[1] Heronslea (Mill Hill) Ltd v Kwik-Fit Properties Ltd [2009] EWHC 295.

[2] The Honourable Ivor Edward Windsor-Clive, Earl of Plymouth and Others v Jenkin Rees and Phillip Rees [2019] EWHC 1008 (Ch).

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