briefing autumn 2012 clarke willmott agricultural …...briefing autumn 2012 clarke willmott...

Briefing Autumn 2012Clarke WillmottAgricultural Law

clarkewillmott.com

Field TalkWelcometo the Autumn edition of our Agricultural Law Briefing.

We may still be reliving the best of the UK’s summer of Olympic triumph and we may also have just seen the first green shoots of recovery across the wider

economy, but UK farmers and landowners can be forgiven for looking less than content this Autumn. What other industry faces uncertainty on so many fronts simultaneously?

To consider just a few: we have financial uncertainty with CAP Reform still up in the air, dairy farmers wrestling with below production cost milk prices and pig producers facing ruin alongside new sow stall rules; a badger cull so near, yet so far; extensive planning reforms proposed, but for how long?; and then there’s always the weather, with the odd spot of flooding….

One might hope that the Olympic team spirit from the Summer might galvanise a UK all-pull-together approach, but with the next round of cuts about to bite and supermarkets continuing to wield such power, (just consider the latest decision by Sainsbury’s to abandon the red tractor logo) I remain rather sceptical of that possibility.

In this edition of Fieldtalk we consider the issues of flooding damage, evicting squatters, developing equine facilities and the latest planning proposals. As ever please contact us for a no-obligation discussion if you need any further advice.

Tim Russ

B i r m i n g h a m • B r i s t o l • L o n d o n • M a n c h e s t e r • S o u t h a m p t o n • T a u n t o n

In a groundbreaking new decision of the Supreme Court the judges decided that equal pay claimants can now bring their claims through the courts, which gives them a far longer six year period for claims.Until the decision in the case of Birmingham City Council v Abdulla equal pay claimants were forced to bring their claims in the Employment Tribunal, which meant that they were subject to a six month time limit for starting claims. Following this case potential claimants (who are usually women) are now free to bring claims for a period of up to six years, if they can show that they have carried out similar work to male colleagues, but have received lower pay.

In addition to their new right to issue new claims in the courts, claimants will be entitled to backdate claims for up to six years. This means that there are potentially thousands of employees who may now seek compensation and significant amounts of enhanced back pay.

How does this affect farmers?One major question to ask as a result of this case is what impact will this have on the agricultural sector and on agribusiness? Already regulated by the Agricultural Wages Order, under which employees are entitled to claim back pay for up to six years, if they consider that they have been underpaid or paid on the wrong or inappropriate scale, now there is potential for (probably female) employees to claim that they have also been subjected to unequal pay. Female (or male) employees could now potentially bring a claim that they have been paid

a lesser amount by reason of their sex.

This type of equal pay claim is now incorporated in the relatively new legislation, the Equality Act 2011, which came into force in October 2011. We have already seen a great increase in claims being brought under this legislation as more and more individuals seek to compare themselves to (usually male) work colleagues, who have carried out similar work, but are reaping greater rewards.

The difficulty for employers is that if an employee can show on the face of it that they appear to be doing similar work, then the onus will be on the employer to show there was a genuine reason for paying a lesser amount to the (usually female) complainant. The reasons an employer can submit are very limited.

Our advice to all employers at this time and in particular in the agricultural sector is to review and consider how and what your workforce is paid, especially if both women and men are

employed by the business in similar roles.

For further information please contact:

Kate Gardner Partner

0845 209 1420

[email protected]

Equal pay claims: Are the floodgates opening?

Contents• Flooding

• Developing Equine Facilities

• Squatters

• Farm Diversifiction

• Planning

• Farm Purchases

Clarke Willmott agriculture team awarded highest ranking“This group is unquestionably a regional powerhouse…the team has a good style that is both

supportive and commercial”

Comments from Chambers & Partners, A Client’s Guide to the UK Legal Profession 2012. Clarke Willmott has again been awarded Band 1 status for Agriculture and Rural Affairs in the Somerset and Southampton areas. www.chamberandpartners.com

Flooding: Is there any redress for the farmer?After another summer of extensive flooding, farmers are asking whether it really is acceptable for the Environment Agency to do little or nothing to help them.

Many farmers are used to farming with part of their land covered by water for short periods of the winter. This generally causes few problems, as grass or other crops are not actively growing at that point and the flood does little or no harm. In fact, farmers have often co-operated with the local drainage board and the Environment Agency to allow this situation to happen. In England (unlike countries such as the Netherlands) these arrangements have not been formalised into “water farming”, where the farmers get paid money to have their land flooded.

Recent summer floodingOver recent summers the UK has suffered exceptional rainfall and flooding during the summer. The Environment Agency has sometimes had to decide whether to flood farmland or a large neighbouring town and it has nearly always decided in favour of flooding the farmland. Unlike flooding in the winter, farmland under water for potentially long periods of the summer can be devastating - grass and crops which are actively growing are killed off leaving a stinking mass of vegetation when the water recedes. Farmers are forced to buy in fodder and re-seed the land at very substantial cost.

What remedies exist?Farmers often ask whether there is any potential legal remedy. Ordinarily, if damage is caused to land by another party, the land owner would expect to be able to sue that party through nuisance, negligence or the other civil wrongs which lawyers use in these circumstances.

This does not apply to the Environment Agency, which is expressly relieved from liability by its governing legislation. So can administrative law help a farmer in this situation?

Case law has been developing recently, assisted by the Human Rights Act 1999, so that when the Environment Agency exercises its discretion and decides to flood a farmer’s land for an extended period, that decision can be challenged.

It is also possible to pursue a claim for compensation on the basis that the flooding of the land for a considerable period amounts to an appropriation of that land under the Human Rights Act and not simply a control of the asset, which would otherwise be exempt from a compensation claim.

So despite what farmers may be told by the Environment Agency, there may in fact be steps they can take to obtain redress and force the Environment Agency to consider providing more protection for their land in the future.


Tim Russ Partner 0845 209 1155 [email protected]

clarkewillmott.com02 Field Talk Agricultural Law Briefing Autumn 2012

B i r m i n g h a m • B r i s t o l • L o n d o n • M a n c h e s t e r • S o u t h a m p t o n • T a u n t o n F o l l o w o u r b l o g a t w w w . a g r i b l o g . c o . u k

Since Saturday 1 September 2012 the act of squatting in residential premises has become criminalized and subject to a custodial sentence of up to 6 months together with a fine not exceeding £5,000. The new law

The offence is governed by Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which provides that:

• the premises must be a residential building (i.e. not a barn or tractor shed etc.); and

• the occupier must have entered as a trespasser (thereby excluding tenants or licensees holding over).

The definition of residential building not only includes structures that have been adapted for use as a living space, eg barn conversions, but also, temporary or moveable structures, eg park homes or caravans.

A uniformed police officer who suspects that a person is committing the offence of squatting in residential premises now has the power to enter and search the premises and arrest any offenders.

Squatting Shifts Position

Farm Cottages

Although squatting is most commonly found in urban areas, it could be a problem if farm cottages are left unoccupied. It should be noted, however, that the new offence will not be of any use in evicting tenants, who are let into a cottage under an agreement and who then fail to pay the rent. This is because the offence requires the occupier to have entered “as a trespasser”.

These new police powers demonstrate that a stronger stance is at long last being taken against the unlawful occupation of private land. It is a welcome recognition of the rights of property owners.


Jonathan Clifford Senior Associate 0845 209 1165 [email protected]


F o l l o w o u r b l o g a t w w w . a g r i b l o g . c o . u k B i r m i n g h a m • B r i s t o l • L o n d o n • M a n c h e s t e r • S o u t h a m p t o n • T a u n t o n

Constructing new or additional equine facilities, such as gallops or ménages, can be an expensive business. Care must be taken at every step if costly pitfalls are to be avoided.

Developing Equine Facilities:Avoiding the pitfalls

Each site presents its own unique challenges, depending on the land and proposed construction (indoors, outdoors, soil type, drainage, surface type, topography etc). Obtaining expert advice and an accurate survey of the site will help to avoid the problems.

The PitfallsThe most common issues which arise with “defective” gallops involve drainage, membrane problems and surface quality and quantity. Where there is an existing membrane, it can become torn when a new surface is laid.

Sometimes the issues are caused by a lack of communication between the parties or simply defective workmanship on the part of the contractor. Either way, a contract will minimise this risk.

Essential steps to take• Consider specific requirements for proposed facilities at the outset and discuss these with the supplier.

• Provide full details of existing surface and consider its protection during the works.

• Ensure supplier must make good any damage to the existing surface before the new surface is laid on top.

• Check carefully the extent and depth of the surface to be supplied.

• Ensure that the surface is made of the correct material and that its composition is guaranteed. eg, if it contains wax, check how this will be mixed and in what quantities: too much can cause drainage problems potentially making the surface unrideable; too little can render the surface equally ineffective.

• Crucially, insist on a detailed written specification from the supplier, containing all agreed terms before agreeing to buy.

In an industry which likes to rely on a gentleman’s handshake, the prospect of a written contract can be unattractive. If problems arise, however, the lack of agreed details can result in facilities that are unusable, expensive legal proceedings and consequential losses.

Our Equine legal team has extensive experience of negotiating written contracts and can guide business owners through the process.

If works have already gone ahead and problems have arisen, our lawyers can also advise and if necessary take proceedings to remedy the problems and recover any losses.


Stuart Farr Partner 0845 209 1155 [email protected]


F o l l o w o u r b l o g a t w w w . a g r i b l o g . c o . u k B i r m i n g h a m • B r i s t o l • L o n d o n • M a n c h e s t e r • S o u t h a m p t o n • T a u n t o nB i r m i n g h a m • B r i s t o l • L o n d o n • M a n c h e s t e r • S o u t h a m p t o n • T a u n t o n

Diversifying part of the farm into a stableyard with grazing for horses can provide an attractive additional income stream. We highlight some of the issues which should be addressed.

Farm Diversification: Bring on the horses!

Planning permission will be required not only for change of use from agriculture to equestrian, but also for the type of yard being run i.e. livery, stud, racing.

• If a DIY yard is proposed, the farmer will maintain control of the yard and land. A DIY livery agreement (ie a right to use a stable and graze the land) should be signed by horse owners and should contain all the rules for the yard. A standard DIY livery agreement can be drafted and then used repeatedly.

• Renting Out: The farmer may want to rent the yard out to an equine professional for full/part livery, training, stud, racing or professional riding. For this arrangement a written business lease is essential. Depending on its length, it may have to be registered at H M Land Registry.

The lease should probably be contracted out of the statutory right to renew provisions, meaning that at the end of the term the tenant will have no right to remain or renew the lease.

If the land is within an agri-environment scheme or if the farmer wishes to use the land within the Single Payment Scheme, a business lease of the stableyard could be coupled with a grazing licence of the land.

• Grazing Licence: Another option is granting horse grazing licences, such as those used for polo ponies, which are turned away to graze over the Autumn/Winter months. If horses are simply grazing the land (no additional feed or activity) no planning permission for change of use is required. A grazing licence should be signed, giving shared grazing rights to the horse owner and leaving management control of the land with the farmer. This will help in relation to claims under the Single Payment Scheme or agri-environment schemes.

• Cross Country Courses: Building a cross country course for horses and their riders to use for training or competitions is popular. Planning permission is required for cross country jumps and their location on the farm. Farmers should consider the risks - a suitable disclaimer from liability should be signed before riders use the jumps; and adequate public liability insurance will also be needed.

For further information please contact: Sarah Jordan Associate0845 209 1046 [email protected]

This article is the third in a series on Farm Diversification, which we are running in Fieldtalk. Previous articles in the series are:

• Commercial lettings

• Educational Visits.

If you would like to know more about the legal implications of any particular type of diversification, we would be pleased to include this in our series. Please email [email protected].


B i r m i n g h a m • B r i s t o l • L o n d o n • M a n c h e s t e r • S o u t h a m p t o n • T a u n t o n

In a concerted effort to remove barriers to economic development and growth, the Government has published a raft of proposed changes to the planning system.

Planning: Proposals to loosen the reins

proposal is sorely lacking. However, any fast-tracking of the appeal process for agricultural businesses would be welcome.

Home extensionsDespite the furore this has generated, no details are yet available. A consultation has been promised and is awaited on the form the new permitted development (“PD”) rights should take for extensions to homes and business premises in non protected areas during a three-year period.

LPA’s have been particularly resistant to these proposals and threatened to make Article 4 Directions immediately withdrawing these new PD (these ”Directions” force people to make an application for permission where they would otherwise have PD Rights). The government does not seem put off and has pointed out that where permission is refused for development that would otherwise be PD, compensation can be payable.

OpportunitiesThese changes are designed to make development easier. If a development is planned it is worth staying up to date as the amendments are brought into force, because they may help reduce the cost and time taken to carry out the proposals

For further information please contact:Caroline Waller Partner 0845 209 1814 [email protected]

Many of the proposed changes are of general application such as:• extending the ability to “renew” existing permissions which are about to expire; • allowing applications to be decided by the Planning Inspectorate if the local authority has a track record of consistently poor performance in the speed or quality of its decisions; • increasing the availability of costs awards against Local Planning Authorities (“LPAs”) at appeal.

However, other proposals will be of particular interest for rural land and home owners including:

Conversion to DwellingsThe Secretary of State has announced the proposal to introduce permitted development rights to enable change of use from commercial to residential purposes, while providing the opportunity for LPAs to seek a local exemption where they believe there will be an adverse economic impact.

As always, the devil will be in the detail. Given that the rhetoric in support of this change is to “help the regeneration of our towns and cities”, it is currently unclear whether these proposals will extend to more rural areas, but worth keeping an eye on if you have a barn in commercial use that might be turned over to residential use.

Small commercial planning appealsThe Government intends to consult shortly on options to speed up planning appeals – including the introduction of a new fast-track procedure for some small commercial appeals. Again, the detail of this

In the case of Dutta and another v Hayes the defendant, Mr Hayes bought some land for breeding horses with an express agricultural right of way over adjoining land owned by the claimant, subject to an obligation to contribute towards the maintenance of the track.

The claimant’s raised no objection to the use of the track for accessing land used for grazing and exercising horses and even leased stables to Mr Hayes for that use.

However, when the defendant began to run a stud farm business on his land in 2010, the claimants contended that use of the track for such purposes was unlawful. They objected to the horse lorries, diggers, dumper trucks, cars, 4x4 vehicles, commercial vehicles etc driving along the track. Proceedings were brought by the claimants in the High Court.

In allowing the claim the Judge found that, although the established meaning of “agricultural use” does not include the stabling and keeping of horses (as opposed to grazing them), the meaning of “agricultural use” can be extended by convention of the parties. This did not extend, however, to the use as a stud farm, which fell outside the ordinary and statutory meanings of agriculture, the meanings established by case law

and the scope of any convention between the parties or their predecessors in title. There was no evidence that the parties had considered such use as likely in the future.

The Judge also held, however, that it would be impractical to grant an injunction to stop the use. Instead he awarded damages of £100 per calendar month as fair and just compensation for the intrusion caused to the claimants. The defendant also had to contribute 60% of the repair costs of the track.

For further information please contact: Sarah Jordan, 0845 209 1165 [email protected]

Case Notes: Can an agricultural right of way be used for a stud farm?


If you would like to receive future editions of Field Talk please contact Martha Harley: [email protected] Willmott LLP is a limited liability partnership registered in England and Wales with registration number OC344818. Authorised and regulated by the Solicitors Regulation Authority (SRA number: 510689),

whose rules can be found at www.sra.org.uk/handbook. Its registered office and principal place of business is 138 Edmund Street, Birmingham, West Midlands, B3 2ES. Any reference to a ‘partner’ is to a member of Clarke Willmott LLP or an employee who is a lawyer with equivalent standing and qualifications and is not a reference to a partner in a partnership.

This case was brought by Save Woolley Valley Action Group Ltd against Bath & North East Somerset Council. A landowner installed poultry units within paddocks to house free range ducks. The units, although substantial in size and weight, were not fixed to the ground and were intended to be moved around.

Following complaints, the Council considered the units, but concluded that no enforcement action could be taken and no environmental impact assessment (EIA) was required since the

Family farming businesses often rely on the financial support of the older generation, especially when expansion or diversification of the business is planned. Few would expect, however, such support to be caught by the Consumer Credit Act 1974.

Farm Purchase: Private loans and consumer credit

The 1974 Act was introduced to establish “for the protection of consumers a new system …concerned with the provision of credit”. Most people are therefore surprised to learn that the Act is also applied to loans by lenders, who are not in the business of lending money on a daily basis. Consider perhaps the farm sale in which the Seller agrees to defer receipt of part of the purchase price without security. Furthermore, it catches other scenarios, such as loans between family members or loans to beneficiaries by trustees of family trusts.

The Act is important because private loans cannot be enforced against the borrower without a court order, if the formalities of the legislation have not been complied with, leading to delays and additional costs for the lender, before money can be recovered.

ExemptionsSome types of agreement can be exempt from the regulations, but this will only apply in limited cases. Furthermore, some of those exemptions only apply if no interest is charged, so this may not be a viable option.

“Non-commercial loans” The next best step is to see whether the agreement can be kept within the regime for partially regulated “non-commercial loans”. With specialist

legal advice and planning, this can often be achieved and reduces the requirements of the Act. Even so, there are still 30 different sections of the Act which need to be considered.

It is not enough simply to include a statement in the loan agreement that the Consumer Credit Act does not apply, as such provisions are not enforceable.

Within family situations, there is a tendency to brush aside legal requirements especially if cost is involved. Beware, however, the costs incurred in ensuring the loan agreement is either exempt or compliant with the regulations would be far outweighed by the costs of obtaining a court order if relations soured and the borrower challenged the legality of the agreement.

For further information please contact:Mark BuckerfieldSenior Associate 0845 209 [email protected]

poultry units were chattels, not buildings and did not amount to “development” within the Town and Country Planning Act 1990.

In a judicial review of the decision, the judge found that despite the ability to move the units, planning consent and an EIA were required. He held that “Where the units were permanently in their paddock, and there was no limit on the length of time that they would remain there, the ability to move them around the paddock did not remove the significance of their presence in planning terms”

Case Notes: Moveable poultry sheds do need planning consent

briefing autumn 2012 clarke willmott agricultural …...briefing autumn 2012 clarke willmott...

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