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A B C D E F G H I J K L M N O P R S T V W Y

Farming Matters

A quarterly newsletter that focuses on current legal and commercial issues facing the agricultural industry, with the latest news, deals and practical advice.

Latest Issue

In the latest edition of Farming Matters we have a varied bulletin looking at post-Brexit issues for British Agriculture, plus features on the risks of railway crossing across your land, changes for landlords for tax allowances when replacing furnishings/furniture and a summary of the wide-ranging changes coming soon on renting in Wales. Finally, we have a guest feature from the NWF Group and how they help farmers delivering feed, food and fuel across the UK.

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Britain’s exit from the European Union: A look at the issues for landowners and farmers

Thursday 3rd March 2016

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Farming Matters - Issue 16 

We now know that there is going to be a referendum on 23 June this year to decide if the UK should leave the European Union (EU). Up until this date the news will be dominated by the arguments put forward by the leave and remain campaigns.

For landowners and farmers there are four main areas that are relevant to landowners and the rural economy. The first area which springs to mind is what is going to happen to the Basic Payment and the other payments made to undertake environmental work. In 2014 UK farmers received 54% of their income from direct support. There are widely different views on whether there should be direct support or if it requires fundamental reform. Few countries in the developed world do not have a funded support scheme of some description and the indications are that if the UK did exit the EU, then a replacement support scheme would be put in place. However, the concern would be that the level of support would be reduced. 

The next area to consider is the effect on trade. The EU is the major market place for the products of the rural economy with around 60% of all agri-food exports being exported within the EU and around 70% of the agri-food imports coming from the EU. Currently there is a free movement of goods between countries within the EU. It is likely that if the UK does leave the EU then some kind if arrangement will be made with the EU for the continuation of free trade. Examples of this are the arrangements with Norway and Switzerland. What is clear however is that the regulatory requirements (which is the third area of relevance) would still apply. It is often alleged that the UK enforces EU standards more rigidly than other EU countries and the common view is that these EU standards are often over the top. However, any goods supplied to the EU would still have to comply with the EU’s regulatory requirements and standards. Furthermore it is likely that most EU regulations would be transposed into UK law and therefore any change would be minimal. 

The final area of relevance is the labour market. In the first quarter of 2015 there were 1.9 million citizens from other EU countries employed in the UK labour market. The majority of the leave campaign view the ending of the free movement of people within the EU as a main reason for exiting the EU. Again a common held view is that workers from other countries in the EU are working in this country to the detriment of UK workers. However is it often the case that many of the jobs that the workers from the EU undertake are the types of jobs that employers are unable to recruit UK workers to carry out. An example of this is seasonal work such as fruit picking. The ending of free movement could therefore affect the availability of workers which in turn may force employers to increase salaries to obtain workers from the UK with the potential knock on effect on prices and profitability. Even the most strident critics of free movement therefore tend to concede that some form of seasonal worker exemption may be necessary for the agricultural sector.

Clearly there are going to be many developments before the referendum and landowners and farmers will be affected differently depending on the circumstances that applies to their particular situation. We will be keeping an eye on the developing debate and will report to you further in the next issue of Farming Matters.

If you would like to discuss any of the points raised in this article please do not hesitate to contact:


Charles Hansford
Partner, Real Estate 
Tel: 01772 229 829

Agriculture Repair and Maintenance Regulations: A look at the new liabilities for fixed equipment and other liabilities

Thursday 3rd March 2016

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Farming Matters - Issue 16

From 1 October 2015 the Agriculture (Model Clauses for Fixed Equipment) (England) Regulations 2015 (“Regulations”) came into force applying to agricultural tenancy agreements. The Regulations have added new liabilities for fixed equipment and provided further detail on existing liabilities. 

One such addition is in relation to the electrical supply system at a property. The landlord is now obliged to repair or replace the electrical supply system at a property which includes the consumer board but excludes sockets, switches, light fittings and similar electrical furniture.

In addition, the landlord must have the electrical supply system regularly inspected, maintained, and serviced and they must keep a full record of any works carried out with such records to be available to the Tenant for review should they request the same.

Another amend which has been introduced by the Regulations is that the list of items for which landlords can recover half the costs of has been extended. The list now includes floor boards, interior staircases and doors, windows and opening skylights.

The list of items for which the tenant is obliged to repair and maintain has also been extended. The extended list now includes water heating systems, manholes and cattle grids.

Pursuant to the Regulations, the tenant may also now carry out repairs for some items which would be considered to be the landlord’s liability. The tenant is now able to repair or replace fire or carbon monoxide detectors or alarms which are not working. 

Finally, the Regulations have also increased the tenant’s liability for the replacement of roof tiles and slates from £100 per annum to £500 per annum.

If you wish to discuss any aspects about these updates or for any issues you may have regarding repairs and maintenance matters please contact:


Kathryn Davies

Solicitor
Tel: 0151 00 3352
Email: kathryn,davies@brabners.com


Mines and Minerals: Matters to note for development land

Thursday 3rd March 2016

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Farming Matters - Issue 16 

Up to the 13 October 2013, there was a flurry of activity in registering at the Land Registry an interest in mines and minerals where the surface land was not owned by the party registering the interest. The driver for this was the risk that any subsequent purchaser of the land will take free of the interest of the owner of the mines and minerals if their interest had not been registered by this date. It should be noted however that the registration of an interest in the mines and minerals may not necessarily be shown on the title of the surface land. Therefore, it is always worth carrying out a search at the Land Registry to check what titles are registered against that particular piece of land earmarked for development.  
 
An upshot of the registration process is that is has brought into focus the ability for the party who owns the minerals distinct from the surface land to control any development of the surface land. If, for example, the foundations of a building are sunk by the surface owner into the minerals without the mineral owner’s permission then the mineral owner can claim a trespass has occurred and seek damages. A possible defence to such a claim is that the foundations do not in fact interfere with the minerals or that the mineral owner does not own the specific type of mineral into which the foundations are being sunk. In order to assess this a geological survey is required, and these are likely to become more commonplace. This is because rather than engaging with the owner of the minerals, one possible option is to obtain indemnity insurance against a claim for trespass by the mineral owner for the value of the development.  
 
Not surprisingly, before providing a quote the indemnity insurers are now querying whether a geological survey has been carried out so that they are aware of the type of minerals under the surface. Where a development is planned and it is known that the mines and minerals are owned by a third party, it therefore would be worth considering having a geological survey commissioned at the outset.  The merits and cost of a potential claim by the mineral owner and the ability to obtain insurance can then be assessed and factored into any discussions on price. 
 
If you have any queries regarding mines and minerals and the issues raised in this article please do not hesitate to contact:
 
Partner 
Tel: 01772 229829
 

Planning update: for farmers and rural businesses

Thursday 3rd March 2016

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Farming Matters - Issue 16

Here we outline two recent planning matters that are relevant for farmers and other rural businesses. 

  1. The Department for Communities and Local Government and the Department for Environment, Food and Rural Affairs have opened a rural planning review. Views are invited about the effectiveness of the current planning system in rural areas and improvements that could be made and are welcomed from anyone involved in rural development, especially from farmers and other rural businesses.
     
  2. The High Court has dismissed an application for judicial review of planning permission that was granted for development of land in the green belt for a crematorium in in the case of R (Timmins) v Gedling Borough Council and another [2016] EWHC 220 (Admin). The claimant brought the challenge on five grounds, one of which was that the council had misinterpreted or misapplied national policy as set out in paragraph 88 of the National Planning Policy Framework (NPPF).

    Although this case creates no new law, it will be of interest to rural landowners as another example of the correct approach to the interpretation of "very special circumstances" required for approval of development in the green belt and the meaning of "any other harm" following the Court of Appeal's decision in Secretary of State for Communities and Local Government and others v Redhill Aerodrome Ltd [2014] EWCA Civ 1386.

If you wish to discuss any planning development matters you have please do not hesitate to contact either:


Kevin Halewood

Director of Planning
Tel: 0151 600 3365
Email: kevin.halewood@brabners.com

 


Claire Pertricca-Riding
Head of Planning and Environmental
Tel: 0151 600 3268
 

 


The Deregulation Act 2015 - what does it mean for residential landlords?

Tuesday 10th November 2015

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As if the work of a residential landlord is not difficult enough, we now have the Deregulation Act 2015 (“DA”) which came into force on 23 March 2015. It has brought a number of changes to landlords’ obligations with respect to residential tenancies and from 1 October 2015, further changes have been made to Section 21 notice (s.21).

The aim of the legislation was to assist in clarifying what the landlord needs to comply with, however, Hannah Carter, Senior Solicitor in the Property Solutions team, has analysed the changes and considers that whilst clarity may have been achieved on some aspects, it has not necessarily been achieved on others.  

Tenancy deposits

The DA clarifies the law following the decisions made in Superstrike Ltd v Rodrigues [2013] EWCA Civ 669 and Charalambous v Ng [2014] EWCA Civ 1604 by making changes to the Housing Act 2004 (“HA”). The changes relate to the requirements for registration of tenancy deposits and providing prescribed information to tenants addressing the position prior to 6 April 2007 and on or after 6 April 2007.

Before 6 April 2007

Section 32 DA, through the insertion of s.215A to the HA, clarifies that where the fixed term expired prior to 6 April 2007 and the tenancy became a statutory periodic tenancy prior to that date, the landlord will not be liable for financial penalties for non-compliance with s.213 HA, however, if it wishes to serve a s.21 notice, it will either need to first pay the deposit back to the tenant or register it with a deposit scheme and provide the prescribed information.

After 6 April 2007

Section 33 DA (s.33 DA), through the insertion of s.215B to the HA, clarifies that where the fixed term expired after 6 April 2007 and the tenancy become a statutory periodic tenancy after that date, the landlord will need to comply with s.213 HA by protecting the deposit and providing the prescribed information. The landlord can either do that by 23 June 2015 (being 90 days from the date the DA came into force) or, if s.21 proceedings have been issued for possession of the property, before the conclusion of those proceedings.   

Changes to Section 21 notices and prescribed legal requirements

The DA has brought changes to the information that needs to be provided in a s.21 notice, as well as stipulating certain steps with which the landlord must have complied before it can be serve a valid s. 21 notice. Notably, these changes presently only apply to tenancies that are created on or after 1 October 2015, however, on 1 October 2018 they will apply to all ASTs existing at that date.

So for all tenancies created on or after 1 October 2015, prior to serving a valid s.21 notice, the landlord, must now have and provide to the tenant:

  1. An Energy Performance Certificate

  2. A gas safety certificate

  3. A prescribed information booklet called “How to rent: the checklist for renting in England”. The booklet can either be given to the tenant as a hard copy or electronically, if the tenant is happy to receive it by email.

Also, as of 1 October 2015, in the case of a statutory periodic tenancy, it is no longer necessary for the termination date specified to be the last day of the period. However, if a landlord serves notice to end the tenancy prior to the end of the period then the tenant is able to claim back any rent it has paid in advance in relation to the time to the end of the period.

Many landlords choose to serve a s.21 notice at the start of the tenancy. It will no longer be possible to do this as Section 36 DA (s.36 DA) provides that a s.21 notice cannot be served within the first four months of the tenancy, and in case of a replacement tenancy within the first 4 months of the original tenancy. The result of this change is that it is no longer possible for a landlord of a six month fixed tenancy to serve a s.21 notice to expire on the last day of the fixed term. For the avoidance of doubt, this does not apply to a tenancy that has become a statutory periodic following the expiry of the fixed term. Section 36 DA also introduces time limits on issuing possession proceedings following the expiry of a s.21 notice. As such, for a notice served during a fixed term, possession proceedings cannot be issued after six months have passed since the date of expiry of the notice. Further, where a notice is served after the fixed term (when a statutory periodic tenancy has arisen) possession proceedings cannot be brought if more than four months have passed since the expiry of the notice.   

Retaliatory eviction

To prevent a landlord from serving a s.21 notice in response to a tenant submitting a complaint about the condition of the property, s.33 DA invalidates a landlord’s s.21 notice where:

  1. The tenant has submitted a written complaint to the landlord regarding the condition of the property before the landlord has served a s.21 notice.

  2. The tenant has submitted a written complaint and the landlord has not provided an adequate response within 14 days beginning on the day on which the complaint was made.  If the landlord provided an adequate response within these 14 days he can proceed with the s.21 notice. Although the Act does not explicitly refer to the point at which the landlord can serve a s.21 notice, say in the event the landlord responds to the tenant’s complaint after the 14 day requirement, it appears from s.33 DA that the tenant needs to make a complaint to the local authority within a reasonable amount of time and depending on the local authority’s decision to serve a relevant remedial notice or not, the landlord then either has to do remedial work or can serve the s.21 notice in the absence of the local authority serving a remedial or improvement notice.

  3. The landlord has provided an inadequate response to the complaint – the criteria for an adequate response are found at s.33 (3) DA. 

  4. The tenant has complained to the local authority and the local authority has served an Improvement Notice or Emergency Remedial Notice. Once the landlord has completed the works it can then serve a s.21 notice.

Please note this article is a summary of the main changes and it is not a comprehensive or exhaustive guide. Any landlord involved in letting residential properties should carefully refer to the relevant legislation and seek legal advice if in any doubt about the extent of the applicable obligations.

Smoke alarm regulations

A further change for the residential landlord to note is that as of 1 October 2015 regulations have been introduced relating to smoke alarms in residential lettings. For more information on these changes please refer to our other article here.

If you wish to discuss these changes in more detail please do not hesitate to contact:


Hannah Carter

Senior Solicitor
Tel: 0151 600 3056
Email: hannah.carter@brabners.com


A look at the new Smoke and Carbon Monoxide Alarm Regulations

Tuesday 10th November 2015

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The new Smoke and Carbon Monoxide Alarm (England) Regulations 2015 came into force on 1 October 2015. The Regulations impose an obligation on private rented sector landlords in England to ensure a smoke alarm is installed on each storey of premises that are wholly or partly used as living accommodation and carbon monoxide detectors are installed in any room that is used wholly or partly as living accommodation and contains a solid fuel burning combustion appliance.

It should be noted that although the legislation refers only to solid fuel burning appliances in relation to carbon monoxide detectors, it is also recommended that working alarms are installed in rooms with gas appliances. The purpose of these Regulations is to reduce the number of injuries or deaths from smoke or carbon monoxide poisoning in the private rented sector.
 
The House of Lords expressed concern that the legislation was badly drafted and not enough had been done to inform landlords of the changes. However, despite these concerns, the Regulations were approved and passed by Parliament. Penalties of up to £5,000 will be issued to those that flaunt the rules and only a limited period of grace will be given by the relevant local authorities. The Department for Communities and Local Government (DCLG) has published two booklets containing guidance for local authorities, landlords and tenants on the new Regulations.

If you like more information or to discuss any other land or estate matters please contact:
 

Charles Hansford
Partner 
Tel: 01772 229 829
Email: charles.hansford@brabners.com

Immigration Act: New tenancy checks apply from 1 February 2016

Tuesday 10th November 2015

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Farming Matters - Issue 15

In light of the current refugee crisis, it is worth reminding you of the impact of the Immigration Act 2014 (IA 2014), which will also be relevant if your farm uses migrant workers.

This Act prohibits private landlords of residential properties from allowing certain people to occupy those properties based on the immigration status of the occupiers. The landlord will have to check the status of prospective tenants, and other authorised occupiers, to ascertain whether those parties have the right to occupy the premises before granting a tenancy. The landlord must also make sure that someone’s right to occupy the premises does not lapse. Breaching the prohibition could lead to a civil penalty of up to £3,000.

Since 1 December 2014 the provisions have been piloted in Birmingham, Walsall, Sandwell, Dudley and Wolverhampton but the Government has now announced that the provisions are to apply to the whole of England from 1 February 2016. From this date all landlords should ensure that they obtain and preserve the necessary audit trail.

The Government has published Home Office: A short guide for landlords on right to rent to assist landlords, homeowners and letting agents in carrying out the necessary right to rent checks. This contains guidance on who must make the initial checks, how to carry out those checks and when repeat checks are required.

Should you wish to discuss these changes or any other agriculture, land or estate matters, please do not hesitate to contact:
 


Charles Hansford

Partner 
Tel: 01772 229 829
Email: charles.hansford@brabners.com


Chancel repair liability – medieval madness continues to reign

Tuesday 10th November 2015

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The Land Registration Act 2002 gave historic interests such as crown rents, tithe rents, manorial rights and most notably chancel repair liability (CRL) status as overriding interests. CRL is a legal obligation on some property owners in England and Wales to pay for certain repairs to the local parish church.

In an attempt to phase out CRL these historic interests were given a ten year deadline by the Land Registration Act 2002 which ended on 12 October 2013. It was initially thought that a failure by the Parochial Parish Council to register those interests before that date would mean they were lost forever. In practice, interests are only lost when there has been a transfer of value, which of course might not take place for many years to come. During this time it would still be possible for the Parochial Church Council to register their interest and burden the freehold owner with chancel repair liability.

The scenarios in which a landowner could potentially be liable for chancel repairs can be summarised as follows:

  • The property was owned prior to 13 October 2013
  • A transfer of land has taken place but valuable consideration was not provided (what amounts to ‘valuable consideration’ is not certain but we should be careful if the property has been transferred for a figure under its market value)
  • CRL has been registered by the Parochial Church Council against the property
  • A caution and a notice to claim were added to the property upon first registration.

In order to confuse matters further, the Land Registry have stated that they are still accepting the registration of unilateral notices and cautions against first registration from the Parochial Parish Council, regardless of whether a sale for value has taken place. Whilst this should not affect the position on liability, it will require legal action to rectify the registration and challenge any claim by the Parochial Parish Council.

Throughout the years there have been numerous efforts made to either phase CRL out or abolish it altogether. The first reading of Lord Avebury’s Chancel Repairs Bill 2015 took place in June and its aim is to end chancel repair liability. The chances of the bill moving forward are slim however after the Government went on record just a year ago stating there were no plans to change the law on this area.

In summary, uncertainty looks like it shall continue to cloud this archaic area of law. The first basic point should be to check title deeds for any reference to or protection of the liability. If there is no reference, it would be appropriate to perform a search and advise clients to take out insurance if a potential liability is identified. Finally, with the proposed changes mentioned above in mind practitioners should keep track of any developments that are likely to affect this area of law.

If you would like more information about this please do not hesitate to contact either:


Rupert Jackson 

Head of Agriculture, Liverpool
Tel: 0151 600 3396
Email Rupert

 


Jamie Hurworth

Trainee Soliticor
Tel: 0151 600 3145
Email Jamie

 

 


Client achievement: Environmental Crop Management Limited selected as a representative to raise standards in agriculture alongside the Prime Minister

Tuesday 10th November 2015

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Farming Matters - Issue 15

Environmental Crop Management (ECM) Limited, a long standing client of Brabners, has been selected to represent agriculture alongside David Cameron in the 2014 Parliamentary Review. ECM, based in Appleton Thorn, Warrington, is a pioneering company specialising in environmentally friendly farming techniques.

The Agriculture Edition of The Parliamentary Review consists of a political commentary, summarising the year in agriculture along with a look back at the events in Westminster. In the Review highlighting best practice, ECM looks at integrated crop management which is a system that helps farmers to produce profitable food that is safe and healthy demonstrating that profitability, respect for biodiversity and best environmental practice can be mutually compatible.

You can read The Parliamentary Review by visiting ECM’s website here.

http://ecmltd.co.uk/ecm-selected-as-a-representative-to-raise-standards-in-agriculture-alongside-the-prime-minister/

Pictured: Steve Eatough an ECM argonomist (left) and Peter Clare, Managing Director (right)

Latest projects

In their latest collaboration ECM are helping farmers adapt to climate change by exploiting two new agricultural techniques. The first is turning rising carbon dioxide (CO2) levels into a farming advantage. Higher temperatures and CO2 levels increase the night-time respiration of plants, causing crops to burn off grain yield that could otherwise be harvested. ECM have identified a possible method to reduce night-time respiration so that crops trap more CO2 and create approximately 10% extra food yield.

The second is a method of reducing the loss of nitrogen fertiliser through the production of nitrous oxide, a highly damaging greenhouse gas. They have looked at a method of slowing down the bacteria that cause nitrous oxide production and speeding up the rate at which crops metabolise nitrogen. Initial findings are very positive, with cereals, potatoes and maize all showing higher yields and reduced levels of nitrous oxide.

Another project will be to look at how plants can be helped to become more water efficient, as climate change raises many crop and water-related issues.

Without the cooperation of their farmer‑clients, none of the techniques would have been utilised and ECM are grateful to them for open-mindedness and the care they continue to show for the environment.

ECM’s contribution to the environment has been recognised with another Green Apple award in 2015 and also an International Corporate Social Responsibility Excellence Award this year as well.

If you wish to contact Environmental Crop Management Limited and discuss their crop management techniques please contact Peter Clare, Managing Director on Tel: 01565 777444 or by email: peterclare@ecmltd.co.uk.


Post-election analysis – A look at what we can expect

Wednesday 20th May 2015

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Farming Matters - Issue 14

Relief or Anguish?  No Coalition?   No SNP Issues?  No Liberal Democrats!

We cannot be politically biased but we are able to comment on the outcome of the General Election Result. Of course we are not fortune tellers! Our analysis is based on pre-election stances, pre-election promises, manifestos, the result and the initial comments and this article is drafted before the first cabinet meeting and, indeed, before the first cabinet speech by any minster, new or old.

What can we expect?

  • New homes – commitment to build 200,000 new starter homes.

  • Planning – more protection for Green Belt, AOBs and National Parks.

  • Infrastructure – pushing the Conservative programme of investment and making infrastructure projects such as HS2 and HS3 with likely reform to the CPO procedures.

  • Taxation – increases in IHT threshold for married couples and civil partners to £1,000,000, death of the mansion tax.

  • British Farming – more support and a structured programme.

  • Hunting – free vote on The Hunting Act.

EU Referendum – Expected 2017.

Newsflash – results already in – Bank of England has reduced economic forecast for 2015 down from 2.9% to 2.5% as an immediate result of the election and economic review.

Who will lead to support your causes?

Amber Rudd – New minster for Energy and Climate Change (old but not new as Ms. Rudd was already an Energy Minster in the previous coalition government).  Ms. Rudd is a supporter of emissions reduction and investment in the energy sector.  The Conservative manifesto proposed to halt subsidies to new onshore windfarms which Ms Rudd’s will support.  She is alleged to be a safer confident pair of hands unlike the expected appointee, Matt Hancock.

Expectations – good.

Liz Truss – remains the Environment Secretary.  Ms Truss is an enthusiastic backer of British farmers and food.  There are proposals to widen the badger cull, despite scientists declaring it ineffective.  The basic payment scheme (is already in disarray after the introduction of the new system last year) needs to be resolved.

Expectation – fair to middling.

Greg Clark - New Communities and Local Government Secretary, replaces Eric Pickles – a welcome replacement for all onshore wind supporters. 

What of fracking changes yet to come?  Lancashire County Council’s decision to postpone approval of an application by Cuadrilla Resources to begin “fracking” tests until June will be seen as a first major test for everyone in relation to both government and public support for shale gas exploration.

Overall Expectation – unpredictable as the future of many financially based decisions and projects will be uncertain.  Watch this space.

If you would like to discuss any agriculture or land and estate matters you may have please do not hesitate contact either:


Rupert Jackson

Head of Agriculture, Liverpool
Tel: 0151 600 3396
Email: rupert.jackson@brabners.com

 


Charles Hansford

Partner, Real Estate
Tel: 01772 229 829
Email: charles.hansford@brabners.com


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