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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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Update: Infrastructure Bill – Now a statutory right to access land to explore potential fracking sites

Wednesday 20th May 2015

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Farming Matters - Issue 14

Further to our article in the last edition of Farming Matters (here) the Infrastructure Act 2015 was passed on 12 February 2015. As previously reported there is now a statutory right to access land at a depth of at least 300 metres below the surface for the purpose of exploiting petroleum or deep geothermal energy in England and Wales.

Prior to the introduction of this right any person wishing to exercise access below this depth for these purposes would have had to obtain the consent of the owner of the mines and minerals. This consent will still be required for access up to a depth of 300 metres from the surface or for any other purpose.

The main purpose of the introduction of this statutory right of access is to remove potential obstacles to the extraction of shale gas by fracking. The provisions in the Infrastructure Bill before receiving Royal Assent which related to shale gas proved highly controversial and included attempts by Labour MPs to suspend further shale gas fracking for 30 months until an assessment was carried out. However, this was defeated by a substantial majority. The Act does limit the effect of the right of access so that it is no different to a right granted by a person, such as a landowner, who is legally entitled to grant such a right. Consequently, companies benefitting from the right of access must still comply with all other regimes governing petroleum, fracking or deep geothermal activities, such as obtaining all necessary planning permissions and environmental permits. 

The fracking companies remain keen to investigate potential sites even as oil prices have become lower. This is because there is a lengthy lead in time before any gas can be extracted. As the companies look round for potential sites for the siting of the well head there are opportunities for landowners who are willing to have these on their land. 

If you wish to discuss any issues with regards to fracking and the access rights to your land please do not hesitate to contact:

Charles Hansford
Partner, Real Estate
Tel: 01772 229 829

Windfarm dismissed due to detrimental impact on heritage assets

Wednesday 20th May 2015

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Farming Matters - Issue 14

The Secretary of State has blocked proposals for six wind turbines in the Derbyshire countryside, after concluding that the scheme would harm the settings of conservation areas and Grade I and II* Listed Buildings.

Bolsover District Council had initially refused Planning Permission for the project which aimed to deliver the six turbines, a control building, an Anemometer Mast and associated access tracks on a site around 2.5 kilometres south of Bolsover, but the decision was appealed.  The proposed project sat within the vicinity of a number of heritage assets, including the Grade I listed Hardwick (New) Hall, Bolsover Castle, a scheduled ancient monument and Grade I listed building and Stony Houghton Conservation Area.

In issuing his decision the Communities Secretary, Eric Pickles concluded that the scheme’s impact on local heritage assets would significantly outweigh any benefits.  In his decision letter Mr Pickles agreed that while the harm to heritage assets would be below that of “substantial harm” as set out in the National Planning Policy Framework the harm “must still be weighed against the public benefits in the planning balance”.  The Secretary of State decided that the relatively close proximity and high level of visibility of the turbines constituted a high level of harm to heritage significance and as such he considered that the harmful impact of the scheme were not and could not be made acceptable. 

The Secretary of State also concluded that walking and riding paths around Scarcliffe and Stony Houghton “would be appreciably less attractive than it is now as a result of the proposed windfarm development”.

This decision would be of interest to future windfarm developers who are proposing to erect turbines in the vicinity of listed buildings and conservation areas.  It is clear that it would need to be shown that the benefits of the windfarm would outweigh any impact on any nearby local heritage assets.

Should you wish to discuss any issues about this decision or for any other planning matter please contact:

Kevin Halewood
Director of Planning
Tel: 0151 600 3365

Property Dispute Resolution team - Agriculture disputes

Wednesday 20th May 2015

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Farming Matters - Issue 14

The Property Dispute Resolution team at Brabners offers a specialist and innovative approach to resolving disputes through working with clients to devise solutions in accordance with a client’s needs or strategy.  The Property Dispute Resolution team uses many different tactics to achieve a client’s aims in either resolving a dispute or achieving their needs, these include tactical advice, negotiations, mediation, arbitration and litigation depending on the best approach for the particular matter.

The team consists of all levels of expertise from partner to paralegal and, as such, enables us to provide the best advice on a cost effective basis.

Agricultural matters

The team has expertise in all aspects of property and real estate law from complex lease disputes to residential boundary disputes. In relation to agricultural matters, the team deals with disputes that arise in relation to all types of farming tenancies and licences or the serving of notices in relation to those tenancies. The team also has significant involvement in issues concerning rights of way, boundary disputes (including adverse possession and land ownership claims) and easement matters including sporting rights of profits a prendre. The team regularly advises on the enforceability and discharge or modification of restrictive covenants.

An alternative to the court system

The Property Dispute Resolution team endeavours to find solutions to any potential property issue which may arise and this includes the recent issue of the Courts having significantly increased the issue fees. The Court fees rose, in some cases by over £8,000. For example a client who would previously have paid a fee of £1,515 will now have to pay £10,000.

In order to assist in dealing with this, the Property Dispute Resolution team has devised an alternative to the court system. This is a service which offers legal resolutions for property disputes whilst avoiding not only the Court fees but also the formalities required by the Court (which can mean that a Court action takes many months to reach trial) and, therefore, the significant costs of preparing for and dealing with the Court process. The service is quick, cost effective and confidential.

You can also follow this link to our website Legal Property Soultions and read more in our blog: Mediation - Does it work for everyone?


The Problem of Fly Grazing

Monday 8th December 2014

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Farming Matters - Issue 13

Fly grazing - leaving horses to graze on land without the owner’s permission – is a growing and expensive problem. Horses are increasingly being fly grazed to keep ownership costs down. There is no specific legislation to allow landowners to remove horses from their land quickly and cost effectively.

This is an issue not just for landowners but for enforcement agencies, local authorities, welfare charities and ultimately tax payers.

The Welsh Parliament has recently addressed this problem. There are now calls for similar legislation in England and Scotland.


Landowners with unauthorised horses on their land will want to take prompt action to remove them.  Landowners also need to act quickly as they risk being held liable for damages if the animals injure anyone entering the land; or cause accidents/injuries when they escape.

The health of the animals could give rise to liability or even a criminal prosecution under the Animal Welfare Act 2006.

Possible remedies

If the horses are obviously under stress, the landowner should approach Trading Standards, the RSPCA or World Horse Welfare. These organisations can remove the horses, but only where there are immediate welfare issues.

Finding the horses’ owners can be difficult or impossible. If the legislation on horse passports and micro chips is not complied with (as is often the case, because the UK’s equine identification system is unenforceable) then the owners cannot be traced.

If the animals are not ‘under the control of any person’, they are classified as straying animals under the Animals Act. Once it has been established that the horses are not under control – i.e. not being fed, looked after or ridden – then the next step is to place an Abandonment Notice on the land in question. The notice will demand on the landowner’s behalf that the animals be removed within seven or fourteen days; and that if they are not removed voluntarily by the owners, they will be removed by the landowner.

The experience of some landowners is that Abandonment Notices can be effective. Those who regularly fly graze their horses are well aware of the procedure.

If the horses are not actually removed from the land, however, the landowner will have to take action to remove them, by instructing specialist bailiffs.

The need for legislation

Fly grazing is a serious and urgent problem, with no straightforward remedy.  Welsh local authorities have power to seize, impound, return to the owner or (in the last resort) humanely destroy horses which are grazing on land without lawful consent. The English and Scottish parliaments are now responding to pressure to put in place suitable legislation.

The Control of Horses Bill proposes to give greater powers to both local authorities and landowners to remove fly grazed horses in a timely, humane and cost effective fashion.  It is now at Committee stage in the Westminster Parliament.

Watch this space.

If you would like to discuss any issues about fly grazing or for any other land related matters please contact:

Helen Ryan

Associate, Real Estate
Tel: 01722 229 801
Email Helen



Solar Benefits Block Out Subsidies

Monday 8th December 2014

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Farming Matters - Issue 13

The latest update on the CAP Reform and the impending introduction of the new Basic Payment Scheme has left farmers with the benefit of solar farms reeling as the current proposals (as with everything under the CAP Reform nothing has been formalised) are that farmers who use agricultural land for production of electricity through solar panels will not be eligible.

DEFA have said that from 1 January 2015 the withdrawal of Farm Subsidy Payments are “designed to stop productive farmland being “blighted” by solar farms, to ensure more agricultural land is dedicated to growing crops and food”.

It is not intended that eligibility will be withdrawn from fields not benefiting from solar panels so a claim can be made on the rest of the qualifying holding.

No apparent consideration is being given to the grazing of animals under and between solar panels and, as such, this is another blow for diversification by farmers. We understand campaigners are seeking to oppose the plan but this is unlikely to have any affect and it is expected that the proposals will come into force on 1 January 2015 with the new CAP Reform Basic Payment Scheme. This is despite the understanding that solar farms go hand in hand with food production but unfortunately it is likely DEFA’s controversial view on solar panels will ensure that these proposals have affect.

Should you wish to discuss any matters regarding this or for any other renewable energy or land related issue, please do not hesitate to contact:

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




Introduction of Statutory Right of Access: How this will Affect Your Land Particularly Fracking

Monday 8th December 2014

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Farming Matters - Issue 13

The Government has added clauses to the Infrastructure Bill which if passed will implement new proposals for underground access. The reason for these clauses is to remove a potential obstacle for operators who wish to seek to extract gas, oil or geothermal energy and is particularly relevant to the extraction of shale gas by fracking.

Where you own property the starting position is that you own what is below the surface of the land - usually referred to as the mines and minerals. This is subject to exceptions, for example statute provides that petroleum is vested in the Crown and coal is vested in the Coal Authority. Furthermore the right to the mines and minerals may be severed from the ownership of the surface land. If you do own the mines and minerals then you control what happens with them and can prevent a third party from disturbing the mines and minerals without your consent as otherwise a trespass is committed.

This is supported by case law where the leading case of Bocardo SA v Star Energy Onshore Limited provided that an owner of the surface land could succeed in an action for trespass to prevent an operator drilling for petroleum below the surface owner’s land. This is relevant to the fracking industry where a number of lateral wells lead off a vertical well. The lateral wells will run for a considerable distance and may pass through the mines and minerals owned by a number of parties. The permission of these parties would be required for each lateral well which could be withheld or granted in return for example a monetary payment.

Currently, if permission is not given then there is the ability to obtain a Court Order allowing a right of access pursuant to the Mines (Working Facilities and Support) Act 1966. This is a rarely used Act and the Government views the procedure under this Act as being lengthy and costly. The Government therefore proposes that there should be a statutory right for access to underground land.

In order to assess public opinion the Government carried out a public consultation this summer on its proposals, the Government response to which was published on 25 September 2014. The Government response stated that 99% of the 40,647 respondents opposed the proposal to legislate. However, the Government took the view that as 90% of the responses did not address the consultation questions and gave views on fracking in general then these could be ignored. The conclusion therefore was that no issues were identified which would mean the Government’s overall policy approach was not the best available solution.

A right to use land that is at least 300 metres below the surface…

The proposed legislation would grant a right to use land that is at least 300 metres below the surface in order to exploit petroleum or deep geothermal energy and also give rights to the operator to pass substances through or into the land and to leave substances in the land. The intention is that the operator would voluntarily notify the local community under which the access is taking place and voluntarily make a payment to the local community. The legislation provides for delegated powers for the Secretary of State to make regulations to enforce notification and payments if the operator does not honour the voluntary schemes.

The legislation in respect of access will not remove the need for other planning and environmental permissions that are required to develop for example shale gas or geothermal projects. The right of access will exist independently of these permissions. The Government is keen to point out that the legislation does not alter the current position in respect of the first 300 meters from the surface.  Therefore, any works up to 300 metres below the surface will still require either an agreement with the owner of the mines and minerals or a Court Order under the Mines (Working Facilities and Support) Act 1966 granting access rights, as otherwise there will be a trespass.  Clearly though the ability for the owner of the mines and minerals to prevent or demand a payment for granting permission for shale gas extraction will now be diminished.

The Infrastructure Bill had its third reading in the Lords on 19th November 2014 and has now been passed to the Commons for approval.

In the meantime if you have any queries on the proposed changes to the legislation or mines and minerals in general then please contact:

Charles Hansford

Tel: 01772 229 829

The Importance of the ‘Clean Break’ for the Farming Family

Monday 8th December 2014

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Farming Matters - Issue 13

The family farm, often passed down through generations, is rarely protected by cohabiting couples entering into a cohabitation agreement or engaged couples entering into a prenup agreement to protect the farm and the farmer’s livelihood. 

Over the past 12 months the importance of such family law agreements and obtaining a clean break financial order on separation (rather than couples simply separating and hoping that a partner will not ‘resurface’ in future and make financial claims against the farm) have been reinforced by the number of farming family cases the Family team have been instructed to advise on following land being designated on local plans as suitable for housing development.

The prospect of a claim being made against the family farm rises steeply if the value of agricultural land rises from £10,000 per acre to £300,000 plus per acre in prime commuter belt as many separated spouses might feel less troubled by bringing a financial claim, many years after separation, if they think that all or a part of the farm will be sold for development and their estranged spouse will get a windfall payment due to the reclassification of the land , or part of it, for housing development.

Best advice

Many land owners struggle to comprehend how a former partner could make a financial claim against a family farm owned in the farmer’s sole name many years after a couple have separated. There is no time limit to bring a financial claim although divorce courts will look at any delay and the reasons for it. The best advice though is not to not leave the family in ‘limbo’ and at risk of a financial claim as potential claims can be resolved through a financial ‘’clean break ‘’ order. This type of order prevents either spouse making any further financial claims against the other.

Some families think their son or daughter is protected from financial claims but if a husband or wife is paying their spouse spousal maintenance the receiving spouse can ask the court to award them a lump sum instead of ongoing spousal maintenance. A lump sum payment is far more likely if there is going to be cash available, as a result of the sale or development of land, to pay what is known as capitalised spousal maintenance or a one off payment.

Often, frustratingly from a family law perspective, plans are made to transfer part of the farm or land to children or to create a farm partnership as part of estate planning as a result of the land’s development potential. While this estate planning is vital it is equally critical that family circumstances and the timing of any transfers is carefully considered. From a family law perspective, all too often, what is or becomes a family law claim, could have been avoided through proper paper work management. Accordingly paper work can be just as important as good crop or stock management, to be ignored at the family peril.

For more information on any aspect of family law agreements or financial claims on separation and clean break financial orders please contact the Family team.


Additional Changes to the General Permitted Development Order Includes a New Class for Schools and Nurseries

Monday 8th December 2014

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Farming Matters - Issue 13

There have been additional changes introduced earlier this year to permitted developments rights applying in England.  The Town & Country Planning (General Permitted Development) (Amendment and Consequential Provisions) (England) Order 2014 (“the Order”) came into force on 6th April 2014.

The Order introduced a number of amendments allowing for a change of use (and some associated physical works) for buildings used for agricultural purposes to residential use (Use Class C3). This involves the Applicant following a “prior approval” process, were the Local Planning Authority can consider impacts of the proposed change.

The Order also introduced a new class which allowed a change of use from a building used for agricultural purposes to a state funded school or nursery providing childcare. Again, this involves the Applicant following a “prior approval” process were the Local Planning Authority can consider the impact of the proposed change.

These new permitted developments rights do not apply in Sites of Special Scientific Interest (SSSI), Safety Hazard Areas or military explosive storage areas. They also do not apply to Scheduled Monuments. Finally, the changes to permitted development rights will also not apply to Listed Buildings.

The above changes follow on from changes made to the permitted development rights regime which were introduced from 30th May 2013 and which allow some agricultural buildings under 500 square metres to change to a number of others uses falling within use class A1, A2, A3, B1, B8, C1 and D2 of the Use Classes Order.

Should you wish to discuss the Order or any other planning matter, please contact:

Kevin Halewood

Director of Planning
Tel: 0151 600 3365
Email Kevin

Farming Matters - Issue 12 July 2014

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Farming Matters - Issue 11 April 2014

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