BULLETIN - ALA | Agricultural Law Association · · 2017-03-30Mediation in the settlement of agricutural rent ... address the concerns of trade associations that “the impact of

BULLETINIssue 77 – Summer 2014

l Defending pollution prosecutionsl Liability for third party actionsl VAT: not all payments are

rental paymentsl Farming succession

l Break notices: pitfalls and traps l CAP: Regulations and announcementsl Salvesen v Riddell Remedial Orderl Live & Learn: Fixtures, fittings and

agricultural tenancies

VATTraps in store: not all payments are rental paymentsA note on unwanted VAT consequences in letting property

FARMING SUCCESSIONSucceeding to succeedImportant issues are being addressed at top level regarding succession to farm businesses

ENVIRONMENTDefending pollution prosecutionsMatthew Knight discusses the role of negotiation in the resolution of pollution prosecutions

LIABILITY‘It wasn’t my fault’: primary, vicarious and strict liability for thirdparty actionsThe potential liability for acts of third parties is analysed by Carrie de Silva

EUROPEAN FOCUSCAP: EU regulations and local announcementsAn update on recent announcements in London and Edinburgh from Geoff Whittaker

BREAK NOTICESBeware of the pitfalls and trapsLisa Barge looks at some of the more difficult aspects of break clauses for landlords and tenants

SCOTTISH PERSPECTIVESalvesen v Riddell resolved?A review of the recent Remedial Order affecting Scottish holdings by Adèle Nicol and Alasdair Fox

LIVE AND LEARN (ALA STUDENT/TRAINING SECTION)Fixtures and fittings and agricultural tenanciesPhilip Day reviews the law of chattels and fixtures in the context of agricultural lettings

OTHER FEATURESChairman’s NotesGeoff’s GeottingsBrussels UpdateStatutory InstrumentsALA’s next milestoneCAP: the next instalment(s)Forthcoming events

CONTACT DETAILSGeoff WhittakerEditor/Consultant & AdviserKimblewick Cottage, Prince Albert Road,West Mersea, Colchester, CO5 8AZ.Tel: 01206 383521email: [email protected] ALA Bulletin welcomes readers’ letters or commentsand enquiries from anyone wishing to contributematerial. Photographic contributions will be gratefullyreceived and credited accordingly. The ALA Bulletin doesnot accept advertisements but is happy to insert flyers.Eleanor PinfoldConsulting EditorPinfold & Co., 63 Palmer Avenue, Cheam,Surrey, SM3 8EF.Tel: 020 8644 8041; Fax: 020 8641 7328email: [email protected] credits:Cover: Matt Gibson; Page 6: Kodachrome25;Page 9: ProjectB; Page 10: Robert Lenfert; Page 13:Joe Clemson; Page 14: Leadinglights; Page 15:Hugh McKean; Page 16: Mark WR; Page 17:Groomes PhotographyDesigned and produced by Geoff WhittakerDisclaimer: Information in the ALA Bulletin isprovided on the basis that no liability for loss to anyperson caused by reliance upon it is accepted by theAgricultural Law Association or any of its CouncilMembers nor by any contributor, editor or producer

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In this issuewww.ala.org.ukTwitter@AgLawUK

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Directions, withdrawal and costs under the newRules – Christopher McNall & Caroline Hutton(Spring 2014)Letting land for horses – Helen Gough (Spring 2014)Devolution, the law and agriculture – Jeremy Moody(Winter 2013/14)Spray and sprayers – Joel Woolf (Winter 2013/14)Mediation in the settlement of agricutural rentdisputes – Paul Pridmore (Autumn 2013)CPO compensation: The changing costs horizon –Matthew Knight (Autumn 2013)Paying for the environment – Julie Robinson(Summer 2103)

In past issues

Back issues of the ALA Bulletin fromAutumn 2002 onwards are availableunder the Materials tab on theALA website.

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3ALA Bulletin – Summer 2014

Chairman’s NotesPhilip Day, Wilkin Chapman LLP, Louth

Philip Day

how we are grateful to Geoff, who works tirelesslyfor the Association, for all that he does for us.

A report was received at the Council meetingon the CAP Conferences which we held in theSpring. Whilst the turnout was better thanoriginally feared it was still a little disappointing.On the positive side, the feedback from thosewho attended was that the Conferences were firstclass and were very well received. We aregrateful to all of the speakers who gave of theirtime to make the Conferences such a successand all those who came and supported them.

Eleanor Pinfold reported on behalf of theEducation Committee. The Fellowship, now in itssixth year, will again be held in the autumn. Thisyear, for the first time, there will also be aFellowship Plus, a one day course for Fellowswhich will provide them not only with CPD butwith an opportunity to meet and share thoughtswith their brethren from other cohorts.

Starter for Ten had again been well attendedand received and that will be held again in 2015in its usual slot in the Spring.

We plan to run further CAP Conferences asmatters develop. As Geoff notes in his piece onPage 10 we now have some Delegated andImplementing Regulations from the EU andnational decisions are being made.

In addition there will be a one day Conferencein December on Traps for the Unwary which will

There has been one Council meeting sincethe last edition of the Bulletin. I shouldmention that apart from the Council

meeting prior to the AGM there are only two faceto face meetings of Council each year. Theremainder of the meetings are held by telephoneconference. This is done to keep the cost ofrunning the Association down and I am pleasedto report that it works well.

Jon Robertson of Edinburgh and KatharinePaulson of London were co-opted on to Council.Jon represents the Scottish members of ALA andhas for many years organised and chaired theJoint Conference we have in Edinburgh with theWS Society. Whatever decision is made north ofthe border in September, the ALA will continue tohave a presence in Scotland!

Katharine works at Practical Law Companyand is responsible for the rural land section ofPLC. We are sure that her membership ofCouncil will bring great benefits to the Associationand Katharine will always be pleased to havefeedback from members in relation to theprecedent and information services that PLCprovides.

Perhaps the most important decision of themeeting was that we were delighted to re-appointGeoff Whittaker as Consultant and Adviser for afurther period of two years. I have said previously

cover a miscellany of questions. Council alsoheard of the growing number of regional meetingsnow being held. It is so encouraging to seeMembers getting together in their own localitiesand expanding the work of the Association.

Details of all meetings, regional and national,and of the regional organising groups areavailable on the website at www.ala.org.uk/events-calendar and anyone interested inbecoming involved either in existing groups orby forming a new one in an area not yet coveredshould please get in touch with Geoff. His contactdetails are on the Page 2.

VATTraps in store: not allpayments are rental paymentsWith the relaxations to the General

Permitted Development Order broughtin over the last year it has become

easier to use redundant agricultural buildings foralternative purposes. Where those purposes arecommercial, the rules relating to VAT can be inissue and cases have come to light of peoplegetting their fingers burnt by failing to appreciatesome of the niceties.

Changes to the detail of VAT levied onprovision of self-storage space were brought inlast year, but there is now guidance from HMRCwhich seeks to help the landlord/landowner.HMRC Guidance Note 10/131 attempts toaddress the concerns of trade associations that

“the impact of the changes has not been fullyunderstood”.

Where any building, unit or fully enclosedcontainer or similar structure is made available forthe storage of goods by either the person towhom the supply is made or a third party withthat person’s permission, VAT will be chargeableon the payment received whether or not thelandlord has opted to remove his exemption forVAT in respect of rent.

The definition of space which is ‘used forstorage’ is fairly straightforward andencompasses the physical storage of goods in arelevant structure, regardless of any intention onthe part of the landlord or the content of the

letting agreement. However, provided theoccupier (or, as the case may be, any third partyacting with his permission) does not physicallystore goods and the letting agreement does notprovide for the storage of goods – eitherexpressly or implicitly in the nature of the spacemade available – then VAT will not, prima facie,be chargeable.

Cases of mixed use for storage and otherpurposes will be treated case by case. TheGuidance gives examples of a warehouse unitwhich is used primarily for storage but with asmall ancillary area for an office, which would befully chargeable; and the use of premises forretail with a small storeroom annexed, which

4 ALA Bulletin – Summer 2014

would not (unless the landlord opts to tax). Thoseexamples are expressly illustrative and “eachcase should be considered on its own merits”.

There is clearly a risk for any landlord whohas not elected to cease exemption that they mayfail to collect VAT or make a false declaration,with the penalties and lost income that wouldfollow.

Rent vs charges for servicesIt may also be useful to recall at this point thecase of Antiques Within Ltd v HMRC 2 which,although on a slightly different point, is relevant toa landowner providing premises for storage andrelated services.

In that case, an antique dealer rented out floorspace for the storage of fellow dealers’ property.Each dealer was allocated a designated room ordesignated floor space in the main retail area.

Fees of between £50 and £100 per week werecharged depending on the space allocated.

While they were not present, he also provideda sales facility as agent, although no separate feewas charged for that service. Cheques weremade payable to the principal dealer and,together with cash, were kept in a designatedpouch and handed over from time to time.

Card payments were handled by theagent/landlord and the relevant amount paid overfrom time to time, less a charge for administrationand dealing via credit card.

There was an understanding with thestallholders that in the event that their designatedspace was underpopulated the landlord woulddisplay his own goods, clearly marked as such,within that space for the purposes of appearance.No charge was made for that function and allproceeds were retained by the landlord.

Stallholders were entirely free to accept or rejectthat service both at the commencement of theiroccupation and at any time during it.

The dealer treated the rental payment fromstallholders as exempt from VAT since he had notelected to cease his exemption, and he viewedthe payments for cheque and card receiptadministration as ancillary to that letting.However, HMRC took the view that the letting offloor space and the sales facility were separateservices and that the sales facility should havebeen standard rated. The Tribunal agreed.

Anyone converting redundant agriculturalbuildings for workshop, retail or storage would bewise to treat such arrangements with care.

1 See www.hmrc.gov.uk/briefs/vat/brief1013.htm2 [2013] UKFTT 89 (TC)

VATVAT

FARMING SUCCESSIONSucceeding to succeedOne of the main points of last year’s Future of Farming Review was

to focus on the issues facing, on the one hand, those who wouldenter the farming industry and, on the other, those who are

carrying on into later life. In an era when the average age of farmers isaround 59 and rising (although there are question marks over howaccurate the evidence is on which that is based), succession from one tothe other is vital.

Questions relating to tax have been raised with HMRC and those andother matters are on the menu for TRIG. However, the issues are notlimited to legal or other professional questions, nor even to the industryframework they serve. They are at least as much to do with the economicsof farming and the mindset of some farmers who, for financial, lifestyle orother reasons, simply do not want to give up.

DEFRA convened a seminar in June at which farming leaders,charities, advisory bodies (including ALA) and government itself put theirminds to the potential solution of the current problems regardingsuccession within agricultural businesses.

Succession is too often the elephant in the farm kitchen – everyoneknows it’s there but no-one is willing to talk about it. Cultural and mindsetissues inhibit some farmers from allowing “the children” to take onresponsibility because they are “too young”, leaving father in control of thecheque book in his 90s and children unable to inherit the responsibilities ofmanagement until well into their 60s.

Advisers of whatever hue can play a vital role in encouragingsuccession planning at a reasonably early age. Whether that is aprofessional adviser – the agronomist or business consultant or agentmight have the closest relationship with the farmer – or a family member,or indeed a friend in the local pub, getting farmers to think aboutretirement not as failure but as a natural progression is important.

Equally important is encouragement of the younger generation to seetheir seniors not as a block on progress but to understand the cultural andemotional issues involved. The skills needed can be akin to those of amediator, not advocating one or other side of the argument but facilitatinga dispassionate exchange of views.

Technical issues such as preparation of wills and balancing assetswithin a family while protecting the viabliity of the farm are obvious. Thecombined input of specialist advisers may deter some, but the cost ofgetting it right is inevitably a mere fraction of the cost of getting it wrong!

One of the lifetime vehicles coming under new scrutiny, particularly asan encouragement to established businesses to engage with new entrantsand those without access to land of their own, is that of share farming.

Intellectually, it may be arguable that tenancies, contractingarrangements and even partnerships are all sub-species of share farming,it stands alone as a business structure, albeit one often classified byreference to what is it not. For instance, Lennon & Mackay: AgricutluralLaw Tax & Finance describes it as an agreement whereby a personentitled to the occupation of land allows another to carry out farmingoperations on it under an arrangement which remunerates on a basisdependent on results and which is “neither a partnership, nor a tenancy,nor a contract of employment”.

The arrangement is not confined to single-season cropping agreementsand may, for example, consist of a landowner providing land, building anddairy equipment share farming with another who provides dairyingmanagement skills and capital.

The work of the new DEFRA group is just beginning, but an early taskis to spread the word amongst those in the industry of the need to addresssuccession management both within individual businesses and on thelarger stage in good time.

Geoff ’s Geottings


40 years andcountingAs you will see from the back page, ALA is

putting in hand the celebration next year ofits 40th Anniversary. A time to look back andacknowledge what we now are, but also a timeto look forward and consider what more wemight become.

From the independent and ultimatelycollaborative efforts of the Solicitors’ EuropeanGroup, the CLA and the then Ministry’s ownlawyers, it has evolved into the UK’s largestcross-disciplinary organisation for ruralprofessionals. All of us at HQ are entitledto take a little pride in that.

But we don’t stand still. As we move into thenext 40 years, we are looking at how to broadenand improve the service we provide. That iswhere you, our Members, are most important.

Resources are relatively modest, but knowingwhat is important to you will help us allocate themmost effectively.

It is encouraging to see feedback forms fromConferences and other events which, with veryfew exceptions, are hugely complimentary. Moregenerally, though:l what would you like to see us do that we don’t

do at present?l what do we currently do that we could do

better?l what do we currently do that you think we

should not?Do let me know what you think – contact detailson Page 2.

How not to draftdocumentsAcautionary tale regarding the preparation of

legal documents arose from Brooke & ors vPurton and ors [2014] EWHC 547 (Ch).

A client had given instructions for thepreparation of a will. He had five children, two byan ex-wife, one from another relationship and two(minors at the time of his death) with his current,unmarried partner.

He had sought advice on the availability ofreliefs and, when he asked further, was told thatthe most simple answer would be to marry hiscurrent partner. He baulked at the potentialconsequences in the event of divorce and choseinstead to create a discretionary trust with a letterof wishes indicating his prefernece that hispartner and all his five children be treated equallyin distributing the assets.

The will that was prepared contained,according to the judge’s analysis, a trustincluding, first, the assets which would benefitfrom business property relief or agriculturalproperty relief. Secondly, further assets would betaken into the trust to the extent that thereremained a shortfall between the value of the firstassets net of whatever relief was applicable andthe inheritance tax nil-rate band (£312,000 at thetime of drafting, subsequently increased to£325,000).

The testator was killed in a motorcycleaccident in 2011.

The will, far from producing the effect he hadintended, frustrated that intention because thetext had been founded on an assumed exemptionfor gifts to his spouse, despite it having beenmade clear at all times that he was not marriedand had no intention of becoming married.

The excrutiating part of the story comes fromthe evidence given by the solicitor who haddrawn the will. She had, according to thejudgement, taken “a precedent from the firm’slibrary stocked on its computer server, which shehad adopted ... without realising that it wasinappropriate” (my emphasis).

At the risk of sounding like an old buffer,it can surely never be appropriate professionalbehaviour simply to create a document from aprecedent without considering how that precedentmight need to be amended to reflect the specificinstructions to hand.

I’m reminded of a passage from Reach for theSky, Paul Brickhill’s biography of the RAF legendDouglas Bader, whose instructor had coachedhim that “Rules are written for the obedience offools and the guidance of wise men”.

The same might be said of precedents.Don’t be a fool!

ECJ and SPSThe European Court of Justice has been busy

recently looking at a couple of questions onthe Single Payment Scheme. One related toliability for acts of contractors, the other todefinitions of temporary and permanent grass

whch may have repercussions in the cropdiverification requirements of greening.Van der Ham v College van Gedepteerde van

Zuid-Holland (C-396/12) concerned Dutchrequirments that manure be spread “in a mannerwhich was low in emissions”. The claimantargued, inter alia, that the error was notintentional and the court considered thedefinitions of intention and negligence in thecontext of cross compliance.

The Regulations do not address thosedefinitions and therefore the concepts “mist begiven an independent and uniform interpretation,having regard to the usual meaning of thosewords, the context of [the relevant] articles andthe objective pursued by the legislation of whichthey are part”.

Intention requires both an objective breach ofthe rule and subjective aim on the part of theclaimant to bring it about or an acceptance ofpossible non-compliance, roughly equivalent tothe English law concepts of intention andrecklessness.

A claimant will be liable for breaches whetherfrom his own conduct or as the result ofintentional or negligent acts in (a) the choiceor monitoring of his contractor or (b) instructionsgiven to the contractor.Grund v Landesamt für Landwirtschaft,

Umwelt und ländliche Räume des LandesSchleswig-Holstein (C-47/13) deals with thequestion whether reseeding with different types ofherbaceous forage is in effect a crop rotationinterrupting permanent pasture.

The Advocate General noted linguisticinconsistencies in the German text which impliedthe need to plough, where the claimant had infact scarified and overseeded. However, shereached her conclusion not on the basis of theactivity but on the purpose of the crosscompliance provision regarding permanentpasture – i.e. the environmental benefits ofgrassland – and of the actions undertaken on theland in question and their effect on that purpose.

She concluded that where land is used for atleast five years and within that time there hasbeen ploughing – and thereby removal of a crop– and replacement with another type ofherbaceous forage, that will count as croprotation; but if the previous crop is not removedbut merely overseeded, that will not.

I underline that this is only the AG’s opinionand not the decision of the court, but in mostcases the latter follows the former. The questionpromises to provide some interest in the contextof the two- and three crop provisions of greening.


ENVIRONMENTDefending pollutionprosecutionsMatthew Knight, Knights, Tunbridge Wells

One of the areas which has seen the mostenvironmental improvement since 1946,and in particular since 1990, is Britain’s

rivers. The anecdotal view is that rivers like theThames, the Tyne, the Tees and the Tone areprobably the cleanest and most biodiverse theyhave been since the Industrial Revolution; insome places since the Middle Ages.

Most of these improvements have been as aresult of the harsh – or at least hard – legal andregulatory framework which owners andoccupiers of land and buildings have beensubjected to, in particular since the EnvironmentalProtection Act 1990 (EPA 1990) and the creationof the Environment Agency.The nature of pollution offencesEssentially pollution is a strict liability offence andif you own or occupy land or buildings from whichpollution escapes into the environment and inparticular into a main river you are liablewhatever the circumstances.

In the past few years my firm has acted fornumerous landowners and occupiers investigatedor prosecuted for pollution offences incircumstances ranging from tractor mountedmechanical sprayers falling into rivers with a fulltank of spray on board; to building operations toconstruct a new dairy unit disturbingcontaminated ground; to silage clamps saturatedwith unseasonable heavy rain to slurry spread on

fields just before unexpected heavy rain; tofarmers targeted by third party fly tippers andheld responsible for that illegal waste.

The common thread running through all thesecases has been that all the clients had a goodexcuse for what occurred in that they each had aplausible story to tell the authorities (generally theEnvironment Agency but in some case a Boroughor District or County Council or a UnitaryAuthority) and if all things had been equal theobvious approach would have been to take thecase forward to trial on a not guilty plea.

Sadly for them, however, all things in thecontext of a pollution investigation or prosecutionare anything but equal and so our advice to allthese many clients has been to plead guilty (ifprosecuted) or to accept a caution (in return forno prosecution being taken) or to receive awritten warning in the more minor cases wherethe problem was the first that had occurred.

This had the advantage (for the clients) ofdisposing of the case relatively quickly, relativelycheaply and with no adverse publicity at all inmost of them.

However, there is an inclination among well-funded (or insured) owners and occupiers andsome of the more distinguished environmentallawyers to push the boundaries in an appropriatecase and one such was heard in 2013 arising outof an entirely unintentional pollution accidentwhich had occurred in 2003.

limb of the provision did not depend upon adeliberate act because the provision imposedstrict liability.

The relevant statutory provisions are ss.33and 34 of the EPA 1990: see box opposite.

In his leading judgement, Gross LJ gavedetailed consideration to the word “deposit” ats.33(1)(a), finding that it was to be given itsordinary and natural meaning, and agreed withthe District Judge in the Magistrates’ Court belowthat this was “put, place(d) or set down”. Hefound a construction by reference to ordinaryusage. Accordingly the test for the court was“whether an unintended escape falls within areasonable range of meanings for ‘deposit’”; ithad no real difficulty in finding that it did, and thatthis conclusion was supported by the statutoryscheme as a whole.

The court’s judgement was based upon twocrucial points:l the contrast between the first limb of

s.33(1)(a), which contains no requirement of“knowledge”, and the second and third limbs,which do require it; and

l the existence of the statutory defence of duediligence pursuant to s.33(7), which wouldameliorate the potential harshness of anoffence of strict liability that required no mensrea.

Thames Water argued that the existence of s.34was proof that s.33 applied only to ‘intentional’deposits, or the Environment Agency would befree to prosecute the more serious s.33 offenceand cast the burden of proof on the defendant,but this was rejected by the Administrative Courton the facts; s.34 had no application as thesewage was not “controlled waste” until it had

What is a ‘deposit’?This case was R (ThamesWater Utilities Ltd) v BromleyMagistrates’ court and TheEnvironment Agency,1

in which a two-judgeAdministrative Court(Gross LJ and Singh J)dismissed Thames Water’sapplication for judicial reviewof the decision of BromleyMagistrates’ Court thatunintentional escapes ofsewage from ThamesWater’s system in 2003amounted to “deposits” forthe purposes of s.33(1)(a)of the EPA 1990, and thata conviction under the first

The best planis for the accusedis to negotiatethe least worstoutcome as soonas possible

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EnvironmentEnvironment

escaped the system: up to that point it was withinthe provisions of the Urban Waste WaterDirective2 as “already covered by otherlegislation”; that being the case so, s.34 had noapplication.

Whilst the Administrative Court’s rejection ofThames Water’s s.34 argument appears soundon the facts of the case, its conclusion that a“deposit” for the purposes of s.33(1)(a) caninclude an unintentional escape, and that thisconclusion is of general application and notlimited to escapes from a sewage systemgoverned by its own particular statutory regime,may cause more potential difficulties. ThamesWater argued that its case was analogous to ashopper who trips, falls and in so doing “deposits”the contents of his or her shopping bag.

This was dismissed by the court as thes.33(7) defence would be available in suchcircumstances and the courts would ensurethat unwarranted cases such as that wouldnot be pursued. Whether that view prevailsover time remains to be seen but it is the lawat the moment.

Benefits of negotiationTo my mind this case reinforces the advisabilityof the conclusion that I have previously drawnnamely that, no matter how extenuating thecircumstances are, the best plan for any owner oroccupier accused of having caused or permittedan escape of pollution is to negotiate for the leastworst outcome as soon as possible: a writtenwarning or a caution or if prosecuted to pleadguilty and to contend for a conditional discharge.

This policy can have some unexpectedlyfavourable consequences: about 10 years agoI had to defend a number of farmers in theNorth East whose silage clamps had beenoverwhelmed by heavy rain after a verywet summer.

I armed myself with summer rainfall recordsfor the areas in question (Northumberland andDurham) for 10 years or so and managed topersuade all the magistrates before who theyappeared to give all of them conditionaldischarges. Before the first of these cases theEnvironment Agency’s prosecutor ventured “Ifyou get Mr. X a conditional discharge for this

one I’ll eat my hat” which was a reasonableobservation given that, in that case, there wasevidence of a very high level of migratory fishmortality in the River Coquet below the farmbuildings from with the discharge had come.When the conditional discharge was given itwas a great regret to me (and my client) thatthe prosecutor had no hat to eat.

During the course of doing these cases in theNorth East I became aware that quite a lot offarmers in the area had found themselves in thesame situation and had tried to run their cases ona not guilty plea; none of which were successfuland some of which resulted in heavy fines, largebills for legal costs and in one case, a serious riskof prison all of which might well have beenavoided or mitigated if their legal teams hadtaken a different line from the outset.

1 [2013] EWHC 472 (Admin)2 Council Directive 91/271 concerning urban

waste water treatment

Environmental Protection Act 1990s33: Prohibition on unauthorised or harmful deposit, treatment or disposal etc. of waste(1) Subject to subsections (1A), (1B), (2) and (3)… a person shall not…

(a) deposit controlled waste or extractive waste, or knowingly cause or knowingly permit controlled waste or extractive waste to bedeposited in or on any land unless an environmental permit authorising the deposit is in force and the deposit is in accordancewith the licence;

...(7) It shall be a defence for a person charged with an offence under this section to prove—

(a) that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence; or...(c) that the acts alleged to constitute the contravention were done in an emergency in order to avoid danger to human health in a

case where—(i) he took all such steps as were reasonably practicable in the circumstances for minimising pollution of the environment and

harm to human health; and(ii) particulars of the acts were furnished to the waste regulation authority as soon as reasonably practicable after they were

done....s34: Duty of care etc. as respects waste(1) Subject to subsection (2) below, it shall be the duty of any person who imports, produces, carries, keeps, treats or disposes of

controlled waste or, as a broker, has control of such waste, to take all such measures applicable to him in that capacity as arereasonable in the circumstances—(a) to prevent any contravention by any other person of section 33 above;(aa) to prevent any contravention by any other person of regulation 12 of the Environmental Permitting Regulations or of a condition

of an environmental permit;(b) to prevent the escape of the waste from his control or that of any other person; and(c) on the transfer of the waste, to secure—

(i) that the transfer is only to an authorised person or to a person for authorised transport purposes; and(i) that there is transferred such a written description of the waste as will enable other persons to avoid a contravention of that

section or regulation 12 of the Environmental Permitting Regulations, or a contravention of a condition of an environmentalpermit, and to comply with the duty under this subsection as respects the escape of waste.


LIABILITY‘It wasn’t my fault’: primary,vicarious and strict liabilityfor third party actionsCarrie de Silva, Principal Lecturer, Harper Adams University

This note considers liability for the wrongsof sub-contractors, prompted by thedecision in Woodland v Essex County

Council.1 Although this involved a particular classof defendant (a public body with responsibility forschools), there was much discussion of widerissues including my old favourite, Rylands vFletcher and the rule therein.2

The potential liability for the wrongs andpersonal safety of contractors has been an areaof unease in rural practice following cases suchas Morris Marshall and Poole,3 and the renewedemphasis in Autoclenz Ltd v Belcher4 thatdocumented employment status will carry littleweight in the face of contradictory evidence.

Three categoriesAt law, there are three discrete but sometimesconverging routes to liability for the wrongs ofothers: primary, vicarious and strict.

Primary liabilityPrimary liability arises where, although anotherhas committed the immediate wrong, youare personally liable either because (a) yourappointment of that third party was, of itself,negligent, (b) you have yourself lacked carein some part of the operations or (c) you havea non-delegable duty of care.

With regard to head (b) in a health and safetycontext, the message of recent cases and HSEguidance is, broadly, that either you ensure sub-contractors are taking due care or you effectivelytreat them as employees, with the concomitantrisk assessment, supervision and training asappropriate.

The nature of checking sub-contractor’smethods and/or work will depend on the situationincluding the nature of work (e.g. specialist, easilyoverseen, environment, public exposure, etc.)and the nature of the worker (e.g. self-employed,employed by large organisation, age, experience,etc.). Useful reference can be made to the HSEguide, Using Contractors.5

A key feature of cases has been anexamination of systems of communication andspecification of responsibilities. Failures in thisarea led to a section 3(1)6 conviction of acontractor for the death of a sub-contractor’semployee in R v Watkin Jones and Son Ltd 7 andwas also a feature of the Morris, Marshall andPoole case, under the same legislation, whereno-one had clarified whether the engaging agentor the self-employed workman was carrying outrisk assessments.8

Liability under (c) is relatively rare but wasfound by the Supreme Court in Woodland vEssex County Council. A council school engageda freelance swimming teacher and was sued innegligence after a child suffered brain damagefollowing a swimming lesson. It was found thatthere was no lack of care in the appointment ofthe teacher in question. This would normally beenough to absolve the engager of liability unlessit could be found that the duty of care was non-delegable.

Although not all instances were raised inWoodland, circumstances of non-delegable dutywere usefully set out in Alcock v Wraith9 andincluded inter alia where there is support forneighbouring land – the dividing structuresexception; cases involving the escape of fire orother hazardous things under the rule in Rylandsv Fletcher; operations on the highway exposingthe public to danger; and cases involving ultra-hazardous activities.

A category not mentioned in Alcock is wherethere is a pre-existing relationship between theparties and a vulnerable claimant, per Woodland,normally in education or healthcare. Lady Halehighlighted the problem of three children injuredin a swimming lesson: pupil A being at anindependent school with contractual protection;B at a state school employing its own teacher,

the school being vicariously liable for itsemployee; and C at a state school with afreelance teacher.

Is it right that the school is liable to pupilsA and B but not C? Regardless of the legaldistinctions, she found an overarching principleof personal responsibility on behalf of the schoolto its pupils which was non-delegable.

With regard to the nature of the duty ofcare for ultra-hazardous activities, there wasclarification and constraint, favourable to theengaging party, in Biffa Waste Services10 whereit was held that only if activities were ultra-hazardous regardless of precautionary measureswould the duty be non-delegable. It would take‘exceptional facts’ for a contractor to be liable forthe negligence of his/her sub-contractor.

A novel point on the matters was heard in theTinseltime case.11 Tinseltime claimed thatRoberts’s demolition work caused a nuisancesuch that excessive dust damaged stock andmachinery in their tinsel factory.

Roberts had been engaged by Davies whohad, in turn, been engaged by DenbighshireCounty Council for the A5 Pont Melin RhugBridge project. Were Davies, DenbighshireCounty Council and/or the Welsh Assembly liablefor Roberts’s wrong?

As seen above, this will only be where thereis a non-delegable duty. Such a duty may existwith major civil engineering projects such as thison the grounds of ultra-hazardous activity/activityon the highway but it was held that eachoperation should be taken in isolation. The wrongin question related to the demolition of a singlebuilding. That particular job was not unusuallyhazardous. It was not open to the claimant to lookat the nature of the entire A5 project in arguingthat there was a non-delegable duty.Vicarious liabilityA second line of principle with regard to thewrongs of others is vicarious liability. It isestablished law that there will be no liability forthe wrongs of sub-contractors (subject to theabove consideration of primary duty) and therewill be liability of an employer for the wrongs ofemployees, if carried out in the course ofemployment.

The paramountpurpose is theprevention ofpersonal injuryand worse

“”


LiabilityLiabilityRecent cases have largely centred on whether

the wrongdoer is an employee or not. Mentionhas been made of Autoclenz where workerswere found to be employees, despite a contractof engagement purporting otherwise.

Beyond that, in considering whether aCatholic organisation could be vicariously liablefor the acts of priests, the Supreme Court heldthat vicarious liability may go beyond formalemployment to encompass relationships ‘akin’ toemployment.12 And in a practical equine context,albeit County Court, Smith v Harding13 showedthat where a worker voluntarily opts for theadvantages of freelance work, they cannot thenclaim the protection of employment. Being clearabout the status of workers, and ensuringcontractual, tax and insurance treatmentmatches what is actually happening, is key.Strict liabilityFinally, there are the cases involving strict liabilitywhere lack of care is not at issue. Liability will beascribed where the defendant has an underlyingresponsibility, for example as the owner oroccupier of land or the keeper of livestock.

Two key areas of strict liability in tort in theUK are Rylands v Fletcher and the Animals Act.Rylands is rarely applicable today as manyescapes which would have formerly come underthe rule, e.g. of water, are now under statutorycontrol.14

Under the Animals Act 1971 s2(2), despiteconcerns following Mirvehedy v Henley,15 aconsiderable number of cases have failed, eitherbecause the animal in question wasn’t displayingparticular characteristics (so bolting, bucking,rearing, spooking horses are likely to be caught– quietly grazing cows won’t be16), or damagewas unlikely to be severe17 or the claimantvoluntarily undertook the risk, e.g. experiencedhorse people are deemed to be aware of theinherent risks.18

There are also further defences, such as thatthe defendant could not have been expected toknow about the characteristic of the animal19 orit was the claimant’s fault.20 With regard toresponsibility for the actions of others, caseshave largely turned on vicarious liability andemployment status.21

Precaution against liabilityThe best protection again legal exposure is, ofcourse:l to adopt good practice, per industry and HSE

guidance as appropriate;l to document that practice; andl to regularly review and update.

For all the instances where a defendant is foundliable on the basis of a complicated, artificial legalconstruct, there are many more when they wouldhave been protected by the application in theirdaily activities of a measure of common sense.

Where working with contractors, ensure thatresponsibilities are documented and understoodto avoid assumptions on both sides that the otheris doing something when neither is, which canhave tragic consequences.

It must ever be borne in mind that theparamount purpose of all this is the prevention ofpersonal injury and worse, with legal complianceas both an aid to and a consequence of goodpractice.

1 [2013] UKSC 662 [1868] UKHL 1, (1868) LR 3. See de Silva,

C S (2006) The Continuing Life of Rylands vFletcher : a comparative analysis of thedevelopment and enduring use of the rule inEngland and Wales and the common lawworld. RICS ROOTS Rural ResearchConference, Oxford, April 2006.

3 (2011) Mold Crown Court, sitting in ChesterCrown Court, 20th December 2011,ref. T20110335

4 [2011] UKSC 415 www.hse.gov.uk/pubns/indg368.htm6 Health and Safety at Work, etc. Act 1974,

liability for persons other than employees7 [2013] EWCA Crim 9698 See also Uren v Corporate Leisure (UK)

Limited and Ministry of Defence [2011] EWCACiv 66 for a useful discussion of riskassessments and the relationship betweenthird party and contractor.

9 [1991] 59 BLR 16, Court of Appeal10 Biffa Waste Services Ltd and others v

Maschinenfabrik Ernst Hese GmbH andothers [2008] EWCA Civ 1257

11 Tinseltime Ltd v Roberts, Davies,Denbighshire County Council and the WelshAssembly [2011] EWHC 1199 (TCC) (try everypossible defendant!)

12 The Catholic Child Welfare Society & others vThe Institute of the Brothers of the ChristianSchools & others [2012] UKSC 56

13 (2013) Manchester County Court, CaseNo. 2IR7296

14 Including: water – Reservoirs Act 1975,Schedule 2, Water Industry Act 1991, s209;waste – Environmental Protection Act 1990;animals – Animals Act 1971, s2(2); nuclearwaste – Nuclear Installations Act 1965; gas –Gas Act 1965. See Stannard (T/A WyvernTyres) v Gore [2012] EWCA Civ 1248, D Prideand Partners & others v Institute For AnimalHealth & others [2009] EWHC 685 (QB) andLMS International Ltd & others v StyrenePackaging and Insulation Ltd & others [2005]EWHC 2065 (TCC) for recent explorations ofthe principle

15 [2003] UKHL1616 See Livingstone v Armstrong (2003)

Newcastle County Court 11th December 200317 s.2(2)(a), see Elliott v Townfoot Stables (2003)

Newcastle County Court, 3rd September 200318 s.5(2), see Goldsmith v Patchcott [2012]

EWCA Civ 18319 s.2(2)(c)20 s.5(1), see Smith v Harding (2013)21 See Smith v Harding (2013), Puzey v Wellow

Trekking (2005) Bristol County Court,11th February 2005

ALA Bulletin – Summer 201410

EUROPEAN FOCUSCAP: EU regulations andlocal announcementsGeoff Whittaker, West Mersea

Against the background of the publication inthe Official Journal of more EU regulationon the new CAP,1 we now have further

announcements on the way forward in Englandand Scotland. Wales promises moreannouncements “later this summer”.

The draft Delegated Regulations publishedin March are unamended after some posturalcommentary but no proposals from eitherCouncil or Parliament. In addition, there is anImplementing Regulation dealing with some ofthe mechanical requirements for Member Statesregarding the use of the contract clause; theposition on inheritance; reversion to the NationalReserve; and like matters.2

The Commission has also published aWorking Document attempting, without prejudice,to give some guidance at European level onsome aspects of the greening conditions andother matters to help Member State governmentswith their implementation.3

Greening in EnglandIt is on the greening conditions that DEFRA’srecent announcement concentrated. You willknow by now that farmers with more than 15haof arable land will, subject to exemptions, beliable to maintain 5% of that arable area as EFAduring 2015 and 2016. At that point there will bea review, subject to which the relevant area mayincrease to 7%. It is the area which might qualify

as EFA that the first of the new announcementsaddresses.

Buffer strips; land lying fallow; areas withcatch crops or green cover; areas with nitrogen-fixing crops; and hedges will all be able to beclassified as EFA for these purposes. The precisevalue of any given item will be subject to aweighting list in the interests of balancing theireffect. The weightings are contained in Annex Xto Regulation 1307/2013, a revised version ofwhich is inserted by Delegated Regulation639/2014.

There will be a further change: the weightingfor nitrogen-fixing crops is to be increased from0.3 to 0.7. The Commission intends a furtherImplementing Regulation to cover that point but attime of writing it has not been published.

The effect of weighting will mean that farmersneed to beware that “5% of the arable area” willnot mean literally what it says. DEFRA hasconfirmed that “all the possible weightings” willbe applied. The principal Regulation gave thepossibility to apply only those which werenegative, so the ability to apply, for instance,a factor of 2 to hedges or 1.5 to field marginscan be taken as positive.A question of mappingThe list of available options is not as long asmight have been wished. The EU regulationspermit a wider range of landscape features,including, for example, ponds, field margins and

ditches to be taken into account. That that wouldbe so was apparent from Commissioner Cioloş’slaunch of the draft regulations in October 2011and his criticism of those who dismissed EFAs asthe reintroduction of set aside.

The issue is one of mapping. There is noregulatory obligation to map until 2018 and theintroduction of EFAs from 2015 was always goingto bring this into sharp focus. Farmers whochoose to take up the option of including hedgeswill be encouraged to submit claims earlierand may be paid later than others, accordingto Mr. Paterson.

He said that the Commission is being pressedto clarify the extent of flexibility to add additionalEFA options in the future which, if approved, maywell happen in England.Diversification crop typesThe first list for England of crop types for thepurposes of diversification has also beenproduced by DEFRA. Again, you probably will notneed reminding that farmers with more than 10haof arable land will need to grow at least two cropsand those with more than 30ha at least three.

It has been known for some time that winterand spring varieties of the same crop will betreated separately although detail is awaited onexactly how the difference will be determined,especially as regards varieties that areinterchangeable. This new list identifies someadditional categories.

There are traps. A “crop” in the EU regulationsis taken as “a culture of any of the differentgenera in the botanical classification of crops” or“a culture of any of the species in the case ofBrassicaceae, Solanaceae, and Cucurbitaceae”,as well as land lying fallow and grasses or otherherbaceous forage.4 Thus field beans, broadbeans and tic beans are a single crop, as areFrench beans, green beans, haricot beans andrunner beans, but each of those groups is distinctfrom the other.

The vexed question of brassicas does notappear on the current list. It has been notedpreviously that cauliflower, cabbage and broccoliare all of the same genus and may therefore allbe the same crop for these purposes. Thatconundrum and others are the subject of thecomment that “This is not an exhaustive list –more examples will be added over the summer”.


European FocusEuropean FocusCross complianceThe changes to cross compliance have alsobeen addressed by DEFRA. Certain changesare precipitated by the EU regulations themselvesand are not susceptible to local discretion. Othersare the result of DEFRA following its intention toreduce the burden of compliance where possible.

At EU level, the requirement to controlinjurious weeds will be removed from crosscompliance, while there will be an option forMember States to retain obligations in respectof invasive species. DEFRA is not proposing toretain either on the basis that control is in thefarmer’s own interests and that the Weeds Actwill continue to provide a duty in respect ofinjurious weeds.

GAEC obligations in respect of land not inagricultural production will also disappear underEU provisions. However, under similar authorityprohibition of hedge-trimming will be prolongeduntil the end of August.

Following discussions by DEFRA and theRPA with stakeholders, the requirement for thepreparation of a Soil Protection Review will goand be replaced with an outcome-based optionbased on prescribed minimum standards forsoil management. Details will be published indue course.

On the negative side, new obligations willarise in respect of earth and stone banks wherethey exist as boundary features, to preserve theircultural and environmental benefits and to ensurethat all farmers are treated equally no matterwhat boundary features are on their land. Theexemption permitting removal of stone from stonewalls in order to repair footpaths will also beremoved to preserve the heritage andenvironmental benefits of such features.

A proposal is aired for the addition of crosscompliance obligations for High ImportanceNationally Important Monuments (HINIMs) to runalongside those for scheduled monuments, whichwill be retained. This requirement will not beintroduced immediately “due to insufficientevidence to show that current Agri-EnvironmentSchemes do not protect these features” but theposition will be kept under review.

Along with the formal announcements hascome a guidance note, Greening: Work out whatit means for you.5 This is a useful step-by-stepguide for farmers to assess how cropdiversification and EFAs might apply in their caseand, if so, how to comply.Some Scottish decisionsIn dramatic contrast to DEFRA’s positive recordon decision-making with regard to new scheme,the Scottish Government has been remarkably

quiet since the final terms of the post-2014 CAPprogramme were settled at the end of 2013.However, it has now announced a series ofdecisions.

Unlike England, Scotland needs to arrange afresh allocation of entitlements under the BasicPayment Scheme (BPS) as well as a transitionfrom the current historical basis of payment to anarea basis.

Whilst new entrants in particular have arguedfor that to apply from the outset, the ScottishGovernment has decided on a transitional periodfor convergence of payment rates from the 2015to 2019 scheme years.

However, a part of the National Reserve willbe made available to allow those disadvantagedonto the regional level of payment from the first.

In addition, there will be a package withinPillar 2 support for new entrants with grants ofup to €70,000.

Scottish members will need no reminding ofthe national enthusiasm to ensure that paymentis made only to those “who wear dirty wellies notcomfy slippers”.6

It is no surprise therefore that land withno farming activity will not be eligible to matchagainst Scottish entitlements. The ScottishGovernment estimates that will take some600,000ha out of eligibility.

It is only mildly unexpected, furthermore, thatsporting estates will be added to the ‘activefarmer’ negative list, i.e. those who are primafacie treated as ineligible and who will have todemonstrate adequate levels of farming activityin order to sustain their claims.Three payment regionsScotland will be divided into three regions forpayment purposes, categorised according to landclassification. The particular concern is with roughgrazing areas, of which two will be created withdifferent payment terms.

In those areas currently defined as non-LFA(Less Favoured Area) or as LFASS categories B,C and D, payments will be of the order of €35/ha(including the greening element); in LFASScategory A – the poorest land – payment will bearound €10/ha including greening, but there will

be a coupled top-up for sheep of around€25/ewe, subject to the agreement of the otherregions of the UK. Stocking density stipulationsare likely to apply on the “land with the greatestrisk of inactivity”.

There is clearly a lot of detail to be broughtinto these provisions, but at least one can nowsee them in slightly less vague terms than before.

Capping will be introduced, not from theoutset but at a point during the transition to areapayments, so that no recipient will receive morethan around £400,000 per year.

The Scottish Beef Calf scheme is the onlycurrent example of a coupled payment schemein the UK, and that will continue under the BPS.The payment pattern will, however, change, witha double payment to be made for the first 10calves and additional top-ups for the islandsof about €65/calf.

The provisions relating to EFAs will largelymirror the English, discussed above, but with abroader category of field margins than simplyhedges.

Slow progressProgress is being made but it is slow. Theauthorities are aware of farmers’ needs forcertainty and that time is running on, but havebeen hampered until now by the absence of acomplete framework. This promises to be anunusually busy summer on the agriculturalprofessional scene.

1 See OJ L181, 20.6.142 The text of all the primary and secondary

regulations currently published are availablefrom the ALA website at www.ala.org.uk/cap-reform

3 See, again, www.ala.org.uk/cap-reform4 Regulation 1307/2013, art.44(4)5 Available from www.gov.uk/government/

publications/cap-reform-greening-work-out-what-it-means-for-you

6 Cabinet Secretary Richard Lochhead’s wordsin announcing the decisions

The authorities are aware of farmers’needs for certainty and that time isrunning on, but have been hampered bythe absence of a complete framework

“”


BREAK NOTICESBeware of the pitfallsand trapsLisa Barge, Eversheds LLP, Birmingham

Despite break rights being a commonfeature of many tenancy agreements,validly exercising these rights continues

to cause landlords and tenants significant issues.Break clauses and notices have been the subjectof considerable judicial comment which hasresulted in an area of law full of potential pitfallsand traps. Adding those issues to the oddities tobe considered in agricultural tenancies creates aminefield for the unwary landlord or tenant whenwanting to exercise a break option.The basicsBreak options will almost always require serviceof a written notice by one party on another.This appears relatively simple, however non-compliance with these basic requirements causesmany break notices to fail.

In Mannai Investment Co Ltd v Eagle Star LifeAssurance Co Ltd,1 the House of Lords adopted amore relaxed approach than had previously beentaken to errors in the drafting of notices. As aresult of this case, an objective test is now used.A break notice containing errors can still be validprovided the reasonable recipient would not bemisled by the error. Notwithstanding this, due tothe consequences associated with losing a breakright, and the continuing judicial interpretation ofwhat would mislead a reasonable recipient, it isessential that notices are drafted accurately andvalidly served in accordance with the serviceprovisions contained in the lease.Identity of the parties A break notice must be served by the right party,on the right party. When preparing a notice,a tenant must consider the identity of theircurrent landlord as the original landlord mayhave transferred its interest. If this has occurred,and the landlord’s interest is registrable, be awareof the ‘registration gap’. The legal estate willnot vest in the new landlord until registrationis completed. In such situations, the cautiousapproach is to serve a notice on the old andnew landlord.

When a landlord is serving a break notice,they also need to check that a tenant has notassigned its interest in the lease. In addition,it is important to consider inter-grouparrangements as the party in occupationof the premises may not be the tenant.

If there are joint parties under a lease, thebreak notice must be served on or by both ofthem. Further, some break rights are expressedto be personal. A personal break right will notautomatically pass to a new landlord or tenantwhen a proprietary interest is transferred.Time for serviceDeadlines in a break clause should be strictlycomplied with. The most important date to identifyis the date by which the break notice must beserved. This is less of a concern if there is a‘rolling break’ that can be exercised at any time.The deadline for service will also differ if thenotice is required to expire on a certain dayinstead of giving the required amount of noticeby a certain day. If there is more than oneinterpretation of the notice period required thenit is prudent to serve more than one notice, orto serve the notice sufficiently early to cover allpossibilities. One day out and the break will fail,and the Mannai case cannot ‘save’ that sortof error.Break pre-conditionsIn addition to ensuring a break notice is draftedand served correctly, it is essential that all pre-conditions set out in a lease are fully compliedwith. Despite the more relaxed approach takenin Mannai in regard to drafting errors, the Houseof Lords stressed in this case that mandatoryrequirements in a break clause – for example aspecific provision as to the colour of paper anotice is on – must be complied with.

The Code for Leasing Business Premises inEngland and Wales 20072 recommends that “theonly pre-conditions to tenants exercising anybreak clauses should be that they are up to datewith the main rent, give up occupation and leavebehind no continuing subleases”.

However, other pre-conditions are oftenattached to break clauses. Some break options

go as far as to require full compliance with allleasehold covenants. Such a pre-condition isbecoming rare and should be strongly resistedas it is near impossible to comply with andtherefore often renders a break right worthless.More common pre-conditions are payment ofrent and vacant possession.

Payments are up to dateThis requirement is usually interpreted asmeaning the tenant must be up to date with itspayments on the break date. What paymentsare required for a valid break depends on thewording of the lease. It may be limited to theannual rent or could include other monies suchas interest, service charge and insurancepayments. A tenant’s duty under this pre-condition will continue up to the break date.Therefore, be prepared for the landlord tomake a last minute demand for monies ora last day rent review.

In Avocet Industrial Estates LLP v Merol andanother,3 the High Court held that a tenant’sbreak was invalid as it had failed to pay defaultinterest amounting to £130. The break clausestated that a break notice would have no effectif any payments due under the lease wereoutstanding at the break date. This decisionhas been recognised as harsh, however ithighlights the importance for a tenant to identifywhat monies are due and to identify anyoutstanding payments. If possible, get writtenconfirmation from the landlord that all sums duehave been demanded and payment received.

Payments due must not be apportionedunless the lease clearly allows for this. If thebreak date falls between two quarter days, therent for the full final quarter will be payable. Ifa lease does not contain a provision requiringrepayment of overpaid rent, it has generally been

Tenants must be up to date withpayments on the break date but whatpayments are required for a valid breakdepends on the wording of the lease

“”


accepted that a tenant will not be entitled toa refund.

However, in Marks and Spencer Plc v BNPParibas Securities Services Trust Company(Jersey) Ltd,4 a more tenant friendly approachwas adopted by the High Court who implied aterm into the lease entitling Marks and Spencerto be refunded their overpayment. The Court ofAppeal5 recently disagreed and has endorsedwhat has always been the accepted position.

Tenants should therefore continue to requirean express provision regarding repayment as partof the break provisions. However, even with thatwording, unless there is express provision forapportionment, most practitioners stillrecommend payment in full of the wholequarter’s rent, in the first instance.Vacant possessionThis pre-condition not only requires a tenant andany sub-tenants to vacate the premises, but alsorequires that there be no other impediment to useby the landlord, for example significant quantitiesof tenant goods left on the premises.

In the case of NYK Logistics (UK) Limited vIbrend Estates BV,6 the tenant asked workmen tostay on site after the break date to protect the siteagainst vandalism and to continue to overseeworks. The Court recognised that the workmenwould have left the site immediately if asked to doso by the landlord. The Court also acknowledgedthat this was reasonable and sensible and ofbenefit to both parties. However, the Court heldthat the tenant had not given vacant possessionwhich prevented the operation of the break.This resulted in the tenant being liable for rentin excess of £200,000. The agricultural regimeThe protection offered by the AgriculturalHoldings Act 1986 (the 1986 Act) and theAgricultural Tenancies Act 1995 (the 1995 Act)

create additional complications in relation tobreak notices. Tenancies protected by the 1986 Act Subject to a number of exceptions, even whenthe tenancy specifies otherwise, s.25(1) of the1986 Act requires all notices to quit (whether theybe given by landlords or tenants) to give at least12 months’ notice and expire at the end of aperiod of the tenancy.

Key exceptions include, amongst others,where:l there is a break option allowing the landlord to

resume possession of part only for a non-agricultural purpose;

l the tenant serves a notice to quit after astatutory rent review; and

l where a bad husbandry certificate is issued.In addition – and this is often overlooked – it maybe necessary for the landlord to prove one of the‘Cases’ set out in sch.3 to the 1986 Act. Where asuitable Case is set out in the notice to quit, whilethe tenant can in some cases call for arbitrationto decide if the criteria of the Case are met, thelandlord can (in general terms) recoverpossession on expiry of the notice to quit(the termination date can in some cases bepostponed).

An example of a much used Case is CaseB – which can be used for instance where thelandlord has a planning permission over thetenancy land and intends to use it for a non-agricultural purpose.

Alternatively, following a ‘standard’ notice toquit, which does not rely on a Case, if the tenantserves a counter notice within one month, thelandlord needs to apply to the First Tier Tribunalto save the notice to quit. In order to recoverpossession, the landlord would then need toprove one of the grounds under s.27 of the 1986Act and the tribunal must be satisfied that in all

the circumstances it appears to them that a fairand reasonable landlord would insist onpossession. Again, the tribunal has the option topostpone the operation of the notice to quit for aperiod of time.

Whether reliant a Case or a ground, the noticeto quit will not take effect whilst an application toan arbitrator or to the FFT is pending.Farm Business Tenancies Life is simpler under the 1995 Act regime, whichcreates Farm Business tenancies (or FBTs). AnFBT which is for a fixed term of two years or less,can be terminated solely by reference to itscontractual provisions (e.g. a break clause)and the general law mentioned above.

Equally, weekly, monthly and quarterlyperiodic tenancies are determinable inaccordance with common law principles.

However, break clauses specifically requiringless than 12 months’ notice in FBTs for a term ofmore than two years will be unenforceable. Thenotice must be in writing and be given at least 12months before the break date. Therefore, aclause which requires “at least” 6 months’ noticewill work (it’s just that at least 12 months’ notice isneeded), but one requiring exactly six months’notice will not. ConclusionCaution is indeed needed when seeking toexercise a break option, whether you are oract for the landlord or the tenant. If there is anydoubt at all, you should take a cautious approachand formal legal advice is key.

1 [1997] UKHL 192 Developed by property

professionals and industry bodies: seewww.leasingbusinesspremises.co.uk

3 [2011] EWHC 3422 (Ch)4 [2013] EWHC 1279 (Ch)5 [2014] EWCA Civ 6036 [2011] EWCA Civ 683

Break NoticesBreak NoticesGiving vacant

possessionrequires that therebe no impedimentto use by thelandlord

“

”


Readers will no doubt be familiar withthe background to the case of Salvesenv Riddell.1 The Agricultural Holdings

(Scotland) Act 2003 s.72 provided that, where aLimited Partnership is dissolved by the limitedpartner and, as a result, a tenancy under theeponymous 1991 Act held by that partnershipcomes to an end, the general partner can claimthe tenancy in his own right. If he does so, thelandlord may terminate the tenancy at the endof three years (or later, if the landlord choosesto let the tenancy continue) by serving the twonotices required by s.73.

However, where the limited partner tookaction to dissolve the partnership between16th September 2002 and 30th June 2003, thelandlord was given the benefit of s.73 only wherehe obtained an Order from the Land Court thatthe dissolution notice was issued otherwise thanto deprive the general partner of rights accruingto him under s.72. If the landlord failed to obtainsuch an order the lease became a 1991 Acttenancy with all the implications of security oftenure, succession and statutory regulation.The Supreme Court’s judgementThe Supreme Court, however, held that theexception was a breach of the landlord’s propertyrights under the European Convention on HumanRights (ECHR) in that it discriminated againstlandlords whose partnerships were terminatedby notices given before 1st July 2003 (whocannot invoke s.73 to terminate the tenancies)

as against those where the limited partnerships(and hence the tenancies) were brought to anend by actions taken on or after that date towhom s.73 is available.

The provision was held to be outwith thelegislative competence of the Scottish Parliament.The Court’s judgement was suspended for 12months to allow the defect to be corrected andfor the correction to take effect.The Remedial Order and itsconsequencesThe Scottish Parliament has legislated to remedythe defect by way of the Agricultural Holdings(Scotland) Act 2003 Remedial Order 2014.2 TheOrder was laid before Parliament earlier this yearand feedback from stakeholders requested by7th February 2014. The consultation period hassince ended and the Order came into force on3rd April 2014.

The approach which the Scottish Governmentadopted was to identify five categories of caseswhich in one way or another have been or arelikely to be affected by the defect in s.72identified by the Supreme Court. These are:Category 1 is where notices of dissolution of

limited partnerships served before 1st July2003 have yet to expire.

In these cases, the landlord will have theright, if the tenancy is claimed by the generalpartner, to bring it to an end by following thedouble notice procedure set out in s.73.However, if the partnership terminated

between 6th March and 3rd April 2014, andthe tenant gave notice claiming the tenancywithin 28 days prior to the Order coming intoforce, the landlord has the option of applyingto the Land Court to decide when he shouldrecover possession.

Category 2 is where a former general partnerhas already successfully claimed a 1991 Acttenancy.

The landlord may convert the 1991 Acttenancy to one which can be terminated unders.73 by serving the tenant with “an ApplicationNotice” between 28th November 2014 and28th November 2015. Described as a “coolingoff period”, this was unsuccessfully challengedin the consultation process on the ground thatthe delay is itself discriminatory against, andconsequently contrary to the human rights of,landlords in the category. If the landlord doesnot serve an Application Notice between thosedates, perhaps because he is content with thestatus quo, the tenant’s 1991 Act tenancy willbe preserved.

In the case of Category 2, the ScottishGovernment rejected representations that theresult should be a 25 year Limited DurationTenancy rather than applying s.73 and thatthe requirement on landlords (whose ECHRrights had already been compromised by thedefect) to seek further action by having to optin to resolve the situation might of itself by afurther ECHR breach.

Category 3 is where an application by a landlordto the Land Court for declarator that thepartnership dissolution notice was served for areason other than to deprive the formergeneral partner of his rights is sisted.

Such cases will be moved to the s.73regime if the application to the Court iswithdrawn or if the Court is asked to decidewhether or not another termination date wouldbe more appropriate. There are two options inCategory 3.

SCOTTISH PERSPECTIVESalvesen v Riddellresolved? Adèle Nicol and Alasdair Fox, Anderson Strathern, Edinburgh


Scottish PerspectiveScottish PerspectiveFirst, the parties can agree to remove the

case from the Court in which event thetenancy becomes terminable under theprovisions of s.73 (by giving the appropriatedouble notices). The second option is for theapplication to remain with the Court which isasked to dispose of it in such a manner as theCourt considers reasonable. This cannothowever include the grant of a 1991 Acttenancy.

A Category 4 case arises where the originallandlord who acquiesced in or capitulated tothe tenant’s claim for a 1991 Act Tenancy hassold the land either to the tenant under a pre-emptive right to buy or by agreement, or to anew landlord on the open market.

The Order does not apply to Group 4cases but the Government recognises thatindividuals in this group may feel they havecompensation claims against it.

Category 5 cases arise where a bilateralagreement was reached between the tenantand the landlord when the option ofchallenging the legislation was available.

The Government considers sucharrangements to have moved beyond thelegislative defect and therefore the Ordergives no remedies one way or another tothose in Category 5, although as withCategory 4 the Government does recognisethere may be the possibility that it facescompensation claims.

Guidance in ‘plain English’The Scottish Government recently followed upthe Order by issuing its “Plain English” guide tothe Order – The Changes and Options3 – whichis designed to help anyone who was served withor a served a notice of dissolution of a limitedpartnership during the period between 16thSeptember 2002 until 30th June 2003 tounderstand the change in legislation and the

options open to them. The Guide containsseveral grammatical errors!MediationThe Government is keen to promote mediationbetween tenants and landlords and mediation isbeing offered to those in Categories 2 and 3 as apriority and will be considered for those in othergroups on a case by case basis.

The aim of mediation is to explore all possibleavenues for reconciliation. Mediation is notcompulsory and, if either tenant or landlord doesnot wish to enter into mediation, the Governmentwill consider each situation case by case.

Detailed guidance on mediation procedureswill be forthccoming but in the meantime anyoneinterested in exploring mediation may obtainfurther information from:David Balharry, Remedial Order 2014,

D Spur, Saughton House, BroomhouseDrive, Edinburgh EH11 3XD

email – [email protected] – 07786 190912

Right to BuyThe Scottish Government has renewed itsassurance that if an absolute right to buy isintroduced under the current review of agriculturaltenancies it will not apply to continuing limitedpartnerships in any of the categories or to a 1991 Act tenancy retained in Group 2. Time BarThe Government has given an assurance toGroups 1 to 3 that for the purposes of a claimagainst it will not take time bar, if it arises, as

running between the period from the start ofmediation until the end of that mediation or 28thNovember 2015, whichever is the earlier.

The Scottish Government has stated theRemedial Order is estimated to apply to less than25 cases. That may well be the case butundoubtedly the issues arising from Salvesen vRiddell have been the subject of very high profilediscussion in the industry.

It may be the case that within Categories 1to 3 the numbers are limited but what is perhapsless easy to quantify are those in Categories 4and 5; namely, landlords and tenants who havetaken irreversible steps to put themselves in aposition which they would not otherwise havedone had they not considered they were boundby s.72 as originally drafted.

There may well be landlords who havedisposed of their interest on the basis theywere unlikely to secure vacant possession orconversely tenants who assumed they benefitedfrom a secure 1991 Act Tenancy and have madefinancial and family commitments which theymight not otherwise have done.

The case has been a lesson to the dangersof anticipating the format of legislation when it isstill in draft form and, from the point of view oflegislators, the dangers of making ad hocamendments to draft legislation on the basis ofspeculation of how that legislation will be applied.

1 Court of Session [2012] CSIH 26;Supreme Court [2013] UK SC22

2 SSI2014/983 See www.scotland.gov.uk/Resource/0044/

00449977.docx

The case warnslegislators againstmaking changes todraft legislation onspeculation of howthat legislation willbe applied

“

”


Live & LearnALA Student/Training SectionLive&LearnFixtures and fittings andagricultural tenancies Philip Day, Wilkin Chapman LLP, Louth

Issues often arise both during the continuanceand at the end of a tenancy as to what arefixtures and fittings and what are chattels on

the holding and how they are to be dealt with.The common law rules relating to fixtures andfittings have been modified by both theAgricultural Holdings Act 1986 (the 1986 Act)and by the Agricultural Tenancies Act 1995 (the1995 Act).Fixture or chattelFirst, however, it is necessary to distinguishbetween what is a fixture and what is a chattel.A chattel will, in the case of a tenancy, alwaysremain the property of the tenant and will beremovable by the tenant at the end of thetenancy without any restriction whatsoever.

The starting point with regard to fixtures atcommon law was that whatever was attachedto the land became part of the land1 and thus atthe end of the tenancy became the landlord’sproperty. In each case whether there has beensufficient annexation to the land will be a matterof fact.

A test based purely on annexation to the landcould have harsh results for a tenant who hadbeen in occupation for many years and hadexpended substantial sums on the holding.

As a result of this a further test has evolvedwhereby when considering the annexationall of the circumstances are to be taken intoaccount and the position now, in what can beconsidered a second test, is that if a tenantinstalls an item which becomes a fixture hecan remove it if (a) it has been attached for thepurposes of his trade and (b) it can be removedwithout causing substantial damage to thepremises and without losing its essential utility.Annexation of itself, therefore, is not conclusive indetermining whether an item is a fixture ora chattel.

In summary there are now two tests, namely,first, the degree of annexation and, secondly, thepurpose of annexation. In Berkley v Poullett 2 itwas held that annexation, which in earlier timesthe law would have treated as conclusive, may

now prove nothing. Today so great are thetechnical skills of affixing and removing objects toand from land that the second test is more likelythan the first to be decisive.

Changing lawThe intention of the parties as to what is a chatteland what is a fixture is only one material factor.An example of this can be seen in the case ofTSB Bank v Botham.3 Although this related to aresidential property the decision of the courtshows that the intention of the parties will notoverride the applicable law.

In that case it was held that fitted carpets,light fittings, gas fires, curtains, bathroom fittings,kitchen units and white goods were fixtures andso passed to a mortgagee taking possessionof the dwelling.

How then has the common law rule that afixture becomes the property of the landlord atthe end of the tenancy been modified by thestatutory provisions?

Tenant’s right to removeIn respect of the 1986 Act this is governedby s.10. By that provision and subject to certainexceptions a tenant may remove any engine,machinery, fencing or other fixture (of whateverdescription) affixed whether for the purposes ofagriculture or not to an agricultural holding bythe tenant and any building erected by him onthe holding.

The right to remove is exercisable at any timeduring the term of the tenancy or before theexpiry of two months from the termination of thetenancy. That right to remove shall not be


Live & LearnLive & Learnexercisable in relation to a fixture or buildingunless the tenant has satisfied two conditions.

First, the tenant must have paid all rent owingby him and performed or satisfied all his otherobligations under the tenancy and, secondly, hemust at least one month before both the exerciseof the right and the termination of the tenancyhave given to the landlord notice in writing of hisintention to remove the fixture or building.

If before the expiry of the notice given by thetenant the landlord gives the tenant a counter-notice in writing then the landlord has the right topurchase a fixture or building comprised in thenotice subject to the landlord paying to the tenantthe fair value of that fixture or building to anincoming tenant of the holding. If that fair valuecannot be agreed then the value can bedetermined by arbitration.

If the tenant gives notice and exercises theright to remove a fixture or building then thetenant shall not do any avoidable damage to anyother building or other part of the holding andshall make good all damage that is occasionedby the removal immediately after such removal.

There are several exemptions to a tenant’sright to remove a fixture or building and they areas follows:l A fixture affixed or a building erected in

pursuance of some obligation. This could, forexample, include an obligation in the originalTenancy Agreement.

l A fixture affixed or a building erected insteadof a fixture or building belonging to thelandlord. That will apply to replacements.

l A building for which the tenant is entitled toclaim compensation whether under the 1986Act or otherwise. For example, the tenant mayhave applied to the landlord for consent to animprovement by erecting a new building onthe holding. At the end of the tenancy thetenant will be entitled to claim compensationfor improvements and thus will not be entitledto remove the building. Note that thisprovision only relates to buildings and not toother fixtures on the holding.

l A fixture affixed or a building erected before1st January 1884. In practice it is doubtedwhether this will be of any significance!

l A fixture or building acquired by the tenantbefore 1st January 1901. Again, it is notanticipated that this will be seen in practice!

If, having satisfied the two conditions for theexercise of the right previously referred to, thetenant does not remove the fixture or buildingwithin two months from the termination of thetenancy then it ceases to be the tenant’s propertyand becomes the property of the landlord.

Furthermore it would follow that if a tenantremoves a fixture or building without complyingwith the conditions he will not receive thestatutory protection contained in s.10 and thelandlord will remain the owner of the fixture orbuilding and can sue the tenant for its return.Differences for FBTsWhat is the position under the 1995 Act? Thereare differences between the 1995 Act and the1986 Act. The statutory provision is containedin s.8 of the 1995 Act.

It should be noted that by s.8(7) no right toremove fixtures that subsists otherwise than byvirtue of s.8 shall be exercisable by the tenantunder a Farm Business Tenancy. The effect ofthis is that the common law rules in respect ofremoval of fixtures such as trade fixtures do notapply in respect of a Farm Business Tenancy.There is no similar provision to s.8(7) in the1986 Act.

What then is the general position? This isgoverned by s.8(1) which provides that subject tocertain exceptions any fixture (of whateverdescription) affixed, whether for the purposes ofagriculture or not, to the holding by the tenantunder a Farm Business Tenancy, and anybuilding erected by him on the holding, may beremoved by the tenant at any time during thecontinuance of the tenancy or at any time afterthe termination of the tenancy when he remainsin possession as tenant (whether or not under anew tenancy), and shall remain his property solong as he may remove it by virtue of this section.

It will be noted that there is no reference hereto the period of two months which under the 1986Act the tenant has for the removal of any fixtureor building. The right subsists so long as thetenant remains in possession as tenant.

For example, if a tenant holds over after afixed term tenancy where no notice to determinehas been given, he will be holding over as tenantand will still be able to exercise the right unders.8. It would appear, however, that where atenant remains in occupation after the expirationof a notice to quit or forfeiture he will not be inpossession as a tenant and therefore will nothave the right contained in s.8.

The right of removal applies not only to afixture or building affixed or erected by the tenantbut also to a fixture or building acquired by thetenant at the commencement of the tenancy.

The exceptions to s.8(1) are:l It does not apply to a fixture affixed or a

building erected in pursuance of someobligation, however that obligation may arise.This mirrors the provision in the 1986 Act.

l It does not apply to a fixture affixed or abuilding erected instead of some fixture orbuilding belonging to the landlord. This is asimilar replacement provision to the 1986 Act.

l It does not apply to a fixture or building inrespect of which the tenant has obtainedcompensation under s.16 of the 1995 Actor otherwise.

l It does not apply to a fixture or building inrespect of which the landlord has given hisconsent under s.17 of the 1995 Act on

Annexation of itself is not conclusivein determining whether an item is afixture or a chattel“

”

BRUSSELS UPDATE to 31st May 2014Directive 2014/36 of the European Parliamentand of the Council on the conditions of entryand stay of third-country nationals for the purposeof employment as seasonal workers

Council Decision 2014/143 on the position to betaken on behalf of the European Union within theJoint Committee on Agriculture set up by theAgreement between the European Communityand the Swiss Confederation on trade inagricultural products, as regards the amendmentof Decision 2/2003 of that Committee

Commission Directive 2014/43 amendingAnnexes I, II and III to Directive 2000/25 of theEuropean Parliament and of the Council on actionto be taken against the emission of gaseous andparticulate pollutants by engines intended topower agricultural or forestry tractors

Commission Directive 2014/44 amendingAnnexes I, II and III to Directive 2003/37 of theEuropean Parliament and of the Council on type-approval of agricultural or forestry tractors, theirtrailers and interchangeable towed machinery,together with their systems, components andseparate technical units

Commission Implementing Decision 2014/175amending Decision 2007/777 as regards theimportation of meat products, treated stomachs,bladders and intestines prepared from fresh meat

relating to the fruit and vegetables and processedfruit and vegetables sectors

Commission Delegated Regulation 500/2014supplementing Regulation 1308/2013 of theEuropean Parliament and of the Council byamending Commission Regulation 288/2009 asregards the granting of aid for accompanyingmeasures in the framework of a School Fruit andVegetables Scheme

Commission Delegated Regulation 501/2014supplementing Regulation 1308/2013 of theEuropean Parliament and of the Council byamending Commission Regulation 826/2008 asregards certain requirements related to theagricultural products benefiting from privatestorage aid

Commission Delegated Regulation 502/2014supplementing Council Regulation 73/2009 andRegulation 1307/2013 of the EuropeanParliament and of the Council as regards thebasis of calculation for reductions to be applied tofarmers by Member States due to the linearreduction of payments in 2014 and financialdiscipline for calendar year 2014

Commission Implementing Regulation215/2014 laying down rules for implementingRegulation 1303/2013 of the EuropeanParliament and of the Council laying down

of domestic poultry, including meat of farmed andwild game birds

Commission Implementing Decision 2014/191on excluding from European Union financingcertain expenditure incurred by the MemberStates under the Guarantee Section of theEuropean Agricultural Guidance and GuaranteeFund (EAGGF), under the European AgriculturalGuarantee Fund (EAGF) and under the EuropeanAgricultural Fund for Rural Development(EAFRD)

Commission Delegated Regulation 480/2014supplementing Regulation 1303/2013 of theEuropean Parliament and of the Council layingdown common provisions on the EuropeanRegional Development Fund, the EuropeanSocial Fund, the Cohesion Fund, the EuropeanAgricultural Fund for Rural Development and theEuropean Maritime and Fisheries Fund andlaying down general provisions on the EuropeanRegional Development Fund, the EuropeanSocial Fund, the Cohesion Fund and theEuropean Maritime and Fisheries Fund

Commission Delegated Regulation 499/2014supplementing Regulations 1308/2013 of theEuropean Parliament and of the Council andRegulation 1306/2013 of the EuropeanParliament and of the Council by amendingCommission Implementing Regulation 543/2011

18 ALA Bulletin – Winter 2011/12ALA Bulletin – Summer 2014

Live & LearnLive & Learncondition that the tenant agrees not toremove it and which the tenant has agreednot to remove.

It will be seen that the last two of thoseexceptions whereby a tenant cannot remove afixture or building relate to a situation where thetenant is entitled to compensation under s.16 ors.17 of the 1995 Act.

Tenant’s improvementsA fixture or building may be a tenant’simprovement within the definition containedin s.15 of the 1995 Act. It is any physicalimprovement which is made on the holdingby the tenant by his own effort or wholly orpartly at his own expense.

A landlord and tenant can now agree themaximum level of compensation which will bepaid to a tenant at the end of the tenancy for hisimprovements.

Prior to the coming in force of the RegulatoryReform (Agricultural Tenancies) (England &Wales) Order 2006 on 19th October 2006 it wasnot so possible to fix an upper limit of thecompensation. If a tenant applied for consent tomake improvements, a landlord prior to the 19thOctober 2006 had no way of determining inadvance what the compensation would be at theend of the tenancy. This made landlords reluctantto give consent for improvements.

However this situation has now beenamended by the insertion of a new s.20(4A) inthe 1995 Act by the 2006 Order. This providesthat where the landlord and tenant have agreedin writing after the 19th October 2006 to limit theamount of compensation payable in respect ofany tenant’s improvement the amount shall bethe lesser of the amount determined inaccordance with sub-ss.(1) to (4) of s.20 or the“compensation limit”.

Sub-section (4B) of s.20 defines thecompensation limit as an amount agreed by theparties in writing or, where the parties are unableto agree on an amount, an amount equal to thecost to the tenant of making the improvement.

Consideration should therefore be givenwhenever dealing with a request forimprovements to be carried out by a tenant as towhether there should be included in the writtenconsent from the landlord a maximum amount ofcompensation which will be payable by thelandlord to the tenant at the termination of thetenancy.

The parties are completely free to agreewhatever that level should be.

1 Quicquid plantatur solo solo cedit2 (1976) 241 EG 9113 (1996) EGCS 149


SI2014/487 = Seeds and Vegetable PlantMaterial (Nomenclature Changes) Regulations2014 – amend SIs 1995/2652, 2001/3510 &2011/463 to implement Commission ImplementingDirective 2013/45 – 31st March 2014

SI2014/519(W61) = Seeds and Vegetable PlantMaterial (Nomenclature Changes) (Wales)Regulations 2014 – amend SIs 2012/245(W39)& 1995/2652 to implement CommissionImplementing Directive 2013/45 –31st March 2014

SI2014/538 = Wildlife and Countryside Act1981 (Prohibition on Sale etc. of Invasive Non-native Plants) (England) Order 2014 – adds

seven plants the dealing with which is an offence– England only – 6th April 2014

SI2014/564 = Town and Country Planning(General Permitted Development)(Amendment and Consequential Provisions)(England) Order 2014 – amends eponymousOrder of 1995 (SI1995/418 as amended) –England only – 6th April 2014

SI2014/632(W72) = Tuberculosis(Miscellaneous Amendments) (Wales) Order2014 – amends eponymous Orders of 2010(SI2010/1379(W122)) and 2011(SI2011/692(W104)) – 6th April 2014

SI2014/714 = Tuberculosis (England)(Amendment) Order 2014 – amends eponymousOrder of 2007 (SI2007/740) – art.2(8): 30th June2014; remainder: 6th April 2014

SI2014/951(W92) = Welfare of Animals at theTime of Killing (Wales) Regulations 2014 –administer and enforce Council Regulation1099/2009 on the protection of animals at thetime of killing and revoke SI1995/731 in Wales –20th May 2014

SI2014/979 = Plant Health (England)(Amendment) Order 2014 – amends eponymousOrder of 2005 (SI2005/2530) – art4: 1st June2014; remainder: 6th May 2014

Instruments with a Welsh reference (W...) apply to Wales only unless otherwise statedThe date stated is the date on which the Instrument comes into force

STATUTORY INSTRUMENTS to 31st May 2014

19

common provisions on the European RegionalDevelopment Fund, the European Social Fund,the Cohesion Fund, the European AgriculturalFund for Rural Development and the EuropeanMaritime and Fisheries Fund and laying downgeneral provisions on the European RegionalDevelopment Fund, the European Social Fund,the Cohesion Fund and the European Maritimeand Fisheries Fund with regard to methodologiesfor climate change support, the determination ofmilestones and targets in the performanceframework and the nomenclature of categories ofintervention for the European Structural andInvestment Funds

Commission Implementing Regulation265/2014 amending Regulation 642/2010 onrules of application (cereal sector import duties)for Council Regulation 1234/2007

Commission Implementing Regulation266/2014 on the division between deliveries anddirect sales of national milk quotas fixed for2013/2014 in Annex IX to Council Regulation1234/2007

Commission Implementing Regulation288/2014 laying down rules pursuant toRegulation 1303/2013 of the EuropeanParliament and of the Council laying downcommon provisions on the European RegionalDevelopment Fund, the European Social Fund,

the Cohesion Fund, the European AgriculturalFund for Rural Development and the EuropeanMaritime and Fisheries Fund and laying downgeneral provisions on the European RegionalDevelopment Fund, the European Social Fund,the Cohesion Fund and the European Maritimeand Fisheries Fund with regard to the model foroperational programmes under the Investment forgrowth and jobs goal and pursuant to Regulation1299/2013 of the European Parliament and of theCouncil on specific provisions for the supportfrom the European Regional Development Fundto the European territorial cooperation goal withregard to the model for cooperation programmesunder the European territorial cooperation goal

Commission Implementing Regulation320/2014 amending Annex VIII to CouncilRegulation 73/2009 establishing common rulesfor direct support schemes for farmers under thecommon agricultural policy

Commission Implementing Regulation340/2014 amending Regulation 1272/2009 asregards certain rules on public intervention inrespect of certain agricultural products, inaccordance with Regulation 1308/2013 of theEuropean Parliament and of the Council

Commission Implementing Regulation354/2014 amending and correcting Regulation889/2008 laying down detailed rules for the

implementation of Council Regulation 834/2007on organic production and labelling of organicproducts with regard to organic production,labelling and control

Regulation 96 of the Economic Commissionfor Europe of the United Nations (UN/ECE)containing uniform provisions concerning theapproval of compression ignition (C.I.) engines tobe installed in agricultural and forestry tractorsand in non-road mobile machinery with regard tothe emissions of pollutants by the engine

Decisions of the EEA Joint Committee 179-184& 213-221/2013 amending Annex I (Veterinaryand phytosanitary matters) to the EEA Agreement

Decisions of the EEA Joint Committee 207-209& 238/2013 amending Annex XX (Environment)to the EEA Agreement

See the following Official Journals forinformation regarding cases before the ECJ andother tribunals: C61 (1.3.14); C71 (8.3.14); C78(15.3.14); C85 (22.3.14); C93 (29.3.14); C102(7.4.14); C112 (14.4.14); C129 (28.4.14); C135(5.5.14); C142 (12.5.14); C151 (19.5.14); C159(26.5.14)

See the following Official Journals forinformation regarding cases before the EFTACourt: C81 (20.3.14); C88 (27.3.14); C121(24.4.14); C138 (8.5.14); C163 (28.5.14)

ALA SOUTh MIDLANDS23rd September 2014Mapledurham Estate, nr. ReadingALA SOUTh CENTRAL2nd October 2014Sparsholt College, WinchesterALA FELLOWShIP 201421st-23rd October & 5th/6th November 2014Scarman Conference Centre, Warwick UniversityExamination: 25th November 2014, LondonALA CONFERENCE: TRAPS FOR ThE UNWARy4th December 2014Copthorne Tara Hotel, Kensington

ALA AGM & ANNUAL DINNER 20156th March 2015Royal Over-Seas League, LondonALA STARTER FOR TEN 201514th-16th April 2015Mount Hotel, Tettenhall Wood, WolverhamptonALA/WS SOCIETy JOINT CONFERENCE5th June 2015Signet Library, Edinburgh

Details of all meetings are posted on the Events Calendaron the ALA website at www.ala.org.uk

Forthcoming events...

CAP: The nextinstalment(s)Those who came to our Spring series of CAP Conferences

around the country were loud in their praise of the contentand structure of the events and the quality of the speakers.

Our thanks go to all those who shared their expertise withus, in particular Christopher Price from CLA and JulieRobinson from Roythornes, who covered the miles throughoutEngland; TFA’s George Dunn who also covered Wales; andCAAV’s Jeremy Moody who not only did that but also led ourjoint presentation with SAAVA in Scotland.

You will have gathered from the article on Page 10 that theimplementation of the new CAP schemes is far from complete,and we plan to produce more Conferences as the positionbecomes clearer.

Timings are still being finalised and, whilst we may not beable to produce as many events as in the Spring, muchdepends on how matters proceed in each jurisdiction.

The focus, though, will be the same: through ALA’sunique position as a national cross-disciplinary professionalorganisation we shall give the broadest coverage to the legaland practical problems faced by our Members’ clients.

We shall be asking you, our Members, to let us know whatparticular issues you would wish us to cover and we willpresent those in advance to the panel, who will analyse themfrom their own professional perspectives.

You know that advice from a team of professionals isinevitably better than the sum of its parts. That is what youwill get from ALA.

Keep your eyes on your email inboxes and go towww.ala.org.uk/events-calendar for more information.

ALA’s nextmilestoneBack in the 1970s, in the aftermath of the UK’s entry into

the European Economic Community, lawyers from severalorganisations, including the Law Society and the Ministry ofAgriculture, made various overtures within Europe to enhancetheir knowledge and understanding of the law relating toagricultural and rural affairs in the light of the CommonAgricultural Policy, now to be applied anew in our country.From those overtures, at a meeting on 27th January 1975, theAgricultural Law Association was founded. (Those interested inknowing more should download the Bulletin of Winter 2004/05from www.ala.org.uk/ala-bulletin-2004.)

We shall be celebrating our 40th Anniversary during 2015,beginning with our AGM and Dinner on 6th March. We aredelighted that the Minister responsible for farming, GeorgeEustice MP, has agreed to be the guest speaker and we lookforward to seeing Members and their guests to enjoy what willbe a special occasion.

From the original cadre of dedicated specialists, ALA hasnow grown to a membership of more than 1,100 and maintainsits position as the country’s largest cross-professionalorganisation devoted to the interests of rural business. Lookout for events celebrating that achievement during 2015.

RURAL PROFESSIONALS

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