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Welcome to Expert Digest

We are pleased to welcome you to the ninth edition of Expert Digest which is focused on topical issues of interest to rural professionals’ principally agricultural, environmental and rural lawyers.

We are often asked what else you do apart from expert witness. In practice, quiet a lot and far too much to list in this brief newsletter. To address this I have decided to highlight two projects, outside of expert witness, which demonstrates our breadth of expertise, ranging from ‘Due Diligence Assessments’ to ‘Mitigation Methods’ to secure planning permission.

As always if you have any suggestions for topics that you would like addressed in the next issue please drop me a line, as it is always good to receive feedback, whether good, bad or indifferent, but hopefully the former.

Geoff Fairfoull, Editor geoffrey.fairfoull@adas.co.uk

The ADAS Group

The ADAS Group is the UK’s largest independent agricultural & environmental consultancy and provider of rural development and policy advice. ADAS provides independent science-based research, consultancy and contracting services to a wide range of organisations in both the private and public sectors, throughout the UK and internationally.

The business, which is a private sector organization, employs 450 staff on permanent or fixed-term contracts and draws on a further 200 people employed on contingent terms. Gross turnover is c. £38 million per annum.

The organisation was established over 60 years ago as the advisory and research arm of the Ministry of Agriculture, Fisheries and Food and branded as ADAS in 1971. The business was privatised in 1997 and to this day remains a preferred supplier to Governments and a wide range of enterprises in the public and private sectors, throughout the UK. We aim to continue in this position in the medium to long term building on our track record and understanding of our clients’ needs to grow our business.

Expert Digest

ISSUE 9 AUGUST 2015

Conflicts of Interest

With over 450 staff there is always the possibility that a conflict of interest may occur where ADAS or its consultants has an existing contractual or personal relationship with one or more of the parties involved in a dispute or legal proceedings.

To ensure that any actual or potential conflicts of interest are identified at the earliest opportunity we undertake an ‘Internal Clearing House Search’ which is received by all employees of ADAS.

This requires the instructing solicitor or solicitor’s (SJE instructions) to notify us of the parties to the case or proceedings. This information is circulated in a Global Email to all ADAS staff.

Any involvement with or knowledge of the parties is then flagged up and a decision taken to determine whether an actual or potential conflict of interest would arise if ADAS accepted instructions in the case.

During the last 12 months we undertook a total of 96 conflict of interest searches which resulted in identifying 3 potential conflicts of interest, whereby we had to decline instructions in these cases, this represents an average of 3% of all potential instructions and is therefore a low number of cases, but nevertheless significant in that we were able to identify at an early stage that a conflict of interest would arise if we were to accept instructions in these cases.

Where this does occur, albeit rarely, we notify the instructing solicitors and endeavour to assist them with identifying suitable alternative experts.

Expert Focus

Steve Peirson

Steve is our lead expert in odour analysis and emissions. Steve is a Chartered Engineer, Chartered Environmentalist and a Member of the Institute of Agricultural Engineers

Steve acts as in an expert witness capacity for both operators and statutory authorities undertaking odour analysis, emissions assessments, odour impact

assessments, odour nuisance assessments, environmental control and ‘Best Practicable Means’ assessments. Steve

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has extensive experience in both statutory and civil nuisance cases and planning appeals acting for appellants and planning authorities.

The case of Hirose Electrical -v- Peak Ingredients provides a good example of the effective use of expert opinion in a Civil Nuisance case. In this case ADAS were instructed on behalf of the Defendant’s.

Hirose Electrical (Claimant’s) vs Peak Ingredients (Defendant’s)

The Claimant’s Hirose Electrical had occupied a unit on an industrial estate in Milton Keynes since 1993. They imported and distributed (and may have manufactured) parts for mobile phones. The Unit included a warehouse area and offices and staff welfare facilities.

In 2002 the Defendants moved in to the next door unit and started manufacture of “spiced” flour products mainly for use on Southern Fried Chicken. There were initial disagreements about other matters (waste bins etc.), but the main issue was that the Claimant’s alleged that spicy odours penetrated the common wall between the units (single skin low density concrete block construction). As well as alleging smell nuisance the Claimant’s claimed that fumes had worsened the symptoms of asthma experienced by one of their warehousemen. Hirose Electrical had complained to the landlord but no real improvements were made. Initially the wall was very badly sealed, but Hirose Electrical took very little action themselves to improve matters.

The Claimant’s also complained to the local authority (Environmental Health re Statutory Nuisance) and the HSE (re health effects). Sampling had been carried out but there was no objective evidence of any harmful substances and medical evidence showed that the health problems pre-dated Peak Ingredients moving in.

Hirose Electrical ceased volume production in 2006 (so they had no need for the warehouse) and moved out in 2007 to smaller premises, breaking the terms of their original lease. Hirose Electrical’s case was that nuisance caused by Peak Ingredients had made them move out and they claimed damages from Peak Ingredients to pay their rent for the old unit up until the end of the lease.

Hirose Electrical employed an expert who had a background in H&S and workplace environment, and particularly dust control. He maintained that Peak Ingredients had not taken sufficient steps to control dust within their unit (e.g. not providing adequate dust capture and not testing their installed equipment in accordance with HSE legislation).

The Judge effectively had to decide if Peak Ingredients had caused nuisance.

Steve’s evidence was that some odours were detectable in parts of the (empty) Hirose Electrical unit (in a stairwell, the staff kitchen and toilet), but the odours were not detected, or indeed complained of, in the main offices and working areas. He maintained that these odours did not amount to a nuisance in the context of an industrial estate. The Judge specifically asked Steve in court if he believed there was a nuisance – a very

explicit example of the Judge asking for an opinion.

There was discussion of an agreed schedule to be drawn up by the experts to “seal” the wall and some preliminary work was done before the Judgement.

The Judge found in favour of the Defendant’s (Peak Ingredients) on the point that the odours experienced did not amount to a nuisance in the context of an industrial estate. A subsequent appeal by Hirose Electrical was dismissed by three Law Lords.

Key points from the Judgement:

For more information contact Steve at steve.peirson@adas.co.uk

BIAC (British Institute of Agricultural Consultants)

We are pleased to announce that ADAS Senior Consultant Geoff Fairfoull has recently been approved as a member of the British institute of Agricultural Consultants. Geoff is an equine specialist and experienced expert witness and has responsibility for the ADAS Expert Witness offer.

Geoff has joined the expert witness group of BIAC which provides opportunities to respond to requests that BIAC may receive for experts, and likewise, where ADAS does not have appropriate in house expertise we are able to help source suitable experts via BIAC.

Recent Cases

Tenancy Dispute

Geoff Fairfoull, Senior Equine Consultant was recently instructed as a SJE in a dispute between a landlord and tenant whereupon the tenant had to vacate the premises at short notice.

Geoff’s appointment was agreed by both parties and was instructed to prepare a valuation report on a range of stables, fixed equipment, and machinery and associated items commonly used in the operation of a livery enterprise. We are currently awaiting the Court’s decision on this case.

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Poultry Drinker Patent

Arnold Elson, Senior Poultry Consultant was recently instructed in a dispute over patent on a design of automatic water drinkers for poultry. Subsequent to Arnold’s involvement and expert investigation, analysis and report, the case settled out of Court in favour of our client (the Defendant). An excellent result.

ADAS consultants provide due diligence assessments across Europe

ADAS provide due diligence services for those investing overseas, providing independent assessment and specialist expertise of farming systems in arable, horticultural, livestock farming. ADAS has sixty years of experience working throughout the food supply chain, enabling us to provide trusted detailed assessments of farming systems anywhere in the world. Due diligence can be conducted against EU legislation, for those who wish to sell their products to the EU, or to alternative national and international standards.

Challenge

ADAS delivery has included due diligence assessment of animal welfare standards for livestock in both established and recently expanded food supply chain enterprises. We provide a critical and independent appraisal of the whole supply chain to ensure expected animal welfare standards are compliant with the standards of the European Union and are well managed throughout. Work has been carried out across countries in Eastern Europe including Ukraine, Azerbaijan, Turkey, Albania, and Bulgaria.

Approach

Once we have established the overall structure of the supply chain, our experts visited key sites to inspect and review all aspects of animal welfare. This included:

• Assessing the available space and quality of infrastructure on livestock farms

• Investigating the management standards of livestock husbandry

• Checking that environmental control in intensive pig and poultry units are working effectively and are well managed

• Reviewing procedures, backups and fail safe systems

• Reviewing general health, welfare and biosecurity standards

The assessment encompassed all farm sites and the transportation and handling through to processing facility.

Our visits included examination of production and processing site, as well as staff interviews and training reviews. We will can work with the staff to advise them in identifying the best way to achieve compliance where appropriate.

Outcome

Following our assessment, we present the funding body with one of three conclusions:

Non-compliance: The enterprise was found to be severely failing compliance in a number of areas and would require major works to achieve necessary improvements.

Partial-compliance: The enterprise met most of the conditions required and requires minor works to achieve compliance.

Compliance: The enterprise met all conditions to achieve compliance.

Additionally our reports identify any specific actions required by the enterprise to achieve compliance.

Our assessments are based on our own unrivalled technical credibility, delivering reassurance to our clients. The due diligence work we provide mitigates reputational risk, safeguarding shareholder confidence.

“ADAS provided exceptional advice on animal welfare and delivered report to time”

Stuart Clayton WSP Associate Consultant

For more information contact David at 01270 624619 or david.moorhouse@adas.co.uk

Custom built Bat-Barn alongside new housing development in Bracknell

Linden Homes, part of the Galliford Try Group, proposed the redevelopment of a former sawmill site for a housing development. ADAS worked with Linden Homes, archaeologists, demolition contractors, builders and a local wildlife site warden to ensure the development could proceed without a long term detrimental effect on the ecology of the Brown Long-eared Bats, Soprano and Common Pipistrelle Bats, nesting birds and Common Lizards found.

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Challenge

Linden Homes, part of the Galliford Try Group, proposed the redevelopment of a former sawmill site for a housing development. The site had a long history of ecological surveys undertaken by third parties and had significant interlinking constraints from archaeology, asbestos and contaminated land. Previous surveys identified multiple bat roosts on the site, however the surveys varied widely in quality and therefore results. In order to proceed with the project, Linden Homes needed advice right from the start, and consulted ADAS throughout the development.

Approach

ADAS carried out a complete suite of surveys across the proposed site. During these we identified Brown Long-eared Bats, Soprano and Common Pipistrelle Bats roosting in five buildings. Our ecologists also found nesting birds and a population of Common Lizard.

The exact nature and size of the bat roosts were identified through the survey work and ADAS agreed suitable mitigation in the form of the construction of a bespoke barn for bats onsite. As contaminated land, remediation works prior to construction would compromise the Common Lizard population, so ADAS also negotiated a suitable offsite receptor site to translocate reptiles to during development.

ADAS worked with Linden Homes, archaeologists, demolition contractors, builders and a local wildlife site warden to ensure the development could proceed without a long term detrimental effect on the ecology of the species found.

Outcome

Planning permission was granted for the erection of the bat barn prior to main site works taking place. The barn was erected and was found to support bats within the first two weeks of completion. Common Lizard were translocated offsite to the receptor wildlife site and ADAS worked closely with demolition contractors to exclude bats from the existing site buildings.

Linden Homes were able to start onsite with no further ecological constraints and with small residual impacts satisfied by simple additional site enhancements for wildlife resulting in a viable site to develop but also maximising benefits to wildlife. ADAS expert ecologists are continuing to monitor the project and to date the bat barn continues to show use by roosting bats.

“ADAS worked closely with our contractors offering pragmatic and effective mitigation for the ecology on site.”

Tony Chapman Senior Technical Co-ordinator, Linden Homes

For more information contact David Middleditch at 01954 268300 or david.middleditch@adas.co.uk

ADAS Expert Witness

Our expert witness capability extends to over 100 experts, operating in 80 specialist areas with membership of over 30

professional bodies. All our experts are experienced consultants who are actively practicing within their particular specialism. Our experts can therefore offer practical experience along with scientific rigour and independence to ensure that the best possible expert advice available.

For further information please visit our website or contact Geoff Fairfoull, ADAS UK Ltd, 11D Park House, Milton Park, Milton, Abingdon OX14 4RS Mobile: 07836 298 776 Email: geoffrey.fairfoull@adas.co.uk.

ADAS Website

The ADAS website provides information on the range of services offered by ADAS, examples of client projects and mews and views on topics that affect farming and the environment.

Check out the website at www.adas.uk and register your details to start receiving news updates directly to your inbox.

The next issue of Expert Digest will be available October 2015