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Post-Brexit farming is still in the balance

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2017 seems to have reached December at a relentless pace and has been dominated domestically by Brexit.  The future of agricultural interests seems still in the balance with deal awaited although, as ever, one just around the corner.  Michael Gove (now Secretary of State for Environment Farming and Rural Affairs) is showing a lively interest in farming issues and how to reform such, rather reminiscent of his period as Secretary of State for Justice.  He is, I am told, an able administrator, logical in his approach to issues that cross his desk but in a very politically volatile time his assurances to date of protection of Britain’s agricultural interests are feeling a little thin. 

There is certainly renewed interest in the environment as shown by DEFRA’s recent re-launch of a “Farm Reservoir Capital Grants Scheme” in August of this year, which scheme closes on 3 April 2018 for those who are interested.  The grant is payable under the Countryside Productivity Scheme with a minimum grant available of £35,000.00 to cover 40% of the overall costs to the farmer/landowner.  The concept is one that ticks many Government boxes as it deals with water storage, flooding issues in some parts of the country and productivity for the future and water is, of course, something which this island is blessed with!

Second interesting introduction from 2014/2015 was Permitted Development Rights to change the use of agricultural buildings and land immediately around it to residential use.  Known as “Class Q Development” this form of development allows for “reasonably necessary building operations for the conversion of the building”.  The latter regulation is being interpreted somewhat differently by local authorities across the country and has created several interesting legal cases.  One such case raised the question, “Can you take the building down to its metal frame and then rebuild walls and roof with materials you prefer or do they need to retain say their aluminium sides and roof?” and it would appear local authorities have a severe divergence on this question as well as other issues with barn conversions.

Due to this degree of confusion the Department for Communities and Local Government are to revise planning guidance to clarify what degree of conversion is “reasonably necessary” to satisfy the regulations – more anon. 

My initial advice, in any event, with any consideration of this scheme would be double check first what restrictions you may have on your property, including that agricultural building before you commence your planning applications.  You need to make sure where you have bought, say, from a County Council or landed estate that there are no restrictive covenants that could stop your plans.  Where there is a restriction, for example, “not to develop save for agricultural use”, this could then be a problem if you followed your planning application through as you could find the person who sold the property to you wanting to stop your scheme or share in it by way of a fee to release or vary the restrictive covenant.  Conversely if you are the previous land owner with such rights it pays to keep an eye on local planning entries to protect your interests.

A further and recent case for agricultural and sporting interest was that of Fuller –v- Kitzing 2017 recently reported in the agricultural journals.  The case considered a clause where property had been granted on a lease by the Defendant’s family to another party.  Reservations had been kept for the benefit of the Defendant’s let land as follows:-

“(a) sporting rights over the let land;

(b) a right to take game;

(c) to stand guns on the let land; and

(d) a right to come onto the let land to exercise the sporting rights and for management.”

There was also a general right of way granted across the land for the benefit of the retained land of the landowner over the lessee’s land. 

The Court stated that a general right of way over the lessee’s land was allowable for all legal purposes which would of course also include the sporting rights, however, the other rights granted above did not give a right to introduce and rear new young birds and poults on to the property or build holding pens for them on the property.  It did give the right to enter on the let property to protect and feed the wild birds on the land. 

There was also some discussion as to how near the let dwellinghouse, shooting should take place, the Judge addressed this as a question of “reasonableness” and the Judge certainly did not want to put any specific distance to keep away from the house on that right.  Common sense in safety issues hopefully to prevail.

Again, a case where clear instruction is needed and great care in drafting the clause to avoid any ambiguity.

We hope that 2018 will bring some clarity on the more pressing issues of Brexit and the agricultural industry, particularly as to our future markets and continued use of the European market in some form or other and also some clues, if not a route map, as to where the future agricultural support payments may or may not be paid and whether protection will be afforded in some form to the industry.  In the meantime, may I take this opportunity from all at Crombie Wilkinson to wish you and yours a Happy Christmas and successful 2018.