AgriFILE April 2011
Brethertons Are Down On The Farm
The Banbury Business Breakfast Club, which is organised and run by Brethertons, will be holding its first meeting “Down on the Farm” at The Upton Estate on 17th May.
Over the last 19 years or so, members of the Banbury Business Breakfast Club have consumed thousands of sausages, eggs, slices of toast and tonnes of bacon. However do the members really understand how it has been produced?
The May meeting will be held at the Waley-Cohen’s Upton Estate. Covering 2000 acres, Upton Estate sits on the Oxfordshire, Warwickshire border between Banbury and Stratford upon Avon Upton Estate offers; Commercial, Residential Lets, Thoroughbred Stud, Racing Yard, Conference facilities, Events Field, and an In hand farming enterprise. As manager of the Waley-Cohen Family Estate, Rob Allan is responsible for initiating these activities and keeping Upton Estate profitable. Rob will give a brief presentation on the Estate and the various work that goes on, down on the farm.
Farming remains the principal activity on the Estate and working in conjunction with the Wildlife Farming Company (WFC), Upton Estate provides a ground for environmental trials on behalf of companies such as DEFRA, Natural England and Centre of Ecology and Hydrology.
Marek Nowakowski, who runs WFC, started as a research scientist
in 1969, and in 1976 became an agronomist. In 1999 he set up
WFC dedicated to the creation of new wildlife habitats. Marek will
also be speaking at the breakfast meeting and will give a presentation
on food, farming and wildlife and how farms such as Upton Estate
can find an effective balance between profitable agriculture and
increased wildlife delivery.
If you would like to attend this Business Breakfast event please contact either Kate Austin or Felicity Wyatt
Primestock
Brethertons Agricultural Department, for the second year running, jointly sponsored the Primestock Show and Dinner with AMC.
Kate Austin of Brethertons Agricultural and Rural Business Team said: “We are committed to supporting the local agricultural community and sponsorship of the Primestock event gives us a great opportunity to do so; meeting both clients and contacts. It was good to see both the Show and Dinner Dance so well attended, even in the freezing temperatures!”
RABI Breakfast
Another breakfast! Brethertons were proud to be one of the sponsors at the Royal Agricultural Benevolent Institution (RABI) Breakfast on the 26th January. Kate Austin and Felicity Wyatt from Brethertons assisted with the organisation and fundraising. On the day there were around 200 people through the doors for the sit down breakfasts and about 100 for take-away breakfast rolls. The event raised just under £1500.
Government Announcement Of Fast Track Consideration Of The Feed-In Tariffs (FIT)
In February 2011, the Government's Secretary of State for Energy and Climate Change, Chris Huhne, announced the start of the first review of the Feed-in Tariffs (FITs) scheme for small-scale low-carbon electricity generation.
The review was to be comprehensive, and would consider all aspects of the scheme, including, most importantly, tariff levels, and administration and eligibility of technologies.
The FIT scheme only started in April 2010, and since then, over 21,000 renewable energy schemes have been registered, the large majority of which are domestic installations, including solar panels, wind turbines and micro hydro plants. Periodic review of the scheme was expected, but with gradual, incremental decreases to tariff rates, to take account of overall take up of the FITs, and to reflect the anticipated decrease in the cost of installations over time.
Last year’s Government Spending Review set the context for the first review of FITs. Felicity Wyatt, Head of Brethertons Agricultural & Rural Business Department, Banbury, explains that, in the energy sector, basically the Spending Review committed to improving the efficiency of FITs through the first scheme review, to deliver £40 million of savings, around 10%, in the 2014/2015 financial year. At the time of the Spending Review, the government said that the first review of FITs would still take place in 2012, as expected, taking effect in April 2013, unless higher than expected deployment triggered an early review. Consequently, when the start of the comprehensive review of the FITs scheme was announced in February, it understandably caused some minor concern in the industry, as the review was being brought forward from 2012.
Of only marginal reassurance was Mr Huhne's comment that the Government would not act retrospectively, and that any changes to generation tariffs implemented as a result of the review would only affect new installations into the FITs scheme. Mr Huhne assured the industry that installations already accredited for FITs will not be affected by the proposed review.
Alongside the accelerated review of large scale solar installations, and the FITs for these, was to be a study into the take-up of farm based Anaerobic Digestion (AD) plants. Feeling in the industry supported the view that the rates for AD are not high enough to justify investment in this sphere, nor to make on-farm AD plants worthwhile.
However, of far more major concern, Felicity Wyatt explains, was the announcement in February that the review would also include a fast-track consideration of large scale solar photovoltaic projects (over 50kW) with a view to making any resulting changes to tariffs as soon as practicable, subject to consultation and Parliamentary scrutiny as required by the Energy Act 2008. The bringing forward of this part of the review was justified as due to the perceived take-up of FITs by the large scale solar installations. Mr Huhne had noted in February that the FITs scheme had been highly successful at stimulating growth in the renewables sector. However, he expressed his concern about what he called super-size solar installations, which, he considered, could apparently take a disproportionate amount of the available funding, or even break the total cap on the funding.
The accelerated review was to cover not only large, field scale installations, but also installations of photovoltaic panels of over 50kW capacity, to include rooftop and building integrated panels.
So, following the announcement of the fast-track review in February, on 18 March 2011, the Department of Energy & Climate Change (DECC) announced its consultation on the review of FITs for small-scale low-carbon electricity, to close on 6 May 2011. The consultation proposes new rates for solar photovoltaics over 50kW and farm-scale AD, and seeks views on these proposed bands and accompanying changes to tariffs. The consultation announces that, subject to the responses received to the consultation and the legislative process which would follow, the DECC aims to introduce the changes by amending the FIT payment rates from 1 July 2011, with the new rates taking effect from 1 August. The consultation also calls for evidence on the FITs comprehensive review, which will be consulted on later this year.
Felicity Wyatt comments that the industry uncertainty born of the announcement of the fast-track review in February 2011 was hardly settled by the announcement of substantially reduced rates in the consultation announced on 18 March. She advises that urgent resolution of any amended FIT rates is required, so that investors, farmers and rural landowners can make the relevant financial enquiries in order to secure FITs at the highest possible rates for their farm-based installations. However, at the proposed rates, the effective slashing of the PV rates means that many proposed schemes will now be unviable, due to insufficient returns on investment. In addition, as Felicity notes, there is no announcement of any consultation on transitional arrangements for installations already under development. Felicity remarks: “Of only minor comfort is the announcement of higher rates for farm-based AD, but I cannot see that the proposed one penny increase on AD rates will make sufficient difference to AD investments to make these really any more attractive than before.”
Felicity Wyatt has experience in acting for landowners entering into options and leases for large scale windfarm schemes with wind generation companies, and can assist with legal advice for smaller scale single wind turbine and solar photovoltaic field-based or rooftop installations. For more details, please contact Felicity Wyatt on 01295 661529 or felicitywyatt@brethertons.co.uk
Abolition Of Agricultural Wages Board – UPDATE
On 22 July 2010 the Coalition Government announced through the Department for Environment, Food and Rural Affairs (DEFRA) the proposed abolition of the Agricultural Wages Board for England and Wales. This proposal forms part of a wide spread review of government spending that focused on over (480 confirm) existing government quango.
In spite of wide opposition from Unions such as Unite (which represents over a 150,000.00 agricultural workers), the demise of the AWB was confirmed when a final list of 192 quangos to be abolished was published by the coalition on the 14 October 2010.
There are currently three agricultural wages boards in existence: for England and Wales, for Scotland and for Northern Ireland. They are the only three wages boards remaining out of the 66 that once represented workers in industry sectors as diverse as; cutlery, hair, brush and broom, boot and floor polish and keg and drum, to name only a few. The initial remit of these boards was to regulate basic terms and conditions of work in specified industry sectors and to protect employees from exploitation. However, with changes in legislation and in particular the advent of the Working Time Regulations in 1998 and the National Minimum Wage Act in 1998, the need for these industry specific boards diminished, and all but three were disbanded. The Government of the day maintained a belief that agricultural workers continued to require special protection.
The AWB was first established during the First World War and has a statutory obligation to fix minimum wages and working conditions for workers employed in agriculture. It does this every October by issuing the Agricultural Wages Order. Once the AWB is abolished, farm workers’ pay will move in line with the standard National Minimum Wage. Gone will be the enhanced rates of pay, holiday, bad weather payments and dog allowances (etc) that agricultural workers enjoy and which are simply not legislated for by only the National Minimum Wage Act, which deals principally with a minimum rate of pay (currently less than the rate prescribed by the Agricultural Wages Order for standard workers).
This move could see many farmers better off and result in a significant reduction in employee overheads, although specialist employment advice should be sought to implement any contractual variations that would see employees worse off. However, every job has a market rate and we suspect that whilst additional benefits may suffer from an employee’s perspective, the market will dictate a consistently fair base rate of pay for most job roles in any event (likely to be higher than the National Minimum Wage).
NFU President, Peter Kendall, said “the Agricultural Wages Board is an industrial relations relic which exists in no other sector of industry. The presence of the board has impacted adversely on the competitiveness of the farming sector, and its removal is key to farmers and growers playing their full part in global food security……….the NFU believes that its abolition will put farmers on a more equal footing with other employers.”
On the other hand, Unites National Officer for Rural, Agricultural and Allied Workers, Ian Waddell, said that the proposal “spells disaster for farming in England and Wales. Farming is already suffering from an inability to attract and retain skilled workers. Bad employers will now undercut the good and drive a race to the bottom on pay which will exacerbate the skills shortage and threaten the viability of Agriculture in England and Wales. The coalition said that the National Minimum Wage will be enough to protect agricultural workers. However, it ignores the fact that 80% of agricultural workers are on skilled rates, well above the national minimum wage. Supermarkets and food processors are putting huge pressures on farmers to reduce prises. Once wage protection is abolished, it is obvious that the pressure will be passed on by farmers in the form of wage cuts. “
The date is yet to be fixed for the abolition of the board (and until then, the annual Agricultural Wages Order, that regulates pay and working conditions in the agricultural sector, will continue to apply), but the event is certain (or at least as certain as any political hot-potato can be) and will undoubtedly have wide reaching impact when it does come to pass.
Some readers may have heard that the Welsh (who it must be remembered enjoy their own Assembly) have challenged the lawfulness of the government’s decision to abolish the AWB within their jurisdiction. However, there is no question of a similar legal challenge in England and any change is only likely to arise from active lobbying.
Given the strength of feeling on both sides, we should brace ourselves for Union led strikes in the near future.
If you have any questions about the issues raised by this article or any other Agricultural Employment Law matter, please contact David Hodge, our Agricultural Employment Law Expert on 01788 559518 or davidhodge@brethertons.co.uk
Farm Insurer Pays Up for Driver Injury
When a spillage on a road causes an accident, it is often difficult to determine who was responsible for the hazardous conditions. In a recent case, however, a motorist who was injured in an accident caused by farm waste on the road won compensation of £20,500.
The accident occurred after the motorist drove around a blind corner and ran into a patch of mud and manure that had been dropped from a vehicle from a nearby farm. The driver lost control of his car, which skidded off the road and overturned.
The driver, who had been knocked unconscious, was taken to hospital, where he was found to have sustained knee and ankle injuries as well as a badly fractured wrist. After receiving treatment for his injuries, he underwent physiotherapy, but still suffers ongoing problems. He also has flashbacks to the accident and has developed a travel phobia.
The farm owners initially denied any liability for the accident, even though the motorist had been driving within the speed limit and no sign had been put in place to warn motorists that the condition of the road ahead was hazardous. They later made an offer of compensation, but this was rejected as not being commensurate with the seriousness of the motorist’s injuries.
Once court proceedings had been commenced, however, a revised compensation offer was made and accepted.
In a case last year, a cyclist who was injured after getting stuck in farm waste received an undisclosed amount in compensation from the farmer.
The cyclist had returned to the scene of the accident and took pictures of the waste on the road for use as supporting evidence in his personal injury claim.
In court, the judge was shown the photographs and found the farmer liable for the cyclist’s injuries.
Contact us if you would like advice on how to make a personal injury claim. It is important to take advice promptly as there are time limits that apply when making a claim for compensation.
Prescriptive Right Of Way – A Right To Do What?
The case of Dewan and others v Lewis 2010 illustrates the importance of ensuring, when claiming a prescriptive right of way, the evidence supporting the claim shows the right being used for the purpose you are claiming.
This case involved a private road which provided access to a group of cottages and a piece of agricultural land. The owner of agricultural land claimed a prescriptive right for agricultural use following 20 years of use between 1986-2006.
During the 1970s the agricultural land was used for farming and this included driving livestock along the road. However for the period the prescriptive right was claimed there was only evidence of individual animals (in this case horses) being led to the land for the purpose of grazing in connection with a livery business.
The owners of the cottages fronting the private road were happy to accept that a prescriptive right had been acquired for gaining access to the agricultural land. They did however maintain that there was no right to drive animals, as this had not been exercised during the period the prescriptive right was claimed.
At first instance the judge found that there was sufficient evidence to justify the acquisition of a right of access for agricultural purposes and that there was no basis for excluding the right to drive stock.
On appeal however this decision was overruled and it was held:-
- During the relevant 20 year period the road had been used for access on foot with vehicles and leading animals. There was no evidence to show that the road had been used for driving of livestock during that period.
- A right of way for vehicles or riding horses did not include a right to drive animals
- The owners of the servient land, the cottages, should not be burdened with a use which was greater than they and their predecessors had in fact consented to.
- A right to drive stock had not been established.
Kate Austin of Brethertons Agricultural and Rural Business Team comments “This case is a reminder of the importance of making sure correct legal rights of way are granted when dealing with land sales and purchases. If you are left having to rely on claiming a prescriptive right of way you may not end up with the rights you need.”
Dispute Between Neighbours to Go to Supreme Court
Following the last edition of AgriFile, we highlighted a case regarding a long running boundary dispute. There have been numerous issues arising since then and these are mentioned in the update below.
A long-running boundary dispute is on course for a hearing in the highest court in the land, despite the legal costs of the case having already greatly exceeded the value of the land under dispute.
Ian and Diane Pennock had built a stone wall with steps leading down to the water on the south side of a stream between what they considered to be their property and that of their neighbour, Gillian Hodgson. Mr and Mrs Pennock believed that the stream formed the boundary between their land and that of Ms Hodgson, who lived to the north of them. Both areas had originally belonged to the same owner. Ms Hodgson maintained that a fence which had stood to the south of the stream in 1993, when the land to the north was conveyed to her, represented the boundary. This would mean that the land, on which the wall was built, as well as the stream to the north of it, belonged to her. She demanded that the steps be blocked up.
When the case was heard in Newcastle upon Tyne County Court, the judge held that the governing conveyance, on which the Pennocks had attempted to rely, was unclear and that Ms Hodgson’s view of where the boundary lay was the correct one. This decision was unanimously upheld by the Court of Appeal. In his opinion, Lord Justice Mummery said that the judge in the lower court had not acted subjectively and, given the lack of clarity of the governing conveyance, was entitled to consider ‘extrinsic evidence’ (i.e. the physical features of the land concerned).
Although the judgment was highly critical of the parties’ inability to resolve the dispute without resorting to court proceedings, Mr and Mrs Pennock have been granted leave to appeal.
Felicity Wyatt, Head of The Agriculture and Rural Business team in Banbury comments, “This case reiterates the importance of having proper plans in place and the transfer of land following the correct procedures.”
Dates for your diary
• Brethertons are once again pleased to be attending Blakesley Agricultural Show at Hootons Farm on Saturday 6th August. Our team will be available for an informal chat or to assist with any questions you may want to discuss.
• Following the success of our Agri Horror Stories event last December, we are pleased to announce we will be holding an Agricultural Family Fireworks seminar in November. Dates and details will follow over the coming months so keep your eyes and ears open!
