AgriFILE February 2010
Welcome to the first edition of AgriFILE a newsletter which is produced and edited by the Agricultural and Rural Business Team here at Brethertons
The purpose of Agri FILE is to keep our clients, contacts and perspective clients up to date with some of the main legal issues affecting the agricultural industry. We will also from time to time feature some local news and if you are lucky some out and out gossip!
In House News: Tristram is a Jolly Good Fellow!
We are pleased to announce that Tristram van Lawick has been awarded a Fellowship from the Agricultural Law Association. This follows Tristram successfully passing the Agricultural Law Association’s Fellowship Examination that he sat at the end of June last year.
In House News: Primestock Show and Dinner
Brethertons were proud to jointly sponsor the Primestock Show and Dinner with the AMC in December. The Show on 7th December was a well attended event with many entries. Tristram van Lawick had the pleasure of making presentations and meeting the winning producers.
The dinner was also well attended and it was good to see members of the agricultural community having a chance to enjoy themselves.
In House News: My Kingdom For a Horse…
A recent survey carried out internally at Brethertons by the social committee found that Brethertons is a firm of horse lovers. Whether it be going for a hack in the countryside, playing polo, showjumping, dressage or eventing, you can be sure someone at Brethertons will have done it! This is great news for clients who need a firm who understands equestrian issues.
Intestacy Misery for Farmers can be Avoided
It always amazes us that a good proportion of the population still do not make a Will, perhaps because they do not see first hand the misery, conflict and cost that can occur as a result. The recent case of Booth v Booth took several years of expensive litigation and resulted in a complete split of a farming family and erosion of what had been a successful farming operation.
When his wife died intestate (without having made a Will) in 1993, Mr Booth administered the estate on the basis that as the estate was worth less than £75,000.00 (the ‘Statutory Legacy’) he was entitled to everything. The assets, including a substantial farmhouse, were worth considerably more than this; however Mr Booth had dishonestly undervalued the estate to his advantage and as such he had misappropriated the estate of his wife and deprived her children of their rightful inheritance.
Mr Booth died in 2005 leaving everything to his son in his Will, and nothing to his siblings. The son stood to inherit everything despite the fact that had it not been for his Father’s dishonesty, he would have had to share the residue of his mother’s estate with his siblings. At both first instance and on appeal the Courts held that the mother’s estate should have been administered under the intestacy rules when she died in 1993. Therefore Mr Booth should have received the £75,000.00 Statutory Legacy and the remainder of the estate should have been split with half going to Mr Booth for life and then to the children and the remaining half going to the children absolutely in equal shares. No doubt for matters to be put in the position they should have been following the mother’s death will involve a great amount of time, expense and upheaval for the family.
The background and facts to this case are lengthy and complex, being further complicated by various acts of ‘jiggery pokery’ as one of the claimants put it during the trial. However despite this, there are a number of factors that we can all take away form the case. Apart from the obvious, everyone, especially those with complex property or circumstances, must make a carefully thought through Will. The Statutory Legacy (which for deaths since 1st February 2010 is £250,000) still applies to those dying without a Will.
The Agri FILE View
We are surprised that the children took no action when their mother died and this point was raised during the trial. Bereavement mixed with finances often muddy the waters of rational thought and behaviour. As every estate now requires an Inland Revenue Return to be submitted to HMRC on a death it is perhaps a situation less likely to arise. However it is certainly a worry, especially for children of a first marriage or in the common case where one child only is involved in the farm business. With the farm asset being the principle component of the estate, there are always difficult decisions to be made to establish how the child who is the working farmer can inherit something worth having, but at the same time, make fair and reasonable provisions for the other children to avoid a situation such as that in Booth v Booth. There are no quick fix, easy solutions, but we have plenty of experience of the rich variety of circumstances, and will be able to help you work towards a succession solution that works for you and your Family.
Failed Property ‘Try On’ has Potential to be a Criminal Offence
In a recent ruling in favour of a Council, the Judge who heard the appeal in relation to the grant of a certificate of lawful use opined that the manner in which the property owner had obtained the initial planning permission may well be a criminal offence.
The property owner submitted a planning application to build a barn to store hay in a Metropolitan Greenbelt area. This was granted on the condition that use was limited to the storage of hay or some other agricultural purpose. When the building was constructed it looked, from the outside, like a hay barn. However, internally it was fitted out as a dwelling. The owner moved into the property allegedly using it as a home from August 2002 onwards. In 2006, he applied for a certificate of lawful use on the ground that the property had been used for four years as a dwelling. Such applications can be made when the owner can show that the property has been occupied in breach of planning control for the required period of time. The appropriate time limit is four years where there is a breach of operational development or change of use of a building to use as a single dwelling.
The Council refused to grant the certificate of lawful use. The property owner appealed the decision and the building inspector upheld the appeal on the grounds that he had been using the building as a dwelling for four years. The Council then in turn appealed that decision.
In Court, it was accepted that the property owner had intended to deceive the Council from the outset regarding the true use of the building. This, as it turned out, may have been an unwise admission, as the Court suggested that the property owner might have committed a criminal offence by obtaining planning permission by deception. If the offence of deception were taken further and proved, then the profit from the alleged crime could be subject to confiscation under the Proceeds of Crime Act 2002.
The Court ruled that the certificate should not be granted. Firstly, the construction of the building was not unlawful. The property owner had obtained planning permission to construct a building to be used as a barn and the judge stated that the existing building could be used as a barn within the permitted use. Therefore there was no breach of operational development. Secondly, there was no change of use to a dwelling. The building had always been intended to be used as a dwelling, was constructed to be a dwelling and had been used as such from completion of its construction. Therefore there had been no change of use. In giving his decision, the judge said that he felt that this conclusion accorded not simply with the merits of the case but also prevented a particular sort of fraud from being committed.
The Agri FILE View
In this case the fact that the property owner admitted that he had intended to breach the conditions of the planning permission from the outset and had fitted the building out as a dwelling from construction in order to deliberately deceive the Council ultimately undid his case. Had the property initially been used as a barn and then converted into and used as a dwelling, he may well have been successful in obtaining the certificate of lawful use after the relevant four year period had expired. The decision in this case and the reference to a criminal offence was very probably intended to act as a deterrent against similar ‘try on’ applications.
Mind Your River Frontage
If you own river frontage and know that a third party moors a boat there, you should be aware of a recent case.
The High Court had to determine whether the owner of a boat that had been moored for many years on the Thames had acquired title to the river bed by adverse possession (squatter’s rights).
Mr Ashmore owned a sailing barge, which he kept tied to mooring rings in the bank of the river Thames near Battersea Bridge for more than 12 years. At all times he lived on the vessel and had never paid anything to the Port of London Authority. The Authority claimed that he was a trespasser on its property and attempted to register title to the previously unregistered river bed. (There is a different system for claiming title to land that is registered, which makes this in practice much harder to do). Mr Ashmore objected to the application.
Twice daily, at low tide, Mr Ashmore’s boat rested on the river bed. He claimed that he had demonstrated physical custody and control over the land and an intention to exercise custody and control over it for his own benefit – these being sufficient to justify a claim to have the title in the land registered in his name. Mr Ashmore succeeded.
One interesting point was the area of land he acquired through adverse possession. The boat would move on its moorings with the flow and ebb of the river’s tide. The Court’s ruling here was that Mr Ashmore acquired, in effect, all the area the boat could come into contact with on the river bed as it drifted on its moorings and the area of river bed between the boat and the river bank, despite the fact that the boat was not able to be in constant physical contact with the river bed.
The Agri FILE view
There are a number of factors that are particular to this case that had a significant effect on the outcome. For a start the part of the river where the boat was moored was tidal; whether the Courts would have arrived at the same decision if the boat had only floated above the river bed the entire time is questionable. Secondly the title to the river bed was unregistered. If the river bed had been registered then Mr Ashmore would have been unlikely to succeed. Therefore a similar situation is unlikely to arise very often; however owners of river banks where third parties are likely to moor boats for prolonged periods of time should consider taking steps to ensure that they can demonstrate that they are not giving the boat owner sufficient grounds to claim title to the river bed.
Duty of Care to Employees – Obvious Risks
It is well understood that every employer owes a duty of care to his employees, but deciding who is responsible for an accident can be very difficult when the issue is whether warnings against risks should have been given or, if given, were adequate.
Employers often argue that employees are responsible for their own actions. However employers have a duty to warn employees of potential risks in the workplace, even if these are obvious. It may seem reasonable to consider that if you failed to explain to an employee how to safely operate a complicated piece of agricultural machinery that he may in all likelihood injure himself, while in other cases it may be thought that some common sense is required and so a detailed explanation is not necessary! A recent case may on the face of it appear to back up this view as it confirmed that some risks are so obvious that warnings need not be given, for example where to argue a lack of awareness of the risk would be absurd. However, as with many areas of law, the distinction between what is obvious and what is not is somewhat of a grey area.
In the case in point, an employee turned a box upside down in order to reach material on a top shelf. The box slipped from underneath him, causing him to fall and sustain injury. The employee’s case failed both in the lower court and on appeal because the employer had specifically warned all employees that the use of boxes for this purpose was unsafe and, importantly, had provided a safe alternative for reaching high items.
The Court of Appeal said that an employer is responsible for devising safe working methods and practices and, where they have issued a warning against a specific risk, they should not be held liable for an injury to an employee who ignored the warning. The judge commented that ‘some dangers are so obvious that no instruction is required’ but this would not have been the case in this instance. Had the employer not warned of the potential risks attached to using the box for this task, the argument that the employee was capable of appreciating the risk for himself would have been rejected.
What constitutes a sufficient warning is a grey area and is an issue of fact, not law, so previous case rulings provide little assistance as each case is judged on its own facts. In an unreported case, an employer was held to be liable for an injury sustained by an employee who had mopped a floor and then slipped on the wet surface that she had created. The employer argued that it was obvious that the floor would be wet immediately after mopping and that it needed to be dry mopped to be safe. However this argument was rejected by the court.
It has been suggested that an employer is only under an obligation to warn employees of risks that fit within the broad remit of the employee’s job description. For example, if an employee were to put his fingers into an electrical socket, the employer would not be liable for the resulting injury as this was not a part of their ‘system of work’. In contrast, an employee who has been asked to rectify a paper jam in a photocopier should be warned of the risks. In some circumstances, an employer may decide to let experienced employees devise their own safe working practices in relation to certain tasks but, ultimately, it is the employer’s responsibility to assess and warn against workplace risks.
The Agri FILE View
When it comes to employer’s duty of care, the best way to safeguard against potential claims, especially in an arena where there are as many potential hazards as there are in a farm yard, is to point out and warn against the painfully obvious. The fact that a risk may be averted by using common sense is sadly not always going to be enough to prevent potential liability. Therefore ensuring that a full risk assessment of tasks is carried out and that all employees are instructed how to carry out tasks in a particular manner to avoid identified risks is paramount.
The Duty to Manage Asbestos – HSE Guidance
According to statistics provided by the Health and Safety Executive (HSE), asbestos is the single greatest cause of work-related deaths in the UK. Every year 1,000 people who have been involved in carrying out building maintenance and repair work die as a result of past exposure to asbestos fibres and it is estimated that half a million commercial buildings still contain asbestos.
Buildings all need repair and maintenance work from time to time and it is when asbestos fibres are disturbed, e.g. by drilling or cutting, that they are most likely to be inhaled as a deadly dust. The Control of Asbestos Regulations 2006 introduced a legal duty to manage asbestos. The duty applies to all non-domestic buildings and the common areas of residential rented buildings.
If you are responsible for maintenance and repairs of premises covered by the Regulations, you have a duty to manage asbestos if:
Whilst a building constructed in or after 2000 is unlikely to contain asbestos, if it was built on a brownfield site or contains old equipment it is important to follow the correct steps in order to comply with the law.
The ‘duty holder’ must take reasonable steps to find out if the premises contain asbestos If it is shown that there is asbestos present, or that asbestos is liable to be present, the duty holder must:
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determine what risk the asbestos poses
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produce a written plan identifying the areas where the asbestos is located; and
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identify the measures being taken to manage the risks posed by the asbestos.
It is then for the duty holder to review the risk management plan and revise it as necessary and ensure that the measures for controlling the risk are being implemented and further are being recorded.
The HSE has published new guidance, which takes duty holders through the process of understanding their obligations with regard to the management of asbestos. This includes a useful checklist of each step that must be taken and an example of an asbestos management plan. In addition, it can also help you decide whether or not you need to use an HSE licensed contractor to carry out planned maintenance work.
The Agri FILE View
As many AgriFILE readers will know, as a result of asbestos’ fire-resistant qualities its presence in farm buildings can be quite common, particularly in roof panels and partitions. Therefore there is a high likelihood that you will need to have an asbestos management plan in place. While many people who fall under the definition of ‘duty holder’ may not comply with these regulations, the HSE does have the power to impose fines for non-compliance.
A useful fact sheet can be found at http://www.aic.org.uk/ACdisinfecting.htm
Court Finds Hole in Polo Argument
Ownership of land is often fettered with obligations and, in some circumstances, the obligation can be to permit someone else to extract something from the land. In legal terminology, this is called a profit-à-prendre and one of the most common of these is the right to graze animals.
Where such a right exists, the owner of the land cannot prevent the right being exercised. Recently, the High Court had to consider such a case. A farm which reared polo ponies sought to re-establish the right to graze them over a piece of adjacent land owned by someone else. The right was to graze the ponies from evening until morning for eight months of the year. The farm sought to register the right at the Land Registry. The application was opposed by the landowners.
The landowners had fenced off a part of the land which was being used to keep chickens and a pig. A deputy adjudicator at the Land Registry ruled that the farm had no right to graze its ponies on the land. The owners of the farm appealed against the decision, which led to the matter being heard in the High Court.
After complex arguments, the judge decided that the initial decision had been made on the wrong grounds and that, in principle, a right to profit-à-prendre had been established. The case was remitted back to the adjudicator for reconsideration.
The issue arose initially because the owners of the land, which they had bought in 1994, appeared not to be aware of the existence of the legal right to graze the ponies. The result was a court case over a right that, in financial terms, is almost valueless.
The Agri FILE View
The effect of this case is to clarify the existing law in relation to profits-à-prendre. The judge, in considering the appeal, determined that the Land Registry adjudicator had applied the wrong test to determine whether a profit-à-prendre existed or not and sent the matter back to be re-considered applying the new test. So while the case may not alert us to a hitherto unknown threat, it does highlight how important it is when buying any property to ensure that rights others may have over the land are fully explored and their implications considered to prevent lengthy and costly litigation.
