Update | Agriculture: easements and plant protection

Easements

Easement precedents in recent years have become more complex, and one is frequently driven to ask why they now need to cover so many previously unforeseen eventualities. However, in the light of Oliver & Anor v Symons and Anor [2012] EWCA Civ 267 it is difficult not to conclude that more, is probably more when drafting such rights. In, a dispute which Lord Justice Elias said “should never have come near a court”, It had to be decided (among other things) whether:

• the erection of three gates on a 100m stretch of lane constituted an obstruction of the right of way;
• the width between the gate posts could define the width of the whole track; and
• whether that right of way included ‘swing space’ and ‘verge space’.

The first point was decided relatively easily: if the gates (when open) did not obstruct the surface of the track then even if there were three gates over a very short distance, the right of way was not obstructed. The second issue is somewhat related to the first to the extent that it was held that the installation of gate posts will not delimit the lateral extent of an already-granted easement.

The third ground of appeal took somewhat more judicial time to unravel. There is a narrow distinction between what is known as:

• swing space, which is extra space, particularly on bends, required by large vehicles to pass through; and
• verge space, where vehicles frequently have to drive on the verge of a track or roadway.

Swing space can also form part of the verge. The existence of either does not, however, create an irrebuttable presumption that the servient landowner cannot build walls on either side of a track right up to a curb if he wishes. Elias LJ held that swing space does not have to be factored in unless the express words of the grant permit it. As far as concerns verge space, there is a suggestion from this case that where there are tyre-marks over the verge, some verge space may be implied into the grant if it is apparent that this space was used (in addition to the track or road) at the time of the grant and subsequently.

Farms are increasingly being sold in lots and getting the easement right will become increasingly important as parcels are further subdivided. The preferred course of action is for draftsmen to take care over the drafting and examination of existing rights of way before reporting to the client and lenders and to speak to the surveyor on the job (if there is one) to make sure that the documents reflect accurately what is happening on the ground.

Plant protection products

In the January 2011 agriculture update, this column looked at the requirements of the EU regulation 1107/2009 “concerning the placing of plant protection products on the market” (“PPP Regulation”) and the optional “tell your neighbour” provisions which the UK had chosen not to incorporate. The result of this is that while some farmers follow the NFU’s Good Neighbour Initiative (available at www.pesticides.gov.uk) there was no legal requirement of farmers to tell their neighbours before the product was sprayed.

The Plant Protection Products (Sustainable Use) Regulations 2012 (“2012 regulations”) which came into force on 18 July of this year and the accompanying draft National Action Plan do not add a ‘tell your neighbour’ requirement, but they do codify many of the current codes of practice and criminalise certain infringements of the rules. The key elements of the 2012 regulations of which clients should be aware are set out below in a redacted form:

• There has been a class of pesticide users called “grandfather-rights-holders” (people born on or before 31 December 1964) who currently do not need to hold a training certificate in order to spread pesticides. However, their exemption will end on 26 November 2015.
• In order to gain the relevant certification, operators need to have received training from an accredited provider.
• Any person buying pesticide must ensure that the end user will hold a certificate or work under the supervision of somebody holding a certificate.
• All reasonable precautions must be taken to protect human health and the environment and it is now a criminal offence not to do so.
• The amount and frequency of use in places used by the general public or by vulnerable groups is to be kept to a minimum. Farmers will have to pay particular attention when spraying near people’s homes, roads, railways, health centres, old people’s homes, schools and day nurseries - a full list is in the 2012 Regulations.
• Any equipment bought before 26 November 2011 must be inspected before 26 November 2016. Anything bought after that date needs to have an ‘MOT’ by the machine is five years old. After 26 November 2020, machines will need to be tested every three years, apart from a limited class of smaller handheld equipment (knapsack sprayers and other equipment listed in the 2012 regulations).
• From 26 November 2013, farmers must conduct regular calibrations and technical checks on their equipment.

Given that the equipment which applies pesticides to over 80 per cent of the country’s fields is already inspected under a voluntary scheme and on the basis that farmers are already bound to adhere to strict spraying guidelines in order to preserve their Single Farm Payments, it is questionable how much these regulations achieve. Nonetheless, Clients should be advised to take professional advice on the purchase, storage and use of pesticides in order to avoid severe penalties

 

 

Wives and daughters The changing role of women in farming communities has prompted a new approach to succession planning, ?says Fiona Ashworth It was once widely acknowledged in farming circles that the son or sons, no matter where they fell in the birth order, carry on the family farming business. Daughters were encouraged to go out and find a husband who would provide them with a home and a good standard of living. For women who went on to marry into a farm, their role was to raise the children, run the household, grow and preserve most of the family’s food and act as bookkeeper and bill payer. Discussions of the benefits of diversification versus the potential for the loss of relevant tax exemptions have continued for 15 to 20 years. The concept gained credence when a combination of high bank charges, low returns, the unpredictable weather and the spread of disease lead farmers to realise that their incomes were unacceptably low when set against the capital value of their property. Farmers began to look at other means of ‘sweating’ their assets. One such change has come in the form of investment into alternative (often complementary) business ventures, many of which have given female members of farming families an in to a business which previously would not have made use of their skills. For many however, diversification expanded the farmer’s wife’s traditional role in that they had to go out to work to help make ends meet. Land girls While the enormous progress in machinery design cannot be underestimated (it has changed some of the physical aspects of the job enabling women to carry out tasks traditionally reserved to men), the diversification of the family farming business represents a perfect opportunity for women to take on management roles. Traditional roles have been put to one side as many farmers’ wives have recognised and embraced the increasing importance of information technology, marketing, accounting, tax planning, and personnel management. They have become, in many instances, the drivers of changes to the soft side of the enterprise which help make the on-farm business as profitable and successful as possible. Modern farming families are far more inclined than their forbears to incorporate the skills of their daughters and wives into their everyday business if they consider that they are an asset to the farm. In the coming years, however, it will become as important as ever for farmers to capitalise on the changes that continue to evolve in the farming world. To continue the success of the farming business, a comprehensive business plan is essential. This may involve ongoing meetings with the family’s professional advisors but, once a strategy is in place (whether founded on the basis of a family trust, a partnership or a family company) the foundation will be laid and the future hopefully more certain as a result. As other family members (both male and female) express an interest in joining the family business, their skills, strengths and weaknesses should be considered as objectively as possible when defining their roles within the business structure. The key to the continued success of a family farming business (and more importantly keeping the family unit together long after the parents have gone) is to consider what skill-sets lie with the children’s generation and think of how these might benefit the broader family’s prosperity. Daughters are increasingly not disregarded in favour of one or more brothers and for good reason. When matched with the business plan, a well-made appointment within the family should serve to encourage profitability while maintaining career satisfaction for all involved. A well-made appointment means matching the right person to the right job and defining that person’s responsibilities. By doing this, the farming family maximizes the chances of the continued success of the business, enabling it to support future generations in the longer term. Keep talking One difficulty that often prevents such forward planning is a lack of communication within the family. In particular, there might be a reluctance on the part of the parents to discuss their plans with the whole family in situations where their plans are in favour of just one of their children (sometimes to the surprise of the others when they learn of it). Whether this is because the parents wish to remain in control or whether they are just fearful of change, that pattern is now becoming the exception rather than the rule, not least because of its effect on relations between members of the next generation. Good communication remains a key to success and is crucial for the implementation of a good business plan. Properly developed over time, this will facilitate the involvement of younger generations who will bring in new and exciting ideas and technologies that will challenge and invigorate the development of the business. One thing is certain, the farm is usually considered the most important thing in life to the farming family which owns it and, hopefully, most of those families will have a keen interest in identifying which skills are necessary to safeguard the business in increasingly challenging times. Fiona Ashworth is a farmer’s daughter, ?a farmer’s wife and a solicitor in Birketts LLP’s private client team