Update: agriculture

One could be forgiven for believing that the Court of Appeal decision in Secretary of State for the Environment v Downs [2009] EWCA Civ 664 (Solicitors Journal 153/27, 14 July 2009) will serve merely to perpetuate the status quo ante, namely that growers can spray pesticides with impunity without the need to inform or consult nearby residents.

Georgina Downs, 35-year-old environmental campaigner and winner of the Daily Mail's 'Inspirational Eco Woman of the Year' last May, has been exposed to close-proximity crop spraying since moving with her parents to Sussex at the age of 11, although it was not until the early 1990s that her doctors discovered abnormal levels of pesticides in her blood.

Downs' original judicial review claim in 2004 stemmed from DEFRA's refusal to 'apply mandatory 'no-spray' buffer zones around agricultural land to protect rural residents from use of pesticides by farmers', in spite of such a policy being strongly recommended by the Royal Commission on Environmental Pollution (RCEP). Instead, DEFRA followed the conflicting advice of the Advisory Committee on Pesticides (ACP), which saw no need for any such precautions.

By the time the matter had run its course in the High Court last year, a simple request for judicial review of the 'no buffer zones' decision had become a declaration that the UK's implementation of the EU marketing of the Plant Protection Products (Pesticides) Directive (91/414/EC) was incompatible with the directive itself. This was on the grounds that: 1) the pesticide risk which DEFRA was assessing was the risk to the bystander, rather than the risk to the resident who had, literally, to live and breathe the stuff; 2) the directive prohibited any harm to health whatsoever from pesticides, whereas DEFRA and the Health and Safety Executive had merely satisfied themselves by counselling: 'No one should develop any serious illness through the use of pesticides.'; and 3) DEFRA was entitled to follow the advice of one body and not another, provided that it did not cross the Wednesbury threshold of irrationality. Nonetheless, where something as important as human health was concerned, DEFRA should have adopted the 'precautionary principle' and taken the safer route recommended by the RCEP.

The Court of Appeal overturned the High Court decision on the grounds that for each member state to 'macro-legislate' on the basis of local principles and morals would 'frustrate' the 'harmonization of authorization procedures enabling mutual recognition by member states of each other's authorizations'. Furthermore, where the science involved was so complicated, the threshold which the High Court should have applied was 'manifest error', and it could not be shown that there was manifest error in DEFRA preferring the advice of the ACP over that of the RCEP.

What next?

What has since been said out of court is every bit as important as what was said in court. Hilary Benn (secretary of state for the environment) was obviously pleased to have been vindicated, but went on to announce a consultation process on 'how to give people access to farmers' spray records, how to give residents prior notification of spraying activity and what else should be included in our national action plan'.

Many farmers currently operate a Good Neighbour Initiative, and the National Farmers' Union is currently consulting on an extension of this via a 'voluntary neighbour re-assurance scheme for residents living near a farm'. How this might manifest itself in practice is difficult to predict, and it is too early to point clients in one direction or another. The NFU's current ideas include a requirement for farmers to send letters to all households adjoining fields that could be sprayed. The letters would spell out the good practice which they currently undertake and ask if the neighbours wish to be notified when 'their' field will be sprayed. There would also be a website and/or a text messaging system to keep neighbours informed of spraying activities.

As for Ms Downs, irrespective of her views on the lords' decision and her £100,000 plus legal bill, she may have lost the battle, but she could well be on her way to winning the war.

Animal culling

In the last agriculture update (Solicitors Journal 153/20, 26 May 2009), we reported on R (on the application of Partridge Farms Limited) v The Secretary of State for the Environment, Food and Rural Affairs [2009] EWCA 284. The Court of Appeal held that the statutory compensation scheme which determines the value of diseased (and subsequently destroyed) cattle was not discriminatory, even if it sometimes resulted in a farmer being paid a third of the animal's market value in compensation. A balance had to be struck, the Court of Appeal said, between compensating farmers fairly while not overspending taxpayers' money.

Questioning that balance, Mr Partridge (backed by the NFU) appealed to the House of Lords. Barely two months later, the Appellate Committee refused permission. The NFU has recognised that Mr Partridge has no further judicial recourse, but is now pressing for the Cattle Compensatory Advisory Group to be convened for the first time since 2006 in order to 'work through the as yet unresolved issues with the tabular valuation system'.

While the door is not fully closed on the debate, farmers will have to live with the vagaries of the current tabular valuation system, unless or until it is revised in statute.

The hazards of livestock

McKaskie v Cameron (Blackpool County Court, 1 July 2009) is a stark reminder that personal injury claims can be just as much a result of the acts or omissions of an animal as they can be related to those of human beings.

One evening in May 2003, claimant Shirley McKaskie was walking to the pub with her dog across defendant John Cameron's field. Grazing in that field was a herd of cattle with calves ranging in age from six to nine months. The original right of way having become overgrown with nettles, it appeared that the claimant was following a well-trodden alternative route. As she was about to leave the field, the cows attacked her, causing skeletal and brain damage which has left her unable to work as she suffered from cognitive and adverse behavioural changes.

It is not certain what was the catalyst for the cows' reaction, although it seems likely that the presence of Tina, a five-month-old Jack Russell, could have exacerbated the situation. By all accounts, the bull in attendance remained impassive.

In spite of the Health and Safety Executive's investigation and subsequent decision not to prosecute, Mrs McKaskie brought her own civil proceedings in the county court, alleging negligence by dint of Mr Cameron having failed properly to assess the risk to the public, as well as a breach of the duty of care to visitors imposed by the Occupiers' Liability Act 1957. During examination, the claimant stated that she would 'definitely not' have gone into the field if she had seen a sign alerting her to the risk, adding that 'you would not expect dangerous animals if there was a public footpath'.

It was argued that the claimant had erred from the footpath, which therefore made her a trespasser. It was further contended that the claimant had known that cows could be dangerous and by entering the field she had tacitly consented to the risk of attack. Finding for the claimant, His Honour Nigel Howarth referred to the following matters in his judgment:

1. That the defendant was liable for his negligence in not having properly considered the risk that his cattle posed to members of the public, and for failing adequately to notify walkers of the dangers of cows with calves at foot.

2. The defendant was held to be liable under the Occupiers' Liability Act 1957, even though the claimant was reported to have deviated from the prescribed route of the footpath.

3. The Animals Act 1971 (analysed in greater detail in last week's issue of Solicitors Journal) had been breached, because, it was held, aggressiveness was a characteristic of cows with young calves.

In his judgment, HHJ Howarth was unsympathetic to the plight of farmers trying to strike the balance between practising good husbandry and keeping rights of way open, remarking that either footpaths should be fenced off (which in most cases will serve to make two fields out of one) or potentially dangerous livestock should be put to graze elsewhere.

While a failure to prevent walkers from deviating from a footpath does not change the prescribed route as far as the definitive map and statement are concerned, it will most likely increase the risk of liability being established where walkers are injured while 'on deviation'.

Also, it should not be forgotten that if the deviation is allowed to persist beyond 20 years, it will give rise to issues concerning prescriptive rights of way. While landowners may not be too enthusiastic about fencing off footpaths which run through their land, thought should be given towards siting feeding areas at safe distances from the path, in addition to providing information to the public.

The defendant's consent argument may have carried more weight if the claimant had been given clear information at the entrance to the field which would have enabled her to make an informed decision about whether or not to enter, especially with a dog. As such, landowners should consider finding an appropriate way of informing the public about any dangers (animal or otherwise) present on their land.

When creating signs, care should be taken to ensure that the public are informed rather than warned off; section 57 of the National Parks and Access to the Countryside Act 1949 makes a criminal offence of placing signs 'containing any false or misleading statement likely to deter the public from using the way'. Suggestions for signs include: 'CAUTION: Cows with calves,' and 'NOTICE: Farm livestock. Keep dogs under control.'

Notices referring walkers to the Countryside Code are also deemed acceptable.

Mr Cameron is currently awaiting permission to appeal; in the meantime, Mrs McKaskie was awarded an interim payment of £250,000 with full damages potentially running to £1,000,000, dependant on an assessment of her needs.

Farmers' and landowners' groups are keen to reassure their members that each case turns on its facts and that this is a first instance decision, and, while it would be an overstatement to speak of floodgates, it is fair to say there is no room for complacency on the part of landowners.

Bovine energy generation

Finally, given the current vogue of renewable energy, could this be the next big thing in dairy farming? William Taylor's 'livestock power mill' is essentially a treadmill belt, on which cows walk while eating. Said to be especially beneficial in winter (when cattle are infrequently put to pasture) the mill generates power from the rollers installed at each end of the belt. Although it has been suggested that milk production may well suffer as a result of the cow's power-generation activities, it is thought that Mr Taylor's next enhancement to his invention probably should involve a built-in methane capture system to add value to the power mill's green credentials.