Update: agriculture

One in the eye for nimbyism

A NIMBY/nImbi/noun.slang: a person who objects to the siting of something unpleasant or dangerous in his or her locality.

AONB: area of outstanding natural beauty.

Levering these two acronyms together can be quite a challenge, but one of proportions quite unequal to those faced by Herefordshire Council after it decided to grant planning permission to a farmer for the erection of polytunnels without first requiring an environmental impact assessment under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.

On 15 October 2008 farming company EC Drummond & Son was granted planning permission to use polytunnels to grow soft fruit. The site amounted to just over 930 acres in the Wye Valley AONB, of which no more than 133 acres would be 'polytunnelled' at any one time. The contentious part was that the

930-acre site comprised of listed buildings was overlooked by Goodrich Castle (a scheduled ancient monument) and led down to the river Wye, although the meadow part of the site next to the river was not contemplated for polytunnelling. The land abutted a special area of conservation and a site of special scientific interest.

This mobilised the Wye Valley Action Association (WVAA), which sought judicial review of the council's decision on the basis that the application consisted of a 'project for the use of uncultivated land or semi-natural areas for intensive agricultural purposes' (schedule 2 to the 1999 regulations) and therefore needed an environmental impact assessment before permission could be granted.

The High Court agreed, the decision suggesting that cultivated land could be treated as a 'semi-natural' area simply because it was within a designated area such as an AONB; as such, it would fall within the ambit ofthe EIA regime.

Giving judgment in the Court of Appeal (The Queen (oao Wye Valley Action Association Limited) v Herefordshire Council [2011] EWCA Civ 20), Lord Justice Richards referred to the guidance attached to council directive 85/337 EEC, pursuant to which the 1999 regulations were introduced.

When trying to establish whether or not an area is 'semi-natural', 'emphasis should be on identifying those areas which reflect natural conditions and which have some intrinsic nature conservation or other environmental value which would be lost by agricultural management proposals employed to permit intensification of agricultural practices'. In Lord Justice Richards' opinion, land already subject to cultivation could not be classed as a 'semi-natural' area. Concluding, he held that the council's decision had been made lawfully and that the High Court had therefore been wrong in seeking to impose a substitute decision on the council.

This case will come as a relief for soft-fruit growers around the country. The only matter for conjecture is how many members of WVAA and similar organisations will cheerfully tuck into polytunnel-grown strawberries at Wimbledon and various church fetes this summer!

Contracts: not just a load of old 'bull'

A recent unreported case involving 'Britain's largest bull-based stud' is a reminder that the sheet full of eight-point text that so often goes unprinted or unread needs to be scrutinised carefully if the otherwise hapless customer is to stand any prospect of maintaining an action against a supplier which doesn't live up to its promise. Such actions are most frequently brought for defective goods or services either under the Sale of Goods Act 1979 or the Supply of Goods and Services Act 1983.

In this case, four farmers brought proceedings against Cogent UK Ltd because between them they had bought over 400 'measures' of semen from an apparently potent bull Tamhorn Rocket.

The semen comes pre-packed in 'straws', having been stored in liquid nitrogen. The precise facts are unclear from the information available, but the result appears to have been that the resultant progeny was somewhat less than expected, which effectively left the farmers having paid for a 'product' which fell short of expectations. It is understood that the contract contained a term excluding liability on the part of Cogent where use of the straws did not result in calves.

Two of the four farmers had not been shown Cogent's terms of business, whereas the remaining two were deemed to have been aware of the terms and conditions by virtue of having been regular customers '“ and this proved to make the difference in court between judgment in their favour and a very large bill for the other side's legal fees.

As in this case (and notwithstanding the effect of the Unfair Contract Terms Act 1977) a business such as Cogent may be able to convince a court that its standard terms have been incorporated into a contract between the parties such as two of the four in the instant case under which the defective semen was sold. The incorporation would have taken place as part of a course of dealing between the parties.

To satisfy this principle of 'course of dealing', the court must be satisfied that, as a result of the term's consistent use in previous transactions, the reasonable expectation of the parties involved is that the terms will apply to the current transaction.

The party seeking to establish the course of dealing must show that there has been regular trading between the parties and the trading has been consistent (i.e. the terms have been consistent and the procedure followed has been the same each time) and it is likely that Cogent 'got home' on this basis.

The result is a seemingly unfair (if legally correct) judgment, where out of four claimants '“ who appear to have suffered identical proportions of loss and who are probably equally unlikely to read the supplier's terms of business '“ only two can be successful.

While many outside the profession assume that a contract is nothing more than a lawyer's exercise in trying to get the Flesch reading ease test into single figures, it does contain the basis on which the parties have agreed to deal with each other, and clients who enter into valuable contracts (either as suppliers or customers) should be encouraged to examine them with care and seek advice where necessary.

In general, if the standard terms are printed on the reverse of a document, the document should state this on the face of it as well as state that the sale/purchase is made on the terms and they form part of the contract. If it is an unusual standard term, particular notice should be drawn to it by the party wishing to rely on it '“ burying it in the small print is not an option.

Pesticides

In the last agriculture update, we reported that the option in the European regulation 1107/2009 (pesticides regulation) which would require farmers to adhere to an 'obligation before the product is used to inform any neighbours who could be exposed to the spray drift and who have requested to be informed' would not be transposed into UK law as part of its implementation.

While farmers may be relieved that they do not have to notify their neighbours that they are about to spray, the notification threat is highly unlikely to disappear completely.

The results of a public consultation were published on 15 December 2010, and Defra has in March of this year published a further informal consultation, together with draft regulations, which are expected to come into force on 14 June of this year (UK regulations). This is the date when the pesticides regulation becomes effective in the UK.

The March consultation closed on 12 April 2011, but a salient element of it was article 67 of the pesticide regulation, which essentially requires 'professional users' of plant protection products to keep records of the products used for at least three years. Further, the records must contain the name of the product used; the time it was used; the dosage applied; and details of the field and the crop over which it was applied.

The regulation stops short of insisting that all this information must be sent to the 'competent authority' (likely to be Defra) as a matter of course, but third parties (including residents) will be able to ask Defra to provide this information, which would undoubtedly have to trigger a request of the farmer. Any failure on the farmer's part to provide the requested information would result in a £5,000 fine.

Since the pesticides regulation is directly applicable in the UK, the provisions of article 67 will be incorporated verbatim into our statute book. However, Georgina Downs of the UK Pesticides Campaign, already disappointed by the government's failure to incorporate the prior notification provisions, is concerned that the government and/or DEFRA will not implement the provisions of article 67 correctly in practice.

Turning to the mechanics of how farmers will comply, one can only hope that, by the time these regulations are finally transposed into UK law, the RPA will have resolved all of its mapping issues, and farmers will be able to draw a little comfort from the fact that they might use the field reference numbers from the plans of their holdings rather than having to go to the expense and trouble of commissioning a surveyor to produce plans and acreages of the fields affected.

Don't assume that DEFRA won't come knocking, and ensure that clients have the most up-to-date information '“ this will become law in less than two months.

All the colours of the rainbow

The current high price of sheep has precipitated a resurgence in sheep rustling, in particular where sheep are left to graze on hill and moor land. Devon farmer John Heard has lost 200 sheep to rustlers in recent years. In an act which may remind some solicitors and farmers of the milk quota transfers of yore, Mr Heard has had his flock of 250 sheep dyed orange to enable them to be easily identified. This appears to have resulted in a significant reduction in thefts from Mr Heard's farm, and country folk should be prepared to see a much increased variety of ovine colour schemes!