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Law & Land: focus on regulation

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Posted on 09 April 2020

Floods, crops and BPS

The atrociously wet winter means that many farmers have struggled to get onto their land at all, let alone drill. If you think you may struggle to meet the 3-crop rule and the greening element of the BPS because of the heavy rain and flooding, the RPA has set out exemptions from the crop diversification requirements in its recent guidance. As a last resort, you may be able to claim force majeure which means you cannot meet your obligations due to events outside your control, such as adverse, extreme weather.

However, such claims are unlikely to be considered until later in Spring 2020 when the full impact of the weather becomes known. If you think your BPS payments will be at risk, start collecting evidence to support your claim (e.g. rainfall data, crop records and drilling date, photographs of field conditions). There are strict rules when claiming force majeure not least that you must inform the RPA of your circumstances within 15 working days from the date on which you are in a position to do so. You may also be eligible to claim from Defra’s Farming Recovery Fund if you are facing additional costs as a result of exceptional weather events.

General Licences: from revocation to reissue, at least temporarily

In February 2020 it was announced that six general licences for the control of wild birds will be reissued on a temporary basis from 1 March until 31 July 2020. This comes as the Defra review into the long-term general licences continues and is part of their evidential analysis to be used to design the future regime. The new regime is due to be announced in July 2020, giving users one month to familiarise themselves with it ahead of it coming into force on 1 August 2020. If you currently use the general licences, check that this temporary reissue does not affect your activity. We will issue another update once the new system is announced.

Fines for environmental breaches

The Environment Agency prosecuted various regulatory breaches in 2019, including the following:

  • Two related farming companies were fined a total of approximately £28,000 when a significant volume of spread slurry subsequently flowed into, and polluted, the river;
  • A company was fined over £140,000 for breaching permitted regulations after diesel leaked from storage tanks into a river; and
  • Another company was fined over £45,000 when poorly maintained ag-bags stored on their fields caused silage liquor to leak into two nearby watercourses.

The level of fines reflected the individual circumstances of these cases but with winter behind us, it is a timely reminder to check that your equipment and storage facilities are in full working order for the year ahead.

Septic Tank reminder

In our last edition of Law & Land we alerted to you to the new septic tank rules that came into effect on 1 January 2020. If you have a septic tank on your property that discharges directly into surface water, check if you need to act. It could mean a new small treatment plant or upgrade to the system is required. There is plenty of guidance online (including on our website), so check to see if you’re affected and what you need to do if you are.

Biodiversity Offsetting

As part of the planning process, developers are required to mitigate any potential damage to local biodiversity and wildlife value. If they don’t, they face the possibility of having planning permission refused. The Environment Bill is taking this a step further by introducing ‘mandatory net gain’ which means that development projects must actively enhance the biodiversity of an area (the net gain). There are currently pilot schemes underway to see how this can be best set up and managed. Among the options being explored is developers paying local authorities to enter into agreements with individual land owners to offset a development by creating or maintaining a particular habitat. There are also organisations that pair land owners with companies to initiate offsetting. The current concern is how such projects will be monitored to check that there is an actual gain and how long these agreements will run. However, bearing in mind the way regulation is moving at the moment, we anticipate considerable ramping up of this initiative over the next few months.

Tags: Agriculture

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