Natural England knows best?

[Goweresque]

If the scheme ended in 2012 then how can it be a breach of the scheme rules some 4/5 years later?

Unless the scheme rules stated when you entered the scheme that the land can never be improved/ ploughed etc AFTER the scheme agreement had ended.

If its the case that you enter these scheme's and put land into it that then can never be ploughed/ improved 5/10 /15 years after the scheme agreement has ended then i cannot see many farmers signing up for the ELMS scheme going forwards.

I think the issue is that there are two separate legal issues here - the legal agreement between landowner and NE that sets out the dos and don't of some environmental scheme, and the statutory protection that 'natural habitats' have under the law of the land. Thus while the environmental agreement may not say that the land cannot be cultivated again afterwards, if during its period of being in the scheme it has crossed the threshold required for statutory protection then that will take precedence when the scheme ends.

Its akin to the situation that exists with tree planting on farmland - the agreement requires the landowner to plant the trees and keep them in good order throughout the period of the agreement, it doesn't mention what may happen after it ends. Once the agreement does end however the trees will then be covered by other pre-existing laws about felling licences etc, and thus despite the planting and maintaining agreement having come to an end the landowner is not entitled to fell the lot and revert it to farmland. Entirely separate laws that govern when trees may be cut down then apply.

So it seems to me that this is the logical conclusion of environmental schemes, particularly ones that take land out of intensive production and leave them either unfarmed or farmed extensively. If the scheme actually achieves its goal you may well have created a landscape that then can never be reverted to intensive farming. Which is a lesson that anyone signing up to one of these schemes needs to bear in mind - when you sup with the devil, use a long spoon.............

 

[gone up the hill]

I think the issue is that there are two separate legal issues here - the legal agreement between landowner and NE that sets out the dos and don't of some environmental scheme, and the statutory protection that 'natural habitats' have under the law of the land. Thus while the environmental agreement may not say that the land cannot be cultivated again afterwards, if during its period of being in the scheme it has crossed the threshold required for statutory protection then that will take precedence when the scheme ends.

Its akin to the situation that exists with tree planting on farmland - the agreement requires the landowner to plant the trees and keep them in good order throughout the period of the agreement, it doesn't mention what may happen after it ends. Once the agreement does end however the trees will then be covered by other pre-existing laws about felling licences etc, and thus despite the planting and maintaining agreement having come to an end the landowner is not entitled to fell the lot and revert it to farmland. Entirely separate laws that govern when trees may be cut down then apply.

So it seems to me that this is the logical conclusion of environmental schemes, particularly ones that take land out of intensive production and leave them either unfarmed or farmed extensively. If the scheme actually achieves its goal you may well have created a landscape that then can never be reverted to intensive farming. Which is a lesson that anyone signing up to one of these schemes needs to bear in mind - when you sup with the devil, use a long spoon.............

Yep i totally agree with the above.

For the life of my i cannot see how NE can have any control over what you do with the land once it is out of the scheme agreement unless they make it clear for example when you enter the agreement that you can never again plough the land etc even after the payments/ scheme time has ended.

And the fact the judge says you cannot challenge any NE action after your agreement has ended is a complete nonsense and if that is really the case then the ELMS etc scheme is dead in the water before it even gets off the ground!

 

[ajcc]

Some additional salient facts in this case...
The rpa land registry has all of this land (33 hectare block)recorded as arable land, it has been worked, fertilised, rotationally cropped since css scheme end in Sept. 2012.
The Stop notice has no end date and has been in place since Oct.2017.
The land is aha tenanted, the landlord is National Trust.
There is no “semi natural” involved this is all “css arable reversion” land and being classified as uncultivated except in that NE influenced press report.
NE have recognised “no biodiversity interest” at scheme end.
The stop notice is about “historic environment interest.”

I was in Exeter Court again yesterday. ....Natural England knows best.

 

[holwellcourtfarm]

Some additional salient facts in this case...
The rpa land registry has all of this land (33 hectare block)recorded as arable land, it has been worked, fertilised, rotationally cropped since css scheme end in Sept. 2012.
The Stop notice has no end date and has been in place since Oct.2017.
The land is aha tenanted, the landlord is National Trust.
There is no “semi natural” involved this is all “css arable reversion” land and being classified as uncultivated except in that NE influenced press report.
NE have recognised “no biodiversity interest” at scheme end.
The stop notice is about “historic environment interest.”

I was in Exeter Court again yesterday. ....Natural England knows best.

You really do need a high quality competent representative fighting your case. What you say suggests to me that an individual NE officer may be exceeding their powers in the pursuit of a personal angle. The "justification" for the stop notice doesn't stand up given the history of use of the site.

Sadly your landlord will have no incentive to back you against NE given who they are.

 

[An Gof]

Some additional salient facts in this case...
The rpa land registry has all of this land (33 hectare block)recorded as arable land, it has been worked, fertilised, rotationally cropped since css scheme end in Sept. 2012.
The Stop notice has no end date and has been in place since Oct.2017.
The land is aha tenanted, the landlord is National Trust.
There is no “semi natural” involved this is all “css arable reversion” land and being classified as uncultivated except in that NE influenced press report.
NE have recognised “no biodiversity interest” at scheme end.
The stop notice is about “historic environment interest.”

I was in Exeter Court again yesterday. ....Natural England knows best.

National Trust land, I reckon you are snookered sad to say.

 

[chipchap]

The clue is in the words “arable reversion”

The land was arable land before the CSS.

Natural England should have no power to insist the land is managed as anything other than arable land after the scheme has ended surely?

It would be different if the land truly was a long term environmental feature, and had been before the CSS.

 

[bluepower]

National Trust land, I reckon you are snookered sad to say.
[/QUOTE]
Call me scepitical but I wouldn't be surprised if they were behind all this. In my own experience they made a complete horlicks of a mid/ higher tier application that ended up getting rejected five months into the scheme. Words fail me regarding that so- called organisation!

 

[steveR]

The clue is in the words “arable reversion”

The land was arable land before the CSS.

Natural England should have no power to insist the land is managed as anything other than arable land after the scheme has ended surely?

It would be different if the land truly was a long term environmental feature, and had been before the CSS.

The point you make was one that NE accepted in the past and it was accepted that land in reversion could indeed, return to arable production on the schemes ending.

Notwithstanding the point raised by @Goweresque regarding land becoming habitat, I would want to know on what grounds and when, NE changed that part of the Agreements?

 

[holwellcourtfarm]

The point you make was one that NE accepted in the past and it was accepted that land in reversion could indeed, return to arable production on the schemes ending.

Notwithstanding the point raised by @Goweresque regarding land becoming habitat, I would want to know on what grounds and when, NE changed that part of the Agreements?

Another of the standard conditions for DEFRA environmental schemes can be summarised as "we can change the rules whenever we like but you must obey them all".

Have a read of condition 21 below:

No defined advance notice, right to withdraw without penalty or right of appeal. I'm out.

 

[Goweresque]

Natural England should have no power to insist the land is managed as anything other than arable land after the scheme has ended surely?

Natural England can't change the law of the land. They are tasked with doing 2 different things, a) to protect existing habitats, and b) to operate environmental schemes on behalf of Defra. If in the course of (b) new habitats are created then they (which their habitat protection hat on) are statutorily required to protect it. If they didn't they'd be open to legal action for that failure.

I don't see this as NE being 'difficult' or having an agenda, I see it as the interplay of the myriad of different laws that apply within the UK. If you agree with the State to create a new habitat, then the laws that control existing habitats will certainly apply once its created. Indeed one could argue that the habitat laws started protecting the land before the end of the environmental agreement, its just that bound by the agreement the landowner didn't try to do anything that would have broken those laws until the agreement ended. That is to say if you ploughed up land in an environmental scheme halfway through you could have been prosecuted for doing that under EIA legislation, plus have been fined as per your scheme agreement.

I don't think that we will get any joy out of Defra or NE over this, in respect of whether ELMS will have similar problems, because they can't do anything. They can't change the law of EIAs, they are set by Parliament. So they can't give any assurances that if you enter ELMS you will always be able to revert to previous use at the end, because the law of the land may say otherwise. It would be on a case by case basis, some people wouldn't have created a protectable habitat, others would.

So I say again, enter environmental schemes, particularly long ones, with extreme caution.

 

[Goweresque]

Another of the standard conditions for DEFRA environmental schemes can be summarised as "we can change the rules whenever we like but you must obey them all".

Have a read of condition 21 below:

View attachment 954075View attachment 954075

No defined advance notice, right to withdraw without penalty or right of appeal. I'm out.

20.1 is the crucial bit, it basically says 'just because the agreement has ended does not mean both parties are not still bound by any other legal obligations that might have arisen during the agreement term'. Ie there are other laws that control the use of this land and if you have unknowingly fallen foul of them during the scheme period you are still bound by them after it ends.

 

[Andy26]

Natural England can't change the law of the land. They are tasked with doing 2 different things, a) to protect existing habitats, and b) to operate environmental schemes on behalf of Defra. If in the course of (b) new habitats are created then they (which their habitat protection hat on) are statutorily required to protect it. If they didn't they'd be open to legal action for that failure.

I don't see this as NE being 'difficult' or having an agenda, I see it as the interplay of the myriad of different laws that apply within the UK. If you agree with the State to create a new habitat, then the laws that control existing habitats will certainly apply once its created. Indeed one could argue that the habitat laws started protecting the land before the end of the environmental agreement, its just that bound by the agreement the landowner didn't try to do anything that would have broken those laws until the agreement ended. That is to say if you ploughed up land in an environmental scheme halfway through you could have been prosecuted for doing that under EIA legislation, plus have been fined as per your scheme agreement.

I don't think that we will get any joy out of Defra or NE over this, in respect of whether ELMS will have similar problems, because they can't do anything. They can't change the law of EIAs, they are set by Parliament. So they can't give any assurances that if you enter ELMS you will always be able to revert to previous use at the end, because the law of the land may say otherwise. It would be on a case by case basis, some people wouldn't have created a protectable habitat, others would.

So I say again, enter environmental schemes, particularly long ones, with extreme caution.

NE are interpreting the legislation to suit, the law gives a definition of cultivated land which copied from the 2006 SI is:

“uncultivated land” means land which has not been cultivated in the previous 15 years;

and the legislation defines cultivated as:

“cultivated” means cultivated by physical means (including ploughing and harrowing) or chemical means (including the application of fertilisers);

this is where the problem is; NE say you can have semi-natural land that is also cultivated.

Say for example there is some archaeology under an arable field that has been ploughed as far back as anyone can remember. If you put this down to grass, not in an stewardship scheme i may add, according to NE you need an EIA before ploughing up to put wheat back in. Because they interpret semi-natural to include historical features.

 

[holwellcourtfarm]

NE are interpreting the legislation to suit, the law gives a definition of cultivated land which copied from the 2006 SI is:

“uncultivated land” means land which has not been cultivated in the previous 15 years;

and the legislation defines cultivated as:

“cultivated” means cultivated by physical means (including ploughing and harrowing) or chemical means (including the application of fertilisers);

this is where the problem is; NE say you can have semi-natural land that is also cultivated.

Say for example there is some archaeology under an arable field that has been ploughed as far back as anyone can remember. If you put this down to grass, not in an stewardship scheme i may add, according to NE you need an EIA before ploughing up to put wheat back in. Because they interpret semi-natural to include historical features.

Is that only after 5 years when DEFRA decide it magically becomes "permanent pasture" or does it happen the day after sowing?

 

[Ukjay]

Braunton farmer admits ploughing up 'semi natural' land

A farmer has admitted breaking an order not to plough or graze animals on protected land which had been designated for conservation by...

www.northdevongazette.co.uk

Natural England knows best??......

Im reading all this and the comments saying you need legal advice etc, but I note you have already made reference to Solicitors / Barristers etc - so what has your Solicitor and Barrister come up with in relation to your not being able to challenge the legality of the order, so what was their rebuttal, as they must be offering you advice on this - and especially if there is nothing in Black and White to say you are held into the same conditions you accepted during the period you were within the agreement for perpetuity?

edit: and I did pick up the same point referenced in HCF post, point 20.1 that Goweresque has noted, which I would read as you have inadvertantly agreed that the land post agreement would be difficult to then revert to traditional farming practices without consent, so if your Solicitor / Barister have not come up with somethng to counter this in legal domain, then I feel you my have to accept things will not be as was.

 

[holwellcourtfarm]

20.1 is the crucial bit, it basically says 'just because the agreement has ended does not mean both parties are not still bound by any other legal obligations that might have arisen during the agreement term'. Ie there are other laws that control the use of this land and if you have unknowingly fallen foul of them during the scheme period you are still bound by them after it ends.

Potentially right. Then I consider it obligatory for the scheme handbook to spell out the relevant laws and their potential impact to enable a fully informed individual to decide whether to take up the scheme. Anything less is subterfuge imho.

 

[Andy26]

Is that only after 5 years when DEFRA decide it magically becomes "permanent pasture" or does it happen the day after sowing?

5 years is only for SFP/BPS nothing to do with EIAs.

 

[holwellcourtfarm]

5 years is only for SFP/BPS nothing to do with EIAs.

So the answer is?

When does a ley risk trapping you into perpetual land use restriction?

 

[Ukjay]

Potentially right. Then I consider it obligatory for the scheme handbook to spell out the relevant laws and their potential impact to enable a fully informed individual to decide whether to take up the scheme. Anything less is subterfuge imho.

But why would they do something as open like that HCF - not trying to be argumentative, just simply stating the obvious as many T+C's have things buried that trap the unsuspecting individual should they not read the whole doc, or had it vetted legally before signing.
It is not good, and an underhand tactic on the whole.

 

[holwellcourtfarm]

But why would they do something as open like that HCF - not trying to be argumentative, just simply stating the obvious as many T+C's have things buried that trap the unsuspecting individual should they not read the whole doc, or had it vetted legally before signing.
It is not good, and an underhand tactic on the whole.

You expect such hiding of pitfalls in a contract by the private sector but, surely, we should demand better from our public servants? Or am I being intentionally naive?

 

[Yale]

These are the exact rules which push people to JFDI.