Key legislative changes that rural landowners should be thinking about

Agriculture and other aspects of the rural economy are under constant change. The past few years have been particularly turbulent. Changes include the impact of Brexit on agricultural subsidy payments; which agricultural markets are available for our agricultural products and what products will enter into our markets and under what conditions; agricultural standards including animal welfare standards; increasing bureaucracy; and acute shortages of labour.  The rural community has been involved in environmental issues for a while. With the Paris Agreement and other legally binding conventions, it is clear the United Kingdom needs to make land available for the purpose of providing biodiversity, to conserve our environment and fight climate change. The government is looking to the rural community to meet some of this provision. What are the key developments that will address the demands which will be made on rural areas and the government’s priorities for the rural community? Climate change The fight against climate change and its catastrophic effects is a global one, centred around reducing and combatting the increased emissions of greenhouse gases such as methane and carbon dioxide, to avoid overheating of the planet. The UK is committing reducing its greenhouse emissions by 100% of 1990 levels by 2050 or reaching net zero.  The rural and farming community is crucial to this by virtue of its role in farming responsibly, its access to land which could be used to combat the effect of GhG emissions, and in producing and protecting our food supply. Consequently, the Agricultural Act 2020 and the Environment Act 2021 have introduced provisions which reflect that role.  The change from basic pay scheme to environmental land management scheme The Agriculture Act introduces a change to the farming grant system from the basic pay scheme to environmental land management schemes. Emanating from the EU, BPS payments are based on actively farming a minimum size of land. Farmers are paid a grant for farming, with an element of that grant dependent on environmentally and agriculturally responsible farming practices (cross-compliance rules). Farmers can also opt into greening payments whereby they are paid additional stipends for environmental land management. In addition to the BPS, the government operates countryside stewardship schemes which provide financial incentives for farmers, woodland owners, foresters and land managers to look after and improve the environment.  Earlier this year, the government announced three new schemes: the Sustainable Farming Incentive, the Local Nature Recovery Scheme and the Landscape Recovery Scheme. The SCI will eventually replace the BPS, which will be phased out. Payments under the SCI will not be based on farming as such, but on delivering environmental benefits while doing so. The Local Nature Recovery Scheme will eventually succeed the Countryside Stewardship schemes, and the Landscape Recovery Scheme relates to larger and more permanent projects aimed at habitat and landscape restoration. The SCI will start gradually this year, with full implementation aimed for 2025. The greening payments within the BPS have already been stopped. The plan is to gradually reduce the BPS, replacing it with delinked payments in 2024 with the last BPS payments made in 2027. Apart from the difficulties with getting to grips with a new (and, the government promises, simplified) system, there is a concern that farmers will lose money under the new schemes and/or that the schemes will be underfunded. It is true that payments under the BPS will be reduced each year, but if farmers choose to opt into the SCI, there will be more payments available under that scheme year by year. Currently, it is difficult to calculate accurately how those two systems will compare when changes are complete.  Biodiversity net gain The 2021 Act imposes an obligation for the majority of developments to deliver a 10% increase of biodiversity as a condition of gaining planning permission. Protecting biodiversity helps to mitigate climate change and reverse the decline of species. There is already legislation in place to protect habitats and species and planning policy which recognises the importance of improving biodiversity, where possible. The 2021 Act is unique in requiring a set increase in biodiversity and this will have an impact in terms of the skill sets and land needed to bring about this increase. The increase in biodiversity will either be delivered onsite or via off-site schemes or contributions to larger schemes. The system, in particular off-site provision, will be monitored by a biodiversity register and it will be possible to buy biodiversity credits from landowners or government.  Nature and conservation strategies The efforts to halt the decline in habitats and species will also be strengthened by local nature recovery strategies, to be operated by local authorities and conservation strategies under the remit of Natural England.  An important development is the emergence of conservation covenants, which exist in other countries but have been newly introduced to the UK by the 2021 Act. Conservation covenants between a landowner and a designated responsible public body or charity can contain positive and negative conservation obligations. Importantly, conservation covenants will include both positive and negative covenants which can bind land and are therefore another statutory exception to the common law rule that generally only restrictive covenants are binding on land, increasing what can be done to implement conservation strategies. Nature capital and land The new environmental management schemes, biodiversity and nature and conservation strategies all have impact on the land needed to deliver these schemes. One issue relates to taking land out of farming and dedicating it to schemes that will deliver environmental benefits and combat climate change, like tree planting or carbon storage. We need to consider what this means for food production and if this leads to more reliance on imports and the environmental cost and carbon footprint related to that.  The 2020 Act obliges the secretary of state for the environment, food and rural affairs to report to parliament every three years on food security in the UK. These will include such issues as global food availability, supply sources and household expenditure on food. The phosphates issue The build-up of certain nutrients including phosphates and nitrates into protected sites and rivers is problematic, not least because of the detrimental effect on protected species. Local authorities are under a statutory duty to assess planning applications for threats to habitats and species and have plans in place to manage this issue, including setting out a list of SACs for which safe phosphate levels have been exceeded.  In 2018, a European case known simply as “the Dutch Nitrogen case” changed or clarified the high standard that authorities have to reach before deciding there are no such adverse effects. This caused Natural England to change its guidance such that it was difficult for authorities to be certain development plans reached this standard. This in turn caused, in some areas, a moratorium on development. Rural areas have been affected by these changes because agricultural uses can produce significant levels of nutrients from the animal waste and washing which can enter protected sites through the soil, water tributaries, and the air.  The pressure has been eased first by Natural England developing products whereby developers can calculate their nutrient output and plan for measures to mitigate them. Secondly, the judgment in Wyatt v Fareham Borough Council in [2021] EWHC 1434 clarified how to assess these calculations, dispelling the notion that even the slightest scientific uncertainty about the possibility of negative impact means development cannot be permitted. Finally, a Habitats Regulation Assessment group set up by DEFRA will be working this month to “reduce legal ambiguity and rectify any problems caused by historic EU case law relating to the Habitats Directive and Birds Directive”. It is hoped this work will clarify matters, ease environmental concerns and enable development in an environmentally responsible manner.  Levelling up and the rural community The government’s Levelling Up white paper released last month aims to reduce the imbalances, primarily economic, between areas and social groups in the UK. In terms of the rural community, its biggest and clearest agenda was the Shared Rural Network Deal and the government’s promise to deliver 4G and 5G network coverage to 95% of the UK, including often poorly served rural areas. The paper also proposed to increase, as required by demand, public transport to rural villages that are not well served, with a pilot project to start in spring. The paper also mentions ensuring the accessibility of public natural beauty spots, the green belt and local nature recovery strategies, which is relevant to both rural areas and the fight against climate change and included in the studies within the paper relating to housing, finance, employment, productivity, education, pay and health. Although the network coverage is a welcome initiative, the government’s levelling-up plans do not, at first glance, seem to touch on many of the keenest issues facing the rural and farming communities. And finally: historical PROW Public rights of way are intrinsic to rural areas and the use of them is linked to wellbeing. Farmers and other landowners have traditionally accommodated their use, sometimes within their farmlands. The main types include public paths for walkers, horse riders, cyclists and, in some rarer cases, mechanised vehicles. PROW are recorded on the definitive map, which conclusively confirms the existence of a public path, and which can only be changed by a statutory process. Changes can include adding PROW which have been used without challenge for 20 years, or which existed historically and have somehow come off the map and are not shown on the ground. In respect to historical PROW, the rule is “once a highway, always a highway”. If a historical PROW is discovered, there is a right to apply for an order to amend the definitive map to include it. Sections 53 and 56 of the Countryside and Rights of Way Act 2000 state certain PROW which existed on 1 January 1949 but have not been recorded on the definitive map by 1 January 2026 will be extinguished.  In the past few years there has been a push to record PROW, to avoid losing them, by organisations such as the Ramblers Association and private individuals. This has affected and surprised landowners and farmers, as there is frequently no indication that these PROW exist, and they often go through parts of the farmland where it is unviable – if not impossible – to accommodate them. Several news outlets reported this  month that the government had assured the Ramblers Association it would abandon the deadline. No official announcement has been made yet but this move would take the pressure off all parties – farmers, the ramblers, other associations and the authorities.  Tracy Lovejoy is a senior associate in the planning and environment team at Irwin Mitchell Image © John Eveson/Flpa/imageBROKER/Shutterstock