8 Agri-Environment Schemes
3.71 There are now a wide variety of agri-environmental schemes, participation in which is available to farmers and landowners. The schemes vary as to whether the landlord’s consent is required for participation – some (such as the Environmentally Sensitive Areas scheme) have required only that the landlord be notified prior to the tenant entering the scheme, while others require the landlord’s written consent before a management agreement under the scheme can be concluded.147 The landlord may wish to include a covenant obliging the tenant to consult him as to the choice of scheme to be entered, especially where participation is likely to be a long term commitment (management agreements under the Higher Level Stewardship scheme were, for example, typically of 10 years duration).
Conversely, if the tenancy is for a short fixed duration, the tenant may not have sufficient security to guarantee performance of the schemes requirements for the required period of time. In this event, the landlord will have to be a party to any management agreement, and the tenancy agreement should make provision for consultation as to land management between landlord and tenant, and for the division of any payments made under schemes entered into.3.72 The 1995 Act gives greater scope for the adoption of environmental objectives within the farm business tenancy than was possible under the 1986 Act. Under the latter, the pursuit of conservation objectives (for instance pursuant to a management agreement) could result in a tenant being in breach of the rules of good husbandry (above). Where a conservation covenant was included in a 1986 Act tenancy, however, the tenant was protected against possible breaches of tenancy.148 The 1986 Act provided that the tenant was protected in proceedings for a certificate of bad husbandry if the practice complained of was adopted pursuant to a provision in the tenancy, or any other agreement with the landlord, which indicated that its object was the furtherance of one or more stated conservation objectives viz.
the conservation of flora or fauna, the protection of buildings of archaeological/historical interest, and the conservation or enhancement of the natural beauty of the countryside. The 1995 Act contains no protective provisions of this kind. It follows that if the rules of good husbandry have been incorporated as a term of the tenancy, in either unamended or amended form, consideration must also be given to including express provisions for the protection of the tenant against claims of bad husbandry that may arise from the adoption of environmental considerations in his land management.149 This will be of special relevance if the parties envisage that the tenant will enter an agri-environment scheme such as, in England, the Countryside Stewardship Scheme, which opened to new entrants in 2015. If the rules of good husbandry have not been incorporated into the tenancy, on the other hand, the inclusion of additional protective terms will be unnecessary.