1 Availability of management agreements
13.94 Management Agreements are available in the following circumstances:
(a)Nature reserves
13.95 Where the Conservation Body consider it would be in the national interest that land should be managed as a Nature Reserve, they have power under s 16 of the National Parks and Access to the Countryside Act 1949 to conclude management agreements with every owner, lessee or occupier of agricultural land.
Under the 1949 Act management agreements are intended to limit the exercise of legal rights over the land, whether of user or otherwise, and the agreement can, therefore, impose such conditions as seem expedient on the exercise of rights over the land by the land owner or other occupier. By virtue of s 16(3) the conditions which may be included in a management agreement include provision for the management of the land in such manner, and the doing of such work etc. as seemed expedient for the purposes of the agreement, and it can provide for the cost of performing the agreement to be defrayed by the Conservation Body or the owner or occupier, or partly by each party. Similarly, the agreement may make other provision as to the making of payments by the Conservation Body, and the payment of compensation for the effect of restrictions, as may be specified in the agreement. The management agreement provisions are supplemented by ss 17 and 18 of the 1949 Act, which give the Conservation Body powers of compulsory purchase exercisable where they cannot conclude a satisfactory agreement, or where a party is in breach of the terms of a management agreement previously entered into.(b)Sites of special scientific interest
13.96 By virtue of s 15 of the Countryside Act 1968, the Conservation Body has power to enter into management agreements where land is included in a notified site of special scientific interest. A management agreement will commonly be offered where the owner or occupier has notified the Conservation Body of his/her intention to carry out an operation notified as likely to damage the conservation interest in an SI, contrary to the site notification.199 Once the notification of land as an SI has been confirmed by the conservation body, however, an owner or occupier is entitled to seek a management agreement with the Conservation Body at any time.
The Conservation Body’s power to offer management agreements was widened by the 2000 Act to enable them to offer agreements to the owner or occupier of other land, whether or not adjacent to the SI.200 This power might be useful, for example, where conservation management is needed on farmland near (but not adjacent ) to a notified SI in order to fully protect the wildlife habitat on the notified site. Natural England’s power to enter into agreements to further sustainable development was further widened by the Natural Environment and Rural Communities Act 2006 to give them power to enter into agreements more widely both within and outside notified SIs. This power is an important supplement to the management agreement powers available in an SI and is considered below.201(c)Refusal of capital grant
13.97 Where a landowner or farmer has applied for a capital grant (eg for improvements) pursuant to s 29 of the Agriculture Act 1970, but the application is refused on conversation grounds after objections by the Conservation Body or Local Authority, the owner or occupier can in some circumstances compel the objecting bodies to offer a management agreement.202 When considering an application for capital grant for agricultural operations on land within a notified SI, the Minister has a duty to exercise his functions so as to further the conservation of flora, fauna, geological and physiological features of the site.203 If the Conservation Body objects to the making of a grant, the Minister cannot make financial aid available without considering the terms of their objection. Similarly, where land is within a National Park, the National Park Authority has power to object to the making of a capital grant for improvements, in which event the Minister will have to consider objections before making a decision.204 If the application is refused as a consequence of such objections, the relevant Conservation Body (or Authority if appropriate) must, within three months of receiving notice of refusal, offer to enter into a management agreement with the applicant.
The management agreement offered must make provision for restrictions on the activities in respect of which grant has, on conservation grounds, been refused and for making payments to the applicant(s) in consideration thereof.205(d)European Sites
13.98 The Conservation Body may enter into a management agreement with a person who has an interest in land which forms part of a European Site (for example the owner or tenant) or in land that is adjacent to such a site.206 The agreement can be for the management, conservation, restoration or protection of the site (or any part of it), and can impose such restrictions as may be expedient for the purposes of the agreement on the exercise of rights over the land by those with a property interest in the site.207 An agreement could, clearly, be concluded with a farm tenant as well as a freehold owner. Query however whether, in the light of the ruling in Southern Water v Nature Conservancy Council,208 an agreement could be concluded with an ‘occupier’ with no legal property interest in the land, or one that was transient and insecure eg a share farmer or grazier with a short term grazing licence or tenancy.
13.99 Management agreements in ‘European’ Sites may contain obligations as to land management of both a restrictive and positive nature. Indeed, the Conservation of Habitat and Species Regulations 2010 expressly envisage agreements making provision for the restoration, and not merely for the protection, of designated wildlife sites.209 Where the ownership of land subsequently changes, covenants of a positive nature will not normally run with the land so as to bind the land in the hands of successive owners.210 A covenant of a purely restrictive character, however, if contained in an agreement under seal, will run with the land and bind future owners. The 2010 Regulations expressly provide, however,211 that a management agreement will (unless it provides otherwise) be binding on persons deriving title under or from the person with whom the conservation body made the agreement, and will be enforceable by the conservation body against those persons.
The effect of this provision is (unless otherwise provided in the agreement) to annex the benefit of the covenant to the Conservation Body, enabling them to enforce covenants of both a restrictive and positive nature against a subsequent owner of the land over which it was concluded.13.100 Any management agreement made before the 2010 Regulations came into force on 1 April 2010 under the conservation body’s other statutory powers to conclude agreements212 will become subject to the rules in the 2010 Regulations (as described above) if the land concerned is within a site subsequently designated as a European Site. The agreement will, for example, become enforceable against subsequent owners and occupiers, and the 2010 regulations expressly provide that any actions done (or deemed to have been done) under the agreement prior to it coming within a European Site will continue to have effect as if done under the corresponding provisions of the 2010 Regulations.213 Payments under a management agreement in a European Site are governed by ministerial guidance, currently that which also applies to agreements under the 1981 Act.214 This makes provision for payments for positive conservation work undertaken by the landowner or occupier of the site under the terms of the agreement.
(e)Agri Environment Agreements
(i)Environmentally sensitive areas
13.101 Where land had been designated an ESA under the Agriculture Act 1986,215 the Minister was able to enter into a management agreement wherever it appeared to him that any of the ESA’s conservation purposes were likely to be facilitated by him doing so.216 The ESA scheme was firmly based on the voluntary principle and no provision was made for compelling appropriate land management to protect environmental features cf. the residual power of compulsion exercisable by Management Orders where a site has been designated an SI.217
13.102 The first generation of Environmentally Sensitive Area (‘ESA’) agreements in England and Wales were based on a standard contractual model.
Standardised and relatively inflexible management prescriptions were applied to all participating farms in each ESA, with prescriptions appropriate for the type of farming predominant in each area. A more sophisticated approach was adopted in the second and third generation of ESA agreements from 1992, which combined participation in a basic tier of obligations with optional additional (or higher) ‘tiers’ of participation under which extra premiums could be paid for allowing public access to farmland or for additional environmental obligations targeted at particular habitat types. This was essentially a more sophisticated variant of the standardised or ‘general’ contractual model, in which prescriptions were targeted at particular ESA areas218 rather than at individual farms and farm based habitats.21913.103 In the final phase of the programme, until its closure to new entrants in 2005, there were 22 ESAs in England:
•Stage 1 ESAs: The Broads, Pennine dales, Somerset Levels and Moors, South Downs,and West Penwith.220
•Stage 2 ESAs: Breckland, Clun, North Peak, Suffolk River valleys, and Test Valley.221
•Stage 3 ESAs: Avon Valley, Exmoor, The lake District, North Kent marshes, South Wessex Downs, and the South West Peak.222
•Stage 4 ESAs: Blackdown Hills, Cotswold Hills, Dartmoor, Essex Coast, Shropshire Hills, and the Upper Thames Tributaries.223
13.104 Policy and payments within each ESA were subject to five yearly reviews. The Secretary of State had power to enter into management agreements with farmers in the designated ESAs whenever it appeared to him that any of the conservation interests of the scheme were likely to be facilitated by him/her doing so.224 The terms of the management agreements in each ESA are specified in the relevant designation orders. These provided both for capital payments and for annual payments for maintenance of the land using traditional farming methods.
The capital activities to be carried out by the farmer would be specified in a capital works plan incorporated into the management agreement eg the recreation of herb rich meadows, coppicing of hedges or other works for the restoration or recreation of wildlife habitats.13.105 The requirements for managing the land for environmental protection and for public access were also specified for each ESA in the Designation Order. These varied from one area to another, depending on the traditional nature of the husbandry practiced there and the nature of the terrain and locality. Payments were agreed up to a maximum rate per hectare laid down in each designating Order. The allowances for each management prescription reflected the importance and difficulty of modifying the participants’ existing husbandry regime to accommodate the terms of the ESA agreement. Penalties were provided for the breach of a management agreement prescription.225 The Secretary of state could withhold future payments under a management agreement where a farmer was in breach of its terms, and could also demand repayment of all monies paid under it and levy an additional penalty of up to 10% of the payments made. Powers of entry to property were conferred on the Secretary of State and public officials to check and monitor the performance of agreements, and to require the production of relevant documentation
(ii) The Environmental Stewardship Scheme
13.106 Until the introduction of the Environmental Stewardship Scheme in March 2005 there were two principal agri-environment schemes in England within the England Rural Development Plan: the Environmental Sensitive Areas (ESA) scheme and the original Countryside Stewardship Scheme (CS). Both closed to new entrants in 2005. Agreements under both were for 10 years, and while many will now be ‘spent’ some may have been renewed and therefore have continuing relevance. The Environmental Stewardship scheme replaced ESA in 2005 and was based on a new approach to targeting and funding environmental land management. It sought to apply a more holistic approach to farmland biodiversity using a whole farm approach. It was also open to all farmers (not only those in designated ESA areas, as previously) and adopted an approach based in the provision of public goods, whereby farmers could offer benefits (measured in points under the scheme) in return for payment. This is considered further below. The latest agri-environment scheme – Countryside Stewardship, which replaced Environmental Stewardship in 2015 – has taken this approach further.
13.107 The Environmental Stewardship scheme was (like its counterpart Tir Gofal in Wales) an agri-environment scheme based on a whole farm approach that applied to the whole of England cf. the ESA programme, which applied in only the 22 designated ESAs in England. It was introduced in 2005 under the terms of the EC Rural Development Regulation, and was administered by DEFRA.226 The Secretary of State could make grants for the management of land under one of three optional elements: Entry Level Stewardship (‘ELS’), Organic Entry Level Stewardship (‘OELS’) and Higher Level Stewardship (‘HLS’). The Secretary of State could also make a grant to any person who entered into, and complied with, the conditions of an environmental stewardship agreement.227 The agreement must require the beneficiary to carry out a specific activity which will further environmental protection on land in which s/he has an interest. Detailed prescriptions were set out in the Environmental Stewardship (England) Regulations 2005, with basic prescriptions for ELS agreements in Sch 2, Pt 2 and more advanced prescriptions for inclusion in HLS agreements in Part 3 of Sch 2. The agreement could include elements from both ELS, OELS and HLS, and the conditions of each agreement could be varied by the secretary of state either with the other party’s agreement, or by notice (without agreement) where an alteration was necessary to comply with EU legislation.228
13.108 An application for grant aid had to include an application to enter into an environmental stewardship agreement.229 A grant could also be made for the preparation of a plan identifying the features of environmental significance on the farm, or common land, to be included in an environmental stewardship agreement containing an HLS element.230
13.109 An environmental stewardship agreement had to contain an ELS element, an OELS element, an HLS element or, exceptionally, a special project element.231 The agreement could contain more than one element in combination, although this was not obligatory and an agreement could (for example) contain exclusively ELS elements alone. Eligibility for participation in the scheme was determined by the applicant achieving the relevant points score for management undertakings under each of the four elements of the scheme.232 So for example:
(a)Under an environmental stewardship agreement with an ELS element the farmer must undertake to carry out on his/her ‘conventional land’ sufficient ELS options to meet the ELS points target. The points target was calculated by reference to the area of the conventional land: in relation to land within the less favoured area (‘LFA land’) which comprised all or part of a parcel of at least 15 hectares the target was 8 points per hectare; and in relation to all other conventional land, 30 points per hectare.233
(b)Under an environmental stewardship agreement with an OELS element the farmer must undertake to carry out on his/her organic land sufficient OELS options to meet the OELS points target. This is calculated by reference to the area of his organic land and set at 60 points per hectare.234
(c)The beneficiary of an environmental stewardship agreement with an HLS element had to undertake to carry out on the agreement land at least one HLS option; and
(d)in exceptional cases an agreement could contain a special project element.235 In the case of an environmental stewardship agreement with a special project element the farmer had to undertake to carry out on the agreement land any activity which, in the Secretary of State’s opinion, would better or more fully achieve the specified purposes than an ELS option, an OELS option, an HLS option or an HLS capital works item (or more than one such option or capital works item).236
13.110 The calculation of the amount of grant in respect of an ELS, OELS, HLS and special project element of an environmental stewardship agreement is made in respect of an ELS and OELS element by reference to the area of conventional land and organic land respectively.237 So, for example, the ELS payment in relation to any LFA land is fixed at £8 per hectare per agreement year and in relation to all other conventional land at £30 per hectare per agreement year.238 Grant in respect of an HLS element is calculated by reference to amounts set out in the environmental stewardship agreement for the HLS options and HLS capital works items included in it,239 subject to maximum amounts specified in the relevant regulations.240 Grant in respect of a special project element is calculated by reference to the payment rates or amounts specified in the environmental stewardship agreement for the special project activities included in it, subject to maximum payment rates and amounts.241
13.111 A conversion grant can be made to a farmer under an environmental stewardship agreement that contains an OELS element for organic farming.242
(iii)Countryside Stewardship
13.112 Environmental Stewardship closed to new entrants in 2015, and has been replaced by the new Countryside Stewardship Scheme, under which agreements will be available from 1 January 2016.243 Countryside Stewardship replaced Environmental Stewardship (both Entry Level, Higher Level and Uplands ES), the England Woodland Grant Scheme, and capital grants in the Catchment Sensitive Farming Programme. The scheme is administered by Natural England, the Forestry Commission and Rural Payments Service on behalf of DEFRA.
13.113 Unlike earlier rural development programmes, it is competitive, with entry to different levels of agreement based on a scoring system. There are three elements to the scheme: (i) Mid Tier agreements, aimed at securing agreements for environmental improvements to the countryside in its widest sense; (ii) Higher Tier agreements, aimed at securing agreements to manage environmentally significant sites, and those where complex management is required. The latter includes for example common land, where complex agreements may be needed between different graziers and landowners, or woodlands where complex management issues require support from the Forestry Commission; and (iii) a capital grant element, offering 1 or 2-year grants for capital improvements, such as providing new hedgerows, boundaries, improving water quality, creating new woodland etc.
13.114 Applications are scored by reference to two factors. A Statement of Priorities for the scheme sets out separate priorities for protecting and promoting biodiversity, landscape, water protection and quality, woodland management, protecting the historic environment, and multiple environmental benefits (for example establishing new wetlands, or enhancing existing woodlands). The priorities are specified in some detail for each region and district in England.244 The applicant’s score will be derived from the priorities selected for each parcel of land submitted, the appropriate land management options chosen, and the targeting priority (high medium or low) given to the feature or issue. A standard number of points are assigned to each priority level; so high priority features will score more than medium or low priority features. Each score will be ranked to determine which applicants are offered agreements, taking into account the available budget in a given year of the scheme. It follows that the points threshold for participation will vary from one year to the next, depending on the budget available. Higher Tier applications will be scored in a similar fashion, with outcomes scored relating to the biodiversity, water quality and historic environment benefits offered. There will be additional points for applications that include SIs, educational access to the land under agreement, or which promote genetic conservation. All applicants must complete a Farm Environment Record (‘FER’) that includes al parcels of land included in the application, and if an agreement is subsequently concluded there is an obligation to preserve and protect all features identified in the FER from removal or damage.
13.115 There are a large number of management options available under Countryside Stewardship, each with a different rate of payment calculated per hectare for land management, or by reference to the length of new feature provided (such as hedgerows or dry stone walls), or the area of a new feature such as ponds or skylark or lapwing nesting sites. So, for example, a hedgerow laying grant (under option BN5) is payable under both the mid tier and higher tier schemes, and as a hedgerow laying capital grant, for laying more than 20 metres of new hedgerow consisting of at least 80% native shrub varieties provided it is less than 5 m wide between wood stems at its base. This option pays £9.40 per annum per metre laid. Stonewall restoration (option BN12) is paid at £25 per metre of wall restored. By contrast the Whole Cop Cereals Option (AB7) is targeted to providing areas of open crop growth that provides summer forage for declining populations of farmland birds, small mammals and pollinator breeds (such as bees), and a winter stubble habitat for seed eating insects and overwintering farmland bird populations. The option requires the farmer to establish a cereal crop other than maize, leave cereal stubble in situ from harvest to 15 February in the year next following, and ensure that no herbicides are applied to the crop, that no insecticides are applied between 15 March each year and the next harvest, and that no manure or fertiliser is applied after harvest to the stubble. This option is paid at the rate of £495 per hectare under agreement per annum. The management options and conditions, and rates of payment, are specified in some detail in the Countryside Stewardship Manual.245
13.116 To be eligible for entry into Countryside Stewardship, land must be ‘agricultural’ land – meaning arable, permanent grassland or land down to permanent crops. Alternatively it may be forestry (minimum of 0.5 ha with a minimum width of 20m under stands of trees or with a potential to reach a height of 5 metres and with crown cover of more than 20% of the ground). Land that is in an SI, or a European site, may also be included (even if not ‘agricultural’ land) as can land that is a priority habitat or which supports a priority species as defined in the UK Biodiversity Action Plan.246 If the land entered into the scheme incudes SI land or is within an SAC, it will en necessary to ascertain whether operational consents from Natural England will be required for any changes in management involved in implementing the management agreement.247 It may also be necessary to consider and obtain other regulatory consents eg if the land is uncultivated or semi natural it may ne necessary to establish whether an EIA will be required,248 and in the case of water management proposals whether an environmental permit (eg For abstraction) is likely to be needed.249 Applications for higher tier Countryside Stewardship will be supported and assisted by a Natural England field officer, with whom these matters can be raised and discussed.
(f)Wildlife Enhancement Scheme/Tir Gofal/GlasTir
13.117 In addition to agreements available under the terms of the Wildlife and Countryside Act 1981, Natural England and Natural Resources Wales operate schemes aimed at fostering positive land management to improve and restore the rural environment.
13.118 The Wildlife Enhancement Scheme, operated by Natural England, offers grant payments for a variety of positive management obligations (restoring dry stone walls and vernacular buildings for example) and is based on a ‘whole farm plan’ management strategy. The scheme is limited to SI’s in England.
13.119 Several agri-environment schemes operate under the Wales Rural Development Plan 2007–13. Tir Gofal offered a whole farm plan approach with a menu of positive obligations carrying appropriate rates of payment. Tir Gofal replaced the ESA scheme in Wales. It differed from the Wildlife Enhancement Scheme in England, in that it was not restricted to SIs and was available across the whole of Wales. Management agreements were for 10 years with a break clause after five years. The scheme requires participating farmers to subscribe to a mandatory schedule of farm management obligations to maintain existing habitats, and then choose from an optional range of additional land management obligations targeted at habitat restoration or creation. These were focussed on the restoration of existing sites or the creation of new environmental features in four areas of concern: (i) the protection of landscape and historical features, such as traditional field boundaries, historic earthworks or stone structures; (ii) the reduction of intense management on arable and improved land. Management options here include keeping unsprayed cereal crops, winter stubbles & under sown spring cereals; (iii) grassland restoration such as the conversion of improved to semi-improved grassland, managing grassland for breeding lapwing or over-wintering wildfowl; and (iv) establishing new habitats and features such as new woodland, streamside corridors or new reed beds. The scheme also targets the creation of new permissive access to farmland.
13.120 Tir Gofal was replaced from 2012 by a single new integrated scheme, Glastir.250 Glastir has three elements: an all Wales entry (AWE) level element, based on a whole farm approach; a targeted element (TE) that will be available on part of a farm and targeted to delivering environmental improvements to key habitats, species, soils and water; and a common land element aimed at delivering environmental benefits in the management of common land (of which there is a considerable acreage in Wales). Management agreements are be for five years.
13.121 Agreements under both schemes are relatively short term – three or four years in the case of WES, ten years in the case of Tir Gofal with a ‘break’ clause after five years, and five years under GlasTir. Participation is entirely based on the voluntary principle. Management agreements are personal contracts with the contracting landowner or occupier, and will not run with the land – not being under seal, and encompassing positive land management obligations that cannot run with the land in English law.
(i)Management agreements: general powers
(i)Natural England – general powers
13.122 The Natural Environment and Rural Communities Act 2006251 gave Natural England a general power to enter into management agreements with any person ‘who has an interest in land about the management of that land’. It can exercise this power in any situation where it appears to it to further its general purpose to further sustainable development.252 This general power is not limited to land in SIs or other protected areas. It could, for example, be used to secure a management agreement on land contiguous to an SI in order to protect natural features on the protected site from activities that may impact upon the protected habitat eg to prevent water drainage which may have an impact upon the water level in a wetland habitat. Or it may be used to secure agreement in cases where no implications for protected sites are involved.
(ii)Local Government – general powers
13.123 The Wildlife and Countryside Act 1981 confers a general power upon Local Planning Authorities to enter into management agreements for the purpose of conserving and enhancing the natural beauty or amenity of land which is in the countryside and within their area, or for promoting its enjoyment by the public.253 This power enables the Authority to conclude an agreement with ‘any person having an interest in the land’ concerned (eg a tenant as well as a freehold owner), and is exercisable irrespective of whether the land is within a designated site of special scientific interest or any other area given protection by statutory designation. Local Authorities have a general duty under the Countryside Act 1968254 to have regard in the exercise of their functions to the desirability of conserving the natural beauty and amenity of the countryside. A management agreement concluded under these powers can impose restrictions on the methods used to cultivate the land, on its use for agricultural purposes, or the exercise of rights over the land. It may also impose obligations on the owner or other occupier to carry out works or agricultural/forestry operations. Additionally, a management agreement can confer on the Planning Authority power to carry out works necessary to the performance of its functions under the National Parks and Access to the Countryside Act 1949 and the Countryside Act 1968. It may also contain such incidental and consequential provisions as appear necessary or expedient for the purposes of a management agreement eg making provision for payments to the owner or occupier.255