2 Land Tenure and Management Agreements

13.124 The relevant statutory provisions all enable the relevant Conservation Body, Minister or Local Authority (whichever is applicable) to enter into management agreements with ‘any person having an interest in the land’ to which the agreement relates.²⁵⁶ An agreement can be concluded not only with a freehold owner of agricultural land, but also with a tenant and with any other person having a sufficient legal interest to enable them to guarantee performance of the terms of a management agreement.

(a)Formalities

(i)SSSIs and European Sites

13.125 No statutory obligation is imposed on a farm tenant to notify the landlord if a management agreement is concluded with the Conservation Body in respect of land within a site of special scientific interest. Similarly, where an agreement has been concluded with the local Planning Authority under the terms of s 39 of the Wildlife and Countryside Act 1981, no obligation is imposed on a farm tenant to inform his landlord of his intention to enter into an agreement.

13.126 In practice, the landlord’s agreement will be necessary in most cases in order to secure the long-term performance of a management agreement. For this reason the Ministerial guidance on Management Agreements²⁵⁹ requires that, in all cases, a tenant must notify his landlord of the proposed agreement. Natural England and Natural Resources Wales may also require confirmation that the landlord does not object to the terms of the proposed agreement. The guidance also indicates that the Conservation Bodies will normally require an agreement with the landlord confirming that, if the tenancy ends before the agreement, s/he agrees to maintain the land in accordance with the management agreement for the remainder of its term. This will be of particular relevance where there is a farm business tenancy, which may be for a short fixed period insufficient to guarantee observance of the management agreement prescriptions for the full duration of the agreement.

13.127 Where tenanted land is relet to a new tenant or licensee the landlord must notify the new occupier of the terms of the management agreement and ensure that the new tenant/licensee undertakes management in accordance with the management agreement.²⁶⁰ If the landlord resumes possession at the end of a tenancy, s/he will be obliged to observe the management agreement if s/he gave the Conservation Body a complementary agreement at the time of its original conclusion, as is suggested by the Ministerial Guidance. If, on the other hand, the land is neither relet nor taken inhand, but sold or otherwise transferred to a new owner or occupier, then provisions in the 1981 Act²⁶¹ seek to ensure that conservation management is maintained by the new owner. These provisions require the owner to notify the Conservation Body of any change of ownership or occupation of the land, and have been considered in full above.²⁶² They apply in the case of all changes in ownership or occupation of an SI, whether or not there is a management agreement with the occupant.

13.128 In the case of an agreement made by a local authority under s 39 of the 1981 Act, it is also specifically provided that the agreement’s terms will be binding on the successors in title of the party with whom the agreement was made.²⁶⁴ It would, for instance, bind the assignees of a lease if the assignor made the agreement, but not a landlord resuming possession on the termination or forfeiture of a tenancy.

(ii)Environmentally sensitive areas

13.129 Section 18(6) of the Agriculture Act 1986 provides that the Minister cannot enter into a management agreement under the Environmentally Sensitive Area scheme unless a tenant has certified that he has notified the owner in writing of his intention to make an agreement. An ESA management agreement will be binding on a successor in title or person deriving title under or through the offeree, and be enforceable accordingly.²⁶⁵ It follows that an agreement will not bind all future occupiers eg the owner if land is taken in hand, or future tenants to whom the land is relet (rather than assignees of the tenant who conclude the agreement). Additionally, it may have been necessary to include the landlord’s interest within a management agreement to secure the long term performance of the latter, as the tenants obligations thereunder may involve breaches of tenancy (as to which see further below).

(iii)Nature reserves

13.130 It is expressly provided, by virtue of s 16 of the National Parks and Access to the Countryside Act 1949, that a lessee may be a party to a management agreement in a nature reserve. Similar considerations as to the long-term performance of the agreement, however, apply.

(b)Contractual Competence.

13.131 Before entering a management agreement, the Conservation Body will wish to ensure that the occupier of the land affected has a sufficient interest to guarantee performance of the terms of the agreement. It must be one, furthermore, which will endure for at least the length of the proposed agreement. In the case of a tenancy within the Agricultural Holdings Act 1986 this is not problematic – the tenant will have lifetime security of tenure.²⁶⁶ If the tenant has a farm business tenancy, however, the length of the term may be relevant in negotiations for a management agreement, and problems could arise where short-term tenancy agreements are used. Most ESA management agreements, for instance, were for periods of ten years, and agreements under the Wildlife Enhancement Scheme will typically be for three or four years. In Wales, Tir Gofal agreements were typically for ten years with a break provision exercisable five years into the agreement. Agreements under the new Countryside Stewardship scheme will be for five years. The position of occupiers who have an interest that is less than a full tenancy is also problematic, as they may not be in a position to guarantee performance of the management agreement for the full length of its term.

13.132 Where land within a proposed management agreement, for example in an SI or where entry to Countryside Stewardship is proposed, is subject to registered rights of common, particular problems will arise. In order to guarantee compliance with the terms of a management agreement, it will be necessary to obtain the participation of all registered commoners in the agreement, and in the agreed management plan for the site.

13.133 In the case of tenanted land the following issues must also be considered:

(i)Leasehold obligations

13.134 The rules of good husbandry, set out in s 11 to the Agriculture Act 1947, lay down statutory standards of good husbandry. The provisions for the direct enforcement of the rules have been removed from the 1947 Act. The rules of good husbandry nevertheless retain considerable importance, and can be enforced indirectly in possession proceedings. They have particular relevance to tenancies under the Agricultural Holdings Act 1986 where proceedings can be taken before the agricultural land tribunal²⁶⁸ for a certificate of bad husbandry, or for breach of the tenancy agreement where (as is common) the latter makes observance of the rules a term of the tenancy.²⁶⁹ In the case of a farm business tenancy under the Agricultural Tenancies Act 1995, the tenancy agreement may incorporate the rules of good husbandry, in which case they may be enforced through forfeiture proceedings in appropriate cases.

13.135 The rules of good husbandry are intended to ensure the adoption of efficient farming methods by a tenant, untempered by considerations of conservation, and their observance could in some situations be in contradiction to conservation objectives contained in a management agreement. The Agriculture Act 1947 imposes obligations, for instance, requiring a tenant to maintain permanent pasture in a state of good cultivation and fertility and properly mown and/or grazed, and to crop arable land in a way which maintains the latter in a clean and good state of cultivation and fertility. The rules also require livestock farms to be properly stocked and an efficient standard of management maintained. A tenant must also, inter alia, take steps to keep crops and livestock free from disease and infestation by pests and insects, and carry out ‘necessary’ work of maintenance to fixed equipment and buildings where the obligation to do so falls on him.²⁷⁰ A management agreement will, in many cases, oblige a tenant to reduce stocking levels and refrain from using specified herbicides or pesticides. In this event observance of the terms of the agreement may well involve technical breaches of the tenant’s contract of tenancy. Additionally, observance of prescriptions commonly included in management agreements may also involve a tenant in breach of the model clauses implied into tenancies of agricultural holdings by s 7 of the Agricultural Holdings Act 1986.²⁷¹

(ii)Conservation covenants

13.136 In the case of a tenancy of an agricultural holding under the 1986 Act,²⁷² the tenant will be protected in possession proceedings brought under (respectively) cases C, D or E if the tenancy includes a suitably phrased conservation covenant. Schedule 3, para 9(2) provides that when deciding whether to issue a certificate of bad husbandry, an agricultural land tribunal must disregard any practice adopted by the tenant in pursuance of a provision in the contract of tenancy (or in any other agreement in writing with the landlord) which indicates that its object is the furtherance of the conservation of flora and fauna, the protection of buildings or other objects of archaeological, architectural or historical interest, the conservation and enhancement of the natural beauty of the countryside, or the promotion of its enjoyment by the public. It is further provided that for the purposes of cases D and E a conservation covenant²⁷³ is to be regarded as a term of the tenancy that is not inconsistent with the tenant’s duty to farm in accordance with the rules of good husbandry.

13.137 Clearly, where management agreements are negotiated with a tenant, the long term protection of the site concerned can best be preserved by including a conservation covenant in the tenancy agreement, or other written agreement with the landlord, in return for an appropriate payment – this will remove the possibility of possession proceedings arising, under the Agricultural Holdings Act, from performance of the obligations in a management agreement. There is no parallel provision protecting tenants with farm business tenancies under the Agricultural Tenancies Act 1995 entered into on or after 1 September 1995. In this event, the tenant would be protected against the possibility of forfeiture proceedings for breach of tenancy. In many cases, however, where the tenancy is for short fixed term duration or periodic, it may be terminated by 12 months notice – a more appropriate remedy for the landlord than forfeiture proceedings in which the courts have considerable discretionary power to refuse a remedy.