Update | Agriculture: easements and plant protection

Easements

Easement precedents in recent years have become more complex, and one is frequently driven to ask why they now need to cover so many previously unforeseen eventualities. However, in the light of Oliver & Anor v Symons and Anor [2012] EWCA Civ 267 it is difficult not to conclude that more, is probably more when drafting such rights. In, a dispute which Lord Justice Elias said “should never have come near a court”, It had to be decided (among other things) whether:

• the erection of three gates on a 100m stretch of lane constituted an obstruction of the right of way;
• the width between the gate posts could define the width of the whole track; and
• whether that right of way included ‘swing space’ and ‘verge space’.

The first point was decided relatively easily: if the gates (when open) did not obstruct the surface of the track then even if there were three gates over a very short distance, the right of way was not obstructed. The second issue is somewhat related to the first to the extent that it was held that the installation of gate posts will not delimit the lateral extent of an already-granted easement.

The third ground of appeal took somewhat more judicial time to unravel. There is a narrow distinction between what is known as:

• swing space, which is extra space, particularly on bends, required by large vehicles to pass through; and
• verge space, where vehicles frequently have to drive on the verge of a track or roadway.

Swing space can also form part of the verge. The existence of either does not, however, create an irrebuttable presumption that the servient landowner cannot build walls on either side of a track right up to a curb if he wishes. Elias LJ held that swing space does not have to be factored in unless the express words of the grant permit it. As far as concerns verge space, there is a suggestion from this case that where there are tyre-marks over the verge, some verge space may be implied into the grant if it is apparent that this space was used (in addition to the track or road) at the time of the grant and subsequently.

Farms are increasingly being sold in lots and getting the easement right will become increasingly important as parcels are further subdivided. The preferred course of action is for draftsmen to take care over the drafting and examination of existing rights of way before reporting to the client and lenders and to speak to the surveyor on the job (if there is one) to make sure that the documents reflect accurately what is happening on the ground.

Plant protection products

In the January 2011 agriculture update, this column looked at the requirements of the EU regulation 1107/2009 “concerning the placing of plant protection products on the market” (“PPP Regulation”) and the optional “tell your neighbour” provisions which the UK had chosen not to incorporate. The result of this is that while some farmers follow the NFU’s Good Neighbour Initiative (available at www.pesticides.gov.uk) there was no legal requirement of farmers to tell their neighbours before the product was sprayed.

The Plant Protection Products (Sustainable Use) Regulations 2012 (“2012 regulations”) which came into force on 18 July of this year and the accompanying draft National Action Plan do not add a ‘tell your neighbour’ requirement, but they do codify many of the current codes of practice and criminalise certain infringements of the rules. The key elements of the 2012 regulations of which clients should be aware are set out below in a redacted form:

• There has been a class of pesticide users called “grandfather-rights-holders” (people born on or before 31 December 1964) who currently do not need to hold a training certificate in order to spread pesticides. However, their exemption will end on 26 November 2015.
• In order to gain the relevant certification, operators need to have received training from an accredited provider.
• Any person buying pesticide must ensure that the end user will hold a certificate or work under the supervision of somebody holding a certificate.
• All reasonable precautions must be taken to protect human health and the environment and it is now a criminal offence not to do so.
• The amount and frequency of use in places used by the general public or by vulnerable groups is to be kept to a minimum. Farmers will have to pay particular attention when spraying near people’s homes, roads, railways, health centres, old people’s homes, schools and day nurseries - a full list is in the 2012 Regulations.
• Any equipment bought before 26 November 2011 must be inspected before 26 November 2016. Anything bought after that date needs to have an ‘MOT’ by the machine is five years old. After 26 November 2020, machines will need to be tested every three years, apart from a limited class of smaller handheld equipment (knapsack sprayers and other equipment listed in the 2012 regulations).
• From 26 November 2013, farmers must conduct regular calibrations and technical checks on their equipment.

Given that the equipment which applies pesticides to over 80 per cent of the country’s fields is already inspected under a voluntary scheme and on the basis that farmers are already bound to adhere to strict spraying guidelines in order to preserve their Single Farm Payments, it is questionable how much these regulations achieve. Nonetheless, Clients should be advised to take professional advice on the purchase, storage and use of pesticides in order to avoid severe penalties