Country%20Matters%20September%2011

Country MattersSeptember 2011

Welcome

As many of you will know, the Wildlife and Natural Environment (Scotland) Act 2011 was passed by the Scottish Parliament earlier this year and much of the new Act came into force on 29 June and 1 August. We therefore concentrate on the most controversial aspect of the new Act, potential criminal prosecution of landowners for acts of raptor prosecution by their employees or agents.

We welcome associates Robert Forman and Murray Soutar, and senior solicitor Andrew Ion, three new lawyers who have recently joined our Agriculture and Estates team. They are all highly experienced at delivering the diverse and sophisticated range of legal services required by the Scottish land and rural business sector. Murray and Andrew have both contributed articles to this issue of Country Matters.

As ever, if you have concerns or questions about new legislation or any other issue, do please get in touch.

Odell Milne, Partner

Specialist wildlife and environmental crime prosecutors appointed With most of the Wildlife and Natural Environment (Scotland) Act 2011 now in force, there is a renewed focus on tackling wildlife and environmental crime – and two prosecutors have now been appointed as new full-time specialists in this field. Based in Glasgow and Edinburgh respectively, Kate Fleming and Shona McJannett will investigate and prosecute all cases involving crimes against wildlife and the environment in Scotland. They will also cover animal cruelty cases. Kate and Shona will be managed by Tom Dysart, Area Procurator Fiscal for Ayrshire and Dumfries & Galloway, and supported by Alex Prentice QC, Crown Counsel for wildlife and environmental cases.

The Crown Office has had part-time environmental prosecutors since 2004 but the new full-time specialists will now deal with the 100 reports on wildlife and environmental crimes received annually by the Crown Office – a clear indication that it is not just the new legislation which signals the intention by legislators and enforcement authorities alike to “get tough” on wildlife and environmental crime. As the Lord Advocate said, “We know that serious and organised crime groups are becoming involved in environmental crime. Our specialist prosecutors will work closely with the Crown Office Procurator Fiscal Service civil recovery and criminal confiscation specialists to ensure that any proceeds of crime will be recovered.”

There have been several recent cases successfully prosecuted by the Crown Office’s wildlife and environment specialists, including the following:

▪ Gamekeeper Lewis Whitham was fined £800 for planting a poisoned rabbit carcass on the Hopetoun Estate in South Lanarkshire.

▪ Martin Johnstone was fined £500 for deliberately hunting foxes with two dogs in Glasgow.

▪ Coal mining company Aardvark TMC Ltd was fined £10,000 for breaching the terms of a Special Site of Scientific Interest (SSSI) near New Cumnock, Ayrshire.

▪ S.D. Cameron Ltd, of Kiltarlity, was fined £30,000 for carrying out unauthorised work to the banks and bed of the Belladrum Burn (a tributary of the River Beauly) on behalf of owner, and Stagecoach Director, Ann Gloag.

▪ Dean Barr, sporting manager at the Skibo Estate near Dornoch, was fined £3,300 for possessing the largest ever recovered amount of the banned pesticide carbofuran. It was found in the course of an investigation into the discovery of dead birds of prey, believed to have been illegally killed on the estate, including three golden eagles, a sparrow hawk and a grouse laced with carbofuran, which was pinned to the ground by a metal spike.

Robin Priestley, Brodies LLP


Landowners in the firing line?Introduction

The Wildlife and Natural Environment (Scotland) Act 2011 (the Act) became law on 7 April 2011 and some of the detailed provisions are already in force. The Act will affect, to a greater or lesser degree, all those involved in the rural sector. However, one particular area has, quite rightly, caused concern amongst landowners - liability for wildlife crime in circumstances where the actual crime has been committed by a third party. The relevant provisions are principally aimed at dealing with raptor persecution and are likely to come into force in the autumn.

Vicarious Liability

The vexed concept of vicarious liability operates as follows:-

Where a person (A) commits certain offences against wild birds, sets traps for them or possesses poisons illegally while acting as the employee or agent / provider of relevant services to a person (B) who has a legal right to kill or take wild birds over land, or manages or controls that right, then B is also guilty of the offence.

Management or control of the exercise of a right to kill or take wild birds over land is stated to include (and ‘relevant services’ are defined as) the management or control of (i) the operation or activity of killing or taking any wild birds, (ii) the habitat of such birds, (iii) the presence of predators of any such birds and (iv) the release of birds from captivity for the purpose of being killed or taken. So, in broad terms, the definition is one of ‘keepering’. In respect of the provision of relevant services, A may be employed not directly by B but by some other party that is providing such services to B. Consequently, the liability of B also extends to sub-contractors. B can be prosecuted for the offence along with or instead of A. However, there is a statutory defence if B can show that he did not know that the offence was being committed by A and he had taken all reasonable steps and exercised all due diligence to prevent the offence being committed.

Cause for serious concern?

So are landowners, factors, sporting tenants and the like potentially in the firing line for the crimes of others? Put simply, yes – but the position is arguably not as bad as it first appears:-

▪ As a matter of law, a crime must have actually been committed by A. It is difficult to comprehend how B could be prosecuted without a successful prosecution of A to prove the original offence. As a criminal offence, the charge would require to be proved beyond all reasonable doubt – which cannot be established without testing it in court. Moreover, A cannot rely on the statutory defence which is available to B, so A would appear to be the easier target. It therefore follows that a successful prosecution of A would appear necessary in order to pursue B. One slightly concerning aspect is that A could conceivably receive immunity from prosecution in return for giving evidence against B, but that remains to be seen and would hopefully only arise where B was, in any event, culpable.

▪ There is the statutory defence available to B. The question of B’s knowledge of the offence will be a matter of evidence. However, even if B had no knowledge, he must also have taken all reasonable steps and exercised all due diligence to prevent the offence being committed. It was noted during Parliamentary debate that the terms ‘reasonable’ and ‘all due diligence’ were well understood in Scots law and no further guidance was required. There is no doubt that ‘reasonableness’ is a clear legal concept but it is by no means defined and rests on facts and circumstances. The due diligence defence is likewise a concept well-known to other areas of law and the purpose of the defence has been judicially defined in the House of Lords as being “to mitigate the injustice, which may be involved in an offence of strict liability, of subjecting to punishment a careful and conscientious person who is in no way morally to blame”. The accused B would therefore have to show that he exercised the appropriate level of care necessary to be blameless and that will be a question of fact and degree for the court to determine.

Conclusion

Whilst these changes to the law pose a potential threat to landowners and other affected persons, we would conclude that law abiding individuals should not be unduly concerned providing that they take steps to mitigate the risk of prosecution. We will shortly be issuing a Guidance Note on how best to ensure the statutory defence is available - but as a minimum measure, it is suggested that landowners produce a written policy on such matters and a written acceptance of compliance by those who fall within the definition of persons A. Hopefully prosecutions will only be pursued and will only succeed against those B persons who are genuinely complicit in acts of wildlife crime. Alex Buchan, Brodies LLP


On 22 March, 2011, the Public Services Reform (Agricultural Holdings) (Scotland) Order 2011 (the Order) came into effect. From both Landlords’ and Tenants’ perspectives, the Order introduced welcome changes to the Agricultural Holdings (Scotland) Act 1991 (the 1991 Act) and the Agricultural Holdings (Scotland) Act 2003 (the 2003 Act).

Viable units

Under the 1991 Act a Landlord was, in certain circumstances, permitted to terminate a secure tenancy acquired by succession if the holding in question was not a ‘two-man unit’. A two-man unit was defined as an agricultural unit which was capable of providing full-time employment for the individual occupying the unit and for one other man. The introduction of modern technology has brought about significant changes in farming practice in recent years and the concept of a two-man unit was considered outdated. The legislation now adopts a more modern test by the introduction of the term ‘viable unit’. A viable unit is defined as an agricultural holding which is capable of (i) providing full-time employment for an individual occupying it and (ii) the means to pay the rent and maintenance costs of the holding. The Order brings the test applied in the 1991 Act up to date with modern farming practice.

Post Lease Agreements

Historically, Post Lease Agreements (PLAs) were a means by which a Landlord could avoid the requirement of providing fixed equipment on a holding. The 2003 Act allowed a Tenant to nullify the PLA after a rent review had taken place. However, this was considered unjust. Rent reviews were being determined prior to fixed equipment obligations being known. The Order addresses this inequality. Now, if a Tenant wants to nullify a PLA he must notify his Landlord of his intention to do so at least six months before the rent review. This means that nullification of the PLA can be taken into account at the subsequent rent review.

Changes to Short Limited Duration Tenancies (SLDT) and Limited Duration Tenancies (LDT) The Order reduces the minimum term of a LDT from 15 years to 10 years. Furthermore, the Order also allows parties the opportunity to convert a five-year SLDT into a 10-year LDT. When converting the SLDT into a LDT the date of entry shall be deemed to be the date on which the SLDT started. This provides more flexibility for both Landlords and Tenants. However, Landlords should not idly allow a SLDT to become a LDT – as there are specific provisions relating to LDTs (for example, the ability of the Tenant to assign the tenancy) which do not apply to SLDTs. Fixed equipment

Article 9 of the Order states that within six months of the start of the SLDT or LDT a Landlord must provide ‘such fixed equipment as will enable the tenant to maintain efficient production’ in respect of the use of the land ‘as specified in the lease’. Unfortunately, this wording is not particularly clear. There is still some uncertainty regarding what fixed equipment is required.

A number of questions remain regarding the recent changes brought in by the Order. However, the changes have generally been welcomed by both Landlords and Tenants.

Andrew Ion, Brodies LLP

More agricultural law reform

Argyll and Bute Council seeks to limit croft creation

The Crofting Reform Etc (Scotland) Act 2007 brought in new provisions allowing landowners to create new crofts on their land. In some rural areas, the ability to build croft houses on the newly crofted land has proved to be an alternative source of affordable housing. Argyll and Bute Council has now launched a consultation on proposals seeking to limit this, as it is concerned that increasing numbers of croft houses may put pressure on the environment. In its draft proposals, it intends to prohibit the construction of new houses (including croft houses) within a 10-mile zone around principal towns and in scenic areas. This could potentially have a significant impact on croft creation in Argyll and Bute.

Reassurance on renewables funding for farmers

OFGEM and the Department for Energy and Climate Change (DECC) have confirmed that farmers may apply for funding of up to €200,000 (£175,860) available under the Feed-In Tariffs (FITs) regulations. It had previously been feared that European rules on ‘state aid’ would disqualify farmers from receiving FITs where they already claim other public subsidies. As nearly all farmers claim some sort of public subsidy (such as the Scottish Rural Development Programme, Single Farm Payments, and housing improvement grants), this would have badly affected the large numbers who have enthusiastically embraced the FITs scheme to install their own small renewable energy generation facilities. However, OFGEM and DECC now say that FITs applications for up to €200,000 (£175,860) will benefit from an exemption to the state aid rules.

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Robin PriestleyAssociate & Editor0131 656 [email protected]

Andrew IonSenior Solicitor0131 656 [email protected]

Murray SoutarAssociate0131 656 [email protected]

Robert FormanAssociate0131 656 [email protected]

Alex BuchanPartner0131 656 [email protected]

David HouldsworthConsultant0131 656 [email protected]

Odell MilnePartner 0131 656 [email protected]


Crown Estate to invest in coastal communities

Key Contacts

The recent announcement by Westminster of its intention to create a coastal communities fund may have dealt a blow to the First Minister's plans for a full devolution of the Crown Estate in Scotland. However, it is likely to be the forecasted increase in marine development off the coast of Scotland which will prompt much debate about the Crown Estate's ownership of the seabed and foreshore and, more so, how the increased revenue stream derived from such ownership can be best used to benefit the people of Scotland.

The Crown Estate is a property portfolio owned by the Crown which includes, amongst other types of properties, the seabed surrounding the UK and over half the UK's foreshore. Although the Crown Estate belongs to the reigning monarch and is inherited with the throne, it is no longer his / her private property and cannot be bought or sold. Instead, upon accession to the throne, the monarch agrees to surrender the revenue received from the Crown Estate in return for an annual grant. Historically, the surplus revenue, which is managed by the Crown Estate Commissioners, was paid each year to HM Treasury, but the creation of the new fund from half the money raised by the Crown Estate from marine sources will see £1.85 million made available to the Highlands and Islands and £2.05 million to the rest of Scotland, with similar funds made available separately to England, Wales and Northern Ireland. The other 50% of money raised from marine sources will continue to go to the Treasury to fund UK services.

The forecasted increase in marine development includes the construction of offshore wind farms and wave power sites and will increase the surplus revenue available to the Treasury, mainly through the Crown Estate's ability to lease large parts of the foreshore and seabed. Historically Scotland has benefited from the surplus revenue through services to the UK as a whole but the creation of the coastal communities fund will, for the first time, provide the people of Scotland with a direct benefit from revenue raised in Scotland.

It is argued by the Scottish Government that although a step in the right direction, the new fund does not go far enough and the figures announced are not a fair reflection of the benefit received by the Crown Estate from marine sources off the coast of Scotland.

The news of the creation of the coastal communities fund should be warmly received by the people of Scotland – but whether Scotland's share is sufficient and whether Scotland will become the ‘Saudi Arabia of renewable energy’, as hoped by the First Minister, will only become evident when the proposed marine development sites are up and running.

Murray Soutar, Brodies LLP

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