Problem:

Trespass has long been an issue for landowners and lawful occupiers.

This issue has become an area of focus in lockdown as people have been restricted on permitted activities and travel, leading in many cases to reports of more trespass issues and greater numbers of people on the land.

Use of proper public rights of way is not the issue but often requires management.

Unmanaged trespass can cause several issues, such as:

• creation of new, permanent, unwanted public rights of way,
• incurring significant costs disputing the creation of new public rights of way,
• negative impacts on property values,
• danger to livestock and the trespassers,
• damage to crops and livestock,
• interference with sporting rights,

Solution:

Management of property and public rights of way is an ongoing task. There is no silver bullet but several tools are available to landowners to manage this issue.

To help avoid the creation of a new public rights of way and commons it is necessary to prevent 10 years use of the proposed new public right of way or common, “as of right”.

A useful tool to prevent 10 years’ use is through Section 31(6) of the Highways Act 1980 & Section 15A(1) of the Commons Act 2006. This allows a deposit to be made to the local highways authority which stops the clock on the ten year period.

Some authorities charge for this service. You will also need a good plan of the property showing the public rights of way.

It is a discreet (there is no signage on site to notify people of the designation) and cost effective way to help avoid the creation of public rights of way.

Other Tools to Consider:

Review the definitive map and statement with the local highways authority to better understand where public rights of way exist.

Signage also a useful tool to notify people of correct public rights of way routes and where no such public rights of way exist.

Keeping records of trespass events and asking unauthorised occupiers to leave.

Fisher German can:

• prepare the Section 31(6) of the Highways Act 1980 & Section 15A(1) of the Commons Act 2006 documentation,
• prepare an appropriate plan,
• manage the process of putting the declarations in place with the local highways authority, alongside other advisers if required.

It has long been possible to separate the surface interest in land from the mineral interest, something which was often done when estates were broken up or off-lying parts sold off and the mineral rights were retained by the estate.

However, as the registration of the mineral ownership has not been compulsory, unlike that of surface interests, a comprehensive record has been lacking. This is further complicated by the way the Land Registry has recorded mineral exceptions and ownership.  

Titles may state that the “mines and minerals are excepted from this title” or similar, but often it gives little or no clue as to who holds these rights. Even worse, the absence of this wording from a title does not prove that the surface owner also owns the mines and minerals beneath.  

Proving mineral ownership

Proving ownership of minerals, which commonly includes materials such as sand and gravel, limestone or granite, can be notoriously difficult.  The Land Registration Act 2002 dealt with manorial rights, which must have been recorded at the Land Registry by October 2013 or risk being lost. 

However, this process made no difference to the freehold mineral rights that many estates retained but have not registered, leaving it just as difficult to locate the historic owners as before.

Developers were therefore faced with two choices when they knew or believed that the minerals were in separate ownership from the surface. They could either seek to identify the mineral owner and negotiate rights to enable their development to proceed, or obtain title indemnity insurance cover in case the mineral owner came out of the woodwork in the future. 

The latter was the route of choice as it was cheaper, quicker, and removed the risk of lengthy negotiations. In many cases, no attempt at all was made to locate the mineral owner and as their rights were not recorded by the Land Registry there was no public record to search.

For the mineral owner in this event, the presence of an indemnity policy meant having to pursue a claim against an insurance provider after the development had taken place. Far better to be negotiating directly with the developer when they are chomping at the bit to start work.  

Land registry now accepting applications for minerals only titles

Fortunately, the Law Commission has now proposed to bring mines and minerals onto the register and while the final legislation is awaited, the Land Registry is accepting applications for mineral only titles. 

We would strongly urge estates to look at their historic sale conveyances and investigate if mineral rights were retained. It is something that could affect many estates which have sold off parcels of land over the previous century.

If it is found that mineral rights have been retained, we would recommend that these are registered to prevent developers protecting themselves with insurance and force them into a commercial negotiation to merge the interests with the original estate.  

Mortgage companies in particular can be very nervous about lending on residential properties where the minerals are separately held, so there is a commercial imperative for the developer to reach a deal. 

While every case is different, depending on the actual minerals to be found, the working rights retained and the development proposed, it can provide a useful source of income from an asset that has in most cases been completely forgotten about.  

We have worked with a number of estates to achieve value in this way, even where no commercial minerals are to be found and the working rights have been limited. Whatever the circumstance, there is likely to be a value if a development is proposed, and although timing is key to obtain this, getting the minerals registered is the first step.

Problem:

Trespass has long been an issue for landowners and lawful occupiers.

This issue has become an area of focus in lockdown as people have been restricted on permitted activities and travel, leading in many cases to reports of more trespass issues and greater numbers of people on the land.

Use of proper public rights of way is not the issue but often requires management.

Unmanaged trespass can cause several issues, such as:

• creation of new, permanent, unwanted public rights of way,
• incurring significant costs disputing the creation of new public rights of way,
• negative impacts on property values,
• danger to livestock and the trespassers,
• damage to crops and livestock,
• interference with sporting rights,

Solution:

Management of property and public rights of way is an ongoing task. There is no silver bullet but several tools are available to landowners to manage this issue.

To help avoid the creation of a new public rights of way and commons it is necessary to prevent 10 years use of the proposed new public right of way or common, “as of right”.

A useful tool to prevent 10 years’ use is through Section 31(6) of the Highways Act 1980 & Section 15A(1) of the Commons Act 2006. This allows a deposit to be made to the local highways authority which stops the clock on the ten year period.

Some authorities charge for this service. You will also need a good plan of the property showing the public rights of way.

It is a discreet (there is no signage on site to notify people of the designation) and cost effective way to help avoid the creation of public rights of way.

Other Tools to Consider:

Review the definitive map and statement with the local highways authority to better understand where public rights of way exist.

Signage also a useful tool to notify people of correct public rights of way routes and where no such public rights of way exist.

Keeping records of trespass events and asking unauthorised occupiers to leave.

Fisher German can:

• prepare the Section 31(6) of the Highways Act 1980 & Section 15A(1) of the Commons Act 2006 documentation,
• prepare an appropriate plan,
• manage the process of putting the declarations in place with the local highways authority, alongside other advisers if required.

It has long been possible to separate the surface interest in land from the mineral interest, something which was often done when estates were broken up or off-lying parts sold off and the mineral rights were retained by the estate.

However, as the registration of the mineral ownership has not been compulsory, unlike that of surface interests, a comprehensive record has been lacking. This is further complicated by the way the Land Registry has recorded mineral exceptions and ownership.  

Titles may state that the “mines and minerals are excepted from this title” or similar, but often it gives little or no clue as to who holds these rights. Even worse, the absence of this wording from a title does not prove that the surface owner also owns the mines and minerals beneath.  

Proving mineral ownership

Proving ownership of minerals, which commonly includes materials such as sand and gravel, limestone or granite, can be notoriously difficult.  The Land Registration Act 2002 dealt with manorial rights, which must have been recorded at the Land Registry by October 2013 or risk being lost. 

However, this process made no difference to the freehold mineral rights that many estates retained but have not registered, leaving it just as difficult to locate the historic owners as before.

Developers were therefore faced with two choices when they knew or believed that the minerals were in separate ownership from the surface. They could either seek to identify the mineral owner and negotiate rights to enable their development to proceed, or obtain title indemnity insurance cover in case the mineral owner came out of the woodwork in the future. 

The latter was the route of choice as it was cheaper, quicker, and removed the risk of lengthy negotiations. In many cases, no attempt at all was made to locate the mineral owner and as their rights were not recorded by the Land Registry there was no public record to search.

For the mineral owner in this event, the presence of an indemnity policy meant having to pursue a claim against an insurance provider after the development had taken place. Far better to be negotiating directly with the developer when they are chomping at the bit to start work.  

Land registry now accepting applications for minerals only titles

Fortunately, the Law Commission has now proposed to bring mines and minerals onto the register and while the final legislation is awaited, the Land Registry is accepting applications for mineral only titles. 

We would strongly urge estates to look at their historic sale conveyances and investigate if mineral rights were retained. It is something that could affect many estates which have sold off parcels of land over the previous century.

If it is found that mineral rights have been retained, we would recommend that these are registered to prevent developers protecting themselves with insurance and force them into a commercial negotiation to merge the interests with the original estate.  

Mortgage companies in particular can be very nervous about lending on residential properties where the minerals are separately held, so there is a commercial imperative for the developer to reach a deal. 

While every case is different, depending on the actual minerals to be found, the working rights retained and the development proposed, it can provide a useful source of income from an asset that has in most cases been completely forgotten about.  

We have worked with a number of estates to achieve value in this way, even where no commercial minerals are to be found and the working rights have been limited. Whatever the circumstance, there is likely to be a value if a development is proposed, and although timing is key to obtain this, getting the minerals registered is the first step.

Whilst a good period of spring weather will have allowed many arable enterprises to catch up with drilling, harvest 2020 is still likely to produce only average returns at best and, in many cases, cropping activities will barely show a surplus over subsidy receipts.

For businesses operating typical contract farming systems, the difference between crop margins after contract charges is stark and this is particularly true for oilseed rape which is becoming more and more difficult to grow successfully. The push towards a greater proportion of spring cropping in the rotation to help to control blackgrass is also, often producing poorer crop margins and some soil types just aren’t suitable for this cropping regime.

We see a number of contracting agreements where individual crop margins are not accurately recorded or reported. This clearly leads to a situation where the parties are unaware that certain crops consistently lose money or make very low margins. Historically, we have advised farmers and landowners running contract agreements to increase the area of rotational fallow to remove loss making crops from the rotation and to significantly improve work profiles but now, with the availability of good Countryside Stewardship scheme options we can improve on this dramatically.

Having managed a number of these options for three years in some cases, we have a good understanding of the establishment and annual maintenance costs involved and can illustrate the net margins available, we are then able to compare these against budgeted and actual crop margins.

The table below shows the expected net margin from a number of Rotational and Non-Rotational Countryside Stewardship options and the margin retained by the farmer from a number of combinable crops, after payment of the contractor’s fixed fee and typical split of divisible surplus. Owner occupiers will compare this given their own labour, power and machinery costs.

It shows very clearly that winter wheat is the only crop which can be expected to consistently outperform the available rotational options from a good Countryside Stewardship scheme. We see arable contracting arrangements which deliver better cropping margins than those below, but even those have “Cinderella” crops or are looking to find a reliable alternative to oilseed rape.

The three Rotational CSS options below produce reliable, competitive margins and, particularly in the case of GS4 and AB15, should improve soil fertility, structure and assist in blackgrass control.  All farms have some unproductive or difficult areas which are suited to non-rotational options, some of which are noted below. The financial argument for implementing a Countryside Stewardship agreement is very compelling even before one has considered the wildlife, environmental, and aesthetic benefits.

We have recently submitted a number of large CSS schemes on behalf of clients, two of which will provide gross income of over £250,000 per annum. We will be submitting further applications prior to this year’s deadline which we expect to generate a total of over £3,000,000 to the entrants over the five years.  In the main, Natural England have been extremely positive in dealing with applications but clearly, ongoing funding must be at risk given  the other current and future demands on government spending. Acting on this now would seem prudent.

Whilst devoting substantial areas of croppable land to non cropping activities might appear to be a difficult decision, uncertain crop prices caused by Brexit and the inevitable pressure from aggressive exporters to this country, a big question mark over oilseed rape as a reliable crop, the decline in availability or efficiency of blackgrass control chemicals and the known future reduction in Basic Payment receipts mean that a  CSS scheme must form part of any discussion on cropping plans going forwards. It must be remembered that these schemes are for five years and so, if the above uncertainties have been resolved and crop prices have risen substantially, businesses can increase their cropping areas again. A strategy of replacing poorer, marginal areas with non rotational options and reviewing your own break crop options and considering which rotational environmental options might provide better return is a good starting point. Along with the consideration of capital funding that might be available depending on your location and local target priorities.

The deadline for a Higher Tier application for this year has recently passed but, for Mid-Tier the date by which we must apply for an application pack is the end of June for electronic packs, and a submission must be completed and lodged by the end of July.

In considering the integration of a CSS scheme within an existing arable contract, there is an argument that some or all of the option income and costs should be included within the agreement. The rotational options particularly will require good establishment and maintenance if they are to provide maximum benefit and should have a positive impact on the rotation as a whole. If this principle is adopted, we would advise that the main terms of the contract are reviewed to reflect the changes in input required from the contractor, the importance to all parties that the scheme is compliant and the relatively certain nature of the income.

Similarly, we expect that future subsidies under ELMS will be substantially linked to mainstream farming activities such as cultivation techniques, protection and improvement of organic matter, prevention of soil erosion and water run-off and even fertiliser and agrochemical application rates. So optimising subsidy receipts will be closely linked to cropping decisions and systems. Therefore, to align all parties’ interests, the subsidy receipts and associated expenses should probably be included within the contract agreement. Again, the terms will need to be amended. The simplest arrangement would involve a farmer’s first charge to reflect the certainty of subsidy receipts.

Going forwards, there are a number of issues which farmers and landowners need to consider carefully and which may provide further opportunities.

Farming businesses will have to start to measure their carbon emissions and sequestration. We are working with a number of landowners to start to understand how to do this with some certainty. There will be opportunities to proactively improve the carbon balance for many farming businesses by such simple actions as establishing cover crops, implementing zero tillage, reducing nitrogen use, tree planting and using more grass in the rotation. Many businesses will be in a position to trade carbon credits when a formally recognised audit system is in place and indeed, an informal market already exists where individuals are seeking to offset travel emissions by paying farmers to establish crops with measurable carbon sequestration benefits.

Currently, we can assist farmers and landowners to measure the effect on carbon of implementing changes so that everyone can understand the measurable benefits of making these changes. Clearly this is not yet a perfect science, but many farmers and landowners want to make a start with what we have got and learn from the process rather than wait for a recognised system to develop. There are currently dozens of different carbon calculation tools available so we are a little way away from a single, recognised audit system for carbon in agriculture.

What is very clear though is that many of the CSS options noted above and the changes expected through ELMS will have a positive impact on a farm business’s net carbon position and also its ccological footprint; its natural capital and biodiversity resource are all areas that will be affected and with the right management improved.

Farmers and rural business owners could be able to recover thousands of pounds in over-paid Council Tax due to houses being valued incorrectly, particularly on houses associated with mixed use developments, such as farms, fisheries and rural business parks, which can often be overvalued. The owners and occupiers of these properties often have no idea they are overpaying tax to their Local Authority – and they can claim it back.

Properties under the banding system for Council Tax are assigned a band based on what their property was worth in 1991.Of course, this can lead to some widely inaccurate valuations that local authorities have not had the capacity to check or update. However, Fisher German is able to check properties to see if they are in an unfairly-high band with a few simple questions.

If we find evidence that a property has been overvalued, we will take this to the Valuation Office Agency (VOA), who will then send their findings to the Local Authority who will calculate the difference and refund the person named on the account. This saving is then backdated to whenever the occupier moved in. For example, a band reduction from G to F, backdated to April 1993, could mean a refund of around £6,000.The amount of money refunded could be substantial depending on the property, the initial banding and how long you have been the billpayer..

We have been successful in reducing several farmhouse Council Tax bands in the first half of 2020, due to us proving that they were overvalued in the first place. Brief details of each are:

Knutsford, Cheshire. Band G reduced to Band E. Refunded over £11,000

Glastonbury, Somerset. Band G reduced to Band E, and Band G reduced to Band F. Combined refund expected of over £16,000.

Okehampton, Devon. Band F reduced to Band D. Refund expected over £6,000.

To discuss this in more details, please call Stephen Buckingham on 07733 124553.

Problem:

Trespass has long been an issue for landowners and lawful occupiers.

This issue has become an area of focus in lockdown as people have been restricted on permitted activities and travel, leading in many cases to reports of more trespass issues and greater numbers of people on the land.

Use of proper public rights of way is not the issue but often requires management.

Unmanaged trespass can cause several issues, such as:

• creation of new, permanent, unwanted public rights of way,
• incurring significant costs disputing the creation of new public rights of way,
• negative impacts on property values,
• danger to livestock and the trespassers,
• damage to crops and livestock,
• interference with sporting rights,

Solution:

Management of property and public rights of way is an ongoing task. There is no silver bullet but several tools are available to landowners to manage this issue.

To help avoid the creation of a new public rights of way and commons it is necessary to prevent 10 years use of the proposed new public right of way or common, “as of right”.

A useful tool to prevent 10 years’ use is through Section 31(6) of the Highways Act 1980 & Section 15A(1) of the Commons Act 2006. This allows a deposit to be made to the local highways authority which stops the clock on the ten year period.

Some authorities charge for this service. You will also need a good plan of the property showing the public rights of way.

It is a discreet (there is no signage on site to notify people of the designation) and cost effective way to help avoid the creation of public rights of way.

Other Tools to Consider:

Review the definitive map and statement with the local highways authority to better understand where public rights of way exist.

Signage also a useful tool to notify people of correct public rights of way routes and where no such public rights of way exist.

Keeping records of trespass events and asking unauthorised occupiers to leave.

Fisher German can:

• prepare the Section 31(6) of the Highways Act 1980 & Section 15A(1) of the Commons Act 2006 documentation,
• prepare an appropriate plan,
• manage the process of putting the declarations in place with the local highways authority, alongside other advisers if required.

Farmers and rural business owners could be able to recover thousands of pounds in over-paid Council Tax due to houses being valued incorrectly, particularly on houses associated with mixed use developments, such as farms, fisheries and rural business parks, which can often be overvalued. The owners and occupiers of these properties often have no idea they are overpaying tax to their Local Authority – and they can claim it back.

Properties under the banding system for Council Tax are assigned a band based on what their property was worth in 1991.Of course, this can lead to some widely inaccurate valuations that local authorities have not had the capacity to check or update. However, Fisher German is able to check properties to see if they are in an unfairly-high band with a few simple questions.

If we find evidence that a property has been overvalued, we will take this to the Valuation Office Agency (VOA), who will then send their findings to the Local Authority who will calculate the difference and refund the person named on the account. This saving is then backdated to whenever the occupier moved in. For example, a band reduction from G to F, backdated to April 1993, could mean a refund of around £6,000.The amount of money refunded could be substantial depending on the property, the initial banding and how long you have been the billpayer..

We have been successful in reducing several farmhouse Council Tax bands in the first half of 2020, due to us proving that they were overvalued in the first place. Brief details of each are:

Knutsford, Cheshire. Band G reduced to Band E. Refunded over £11,000

Glastonbury, Somerset. Band G reduced to Band E, and Band G reduced to Band F. Combined refund expected of over £16,000.

Okehampton, Devon. Band F reduced to Band D. Refund expected over £6,000.

To discuss this in more details, please call Stephen Buckingham on 07733 124553.