![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Administrative Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Bickford -Smith, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs [2013] EWHC 3371 (Admin) (04 November 2013) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2013/3371.html Cite as: [2013] EWHC 3371 (Admin) |
[New search] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
The Queen on the application of Imogen Bickford-Smith |
Claimant |
|
- and - |
||
The Secretary of State for Environment, Food and Rural Affairs |
Defendant |
____________________
Ms Sarah Ford (instructed by Treasury Solicitor) for the Defendant
Hearing date: 16/10/13
____________________
Crown Copyright ©
Mr Justice Sales :
Introduction and overview of the claim
The SPS regime
Decoupled income support
"Enhancing the competitiveness of Community agriculture and promoting food quality and environmental standards necessarily entail a drop in institutional prices for agricultural products and an increase in the cost of production for agricultural holdings in the Community. To achieve those aims and promote more market-oriented and sustainable agriculture, it is necessary to complete the shift from production support to producer support by introducing a system of decoupled income support for each farm. While decoupling will leave actual amounts paid to farmers unchanged, it will significantly increase the effectiveness of the income aid. It is, therefore, appropriate to make the single farm payment conditional upon cross-compliance with environmental, food safety, animal health and welfare, as well as the maintenance of the farm in good agricultural and environmental condition." (emphasis added)
" 'farmer' means a natural or legal person, or a group of natural or legal persons, whatever legal status is granted to the group and its members by national law, whose holding is situated within Community territory … and who exercises an agricultural activity, …"
" 'agricultural activity' means the production, rearing or growing of agricultural products including harvesting, milking breeding animals and keeping animals for farming purposes, or maintaining land in good agricultural and environmental condition as established under Article 5." (emphasis added)
"1. A farmer receiving direct payments shall respect the statutory management requirements referred to in Annex III, according the timetable fixed in that Annex, and the good agricultural and environmental condition established under Article 5." (emphasis added)
"Good agricultural and environmental condition
1. Member States shall ensure that all agricultural land, especially land which is no longer used for production purposes, is maintained in good agricultural and environmental condition. Member States shall define, at national or regional level, minimum requirements for good agricultural and environmental condition on the basis of the framework set up in Annex IV, taking into account the specific characteristics of the areas concerned, including soil and climatic condition, existing farming systems, land use, crop rotation, farming practices, and farm structures. This is without prejudice to the standards governing good agricultural practices as applied in the context of Council Regulation (EC) No 1257/1999 and to agri-environment measures applied above the reference level of good environmental practices."
The historic element of the SPS scheme
"Eligibility
1. Farmers shall have access to the single payment scheme if:
(a) they have been granted a payment in the reference period referred to in Article 38 under at least one of the support schemes referred to in Annex VI, or(b) they have received the holding or part of the holding, by way of actual or anticipated inheritance, by a farmer who met the conditions referred to in point (a), or(c) they have received a payment entitlement from the national reserve or by transfer."
"Application
1. The first year of application of the single payment scheme, the competent authority of the Member State shall send an application form to the farmers referred to in Article 33(1)(a) indicating:
(a) the amount referred to in Chapter 2 (hereinafter referred to as the 'reference amount');(b) the number of hectares referred to in Article 43;(c) the number and value of payment entitlements as defined in Chapter 3.
2. Farmers shall apply to the single payment scheme by a date, to be fixed by Member States, but not later than 15 May.
However, the Commission, in accordance with the procedure referred to in Article 144(2), may allow the date of 15 May to be postponed in certain zones where exceptional climatic conditions render the normal dates inapplicable.
3. Except in case of force majeure and exceptional circumstances within the meaning of Article 40(4), no entitlements shall be allocated to farmers referred to in Article 33(1)(a) and (b) and to those who receive payment entitlements from the national reserve, if they do not apply to the single payment scheme by 15 May of the first year of application of the single payment scheme.
The amounts corresponding to those entitlements not allocated shall revert to the national reserve referred to in Article 42 and shall be available for reallocation by a date to be fixed by the Member State but not later than 15 August of the first year of application of the single payment scheme." (emphasis added)
"Determination of the payment entitlements
1. Without prejudice to Article 48, a farmer shall receive a payment entitlement per hectare which is calculated by dividing the reference amount by the three-year average number of all hectares which in the reference period gave right to direct payments listed in Annex VI.
The total number of payment entitlements shall be equal to the above mentioned average number of hectares.
…
2. The number of hectares referred to in paragraph 1 shall further include:
…
(b) all forage area in the reference period.
3. For the purpose of paragraph 2(b) of this Article, 'forage area' shall mean the area of the holding that was available throughout the calendar year, in accordance with Article 5 of Commission Regulation (EC) No 2419/2001 (1), for rearing animals including areas in shared use and areas which were subject to mixed cultivation.
…
4. The payment entitlements per hectare shall not be modified save as otherwise provided."
"Calculation of the reference amount
1. The reference amount shall be the three-year average of the total amounts of payments, which a farmer was granted under the support schemes referred to in Annex VI, calculated and adjusted according to Annex VII, in each calendar year of the reference period referred to in Article 38."
The requirement to declare eligible hectares
"The overall amount to which a farm is entitled should be split into parts (payment entitlements) and linked to a certain number of eligible hectares to be defined, in order to facilitate transfer of the premium rights. To avoid speculative transfers leading to the accumulation of payment entitlements without a corresponding agricultural basis, in granting aid, it is appropriate to provide for a link between entitlements and a certain number of eligible hectares, as well as the possibility of limiting the transfer of entitlements within a region. Specific provisions should be laid down for aid not directly linked to an area taking into account the peculiar situation of sheep and goat rearing." (emphasis added)
"Payment
1. Aid under the single payment scheme shall be paid in respect of payment entitlements as defined in Chapter 3, accompanied by an equal number of eligible hectares as defined in Article 44(2)."
"Use of payment entitlements
1. Any payment entitlement accompanied by an eligible hectare shall give right to the payment of the amount fixed by the payment entitlement.
2. 'Eligible hectare' shall mean any agricultural area of the holding taken up by arable land and permanent pasture except areas under permanent crops, forests or used for non agricultural activities.
3. The farmer shall declare the parcels corresponding to the eligible hectare accompanying any payment entitlement. Except in case of force majeure or exceptional circumstances, these parcels shall be at the farmer's disposal for a period of at least10-months, starting from a date to be fixed by the Member State, but not earlier than 1 September of the calendar year preceding the year of lodging the application for participation in the single payment scheme.
4. Member States may, in duly justified circumstances, authorise the farmer to modify his declaration on condition that he respects the number of hectares corresponding to his payment entitlements and the conditions for granting the single payment for the area concerned." (emphasis added)
The flat rate element of the SPS scheme
"1. A Member State may decide, by August 2004 at the latest, to apply the single payment scheme provided for in Chapters 1 to 4 at regional level under the conditions laid down in this Section."
"Regionalisation of the single payment scheme
1. In duly justified cases and according to objective criteria the Member State may divide the total amount of the regional ceiling established under Article 58 or part of it between all farmers whose holdings are located in the region concerned, including those who did not meet the eligibility criterion referred to in Article 33.
2. In the case of division of the total amount of the regional ceiling, farmers shall receive entitlements, whose unit value is calculated by dividing the regional ceiling established under Article 58 by the number of eligible hectares, within the meaning of Article 44(1), established at regional level.
3. In case of partial division of the total amount of the regional ceiling, farmers shall receive entitlements whose unit value is calculated by dividing the corresponding part of the regional ceiling established under Article 58 by the number of eligible hectares, within the meaning of Article 44(2), established at regional level.
…
4. The number of entitlements per farmer shall be equal to the number of hectares he declares in accordance with Article 44(2) the first year of application of the single payment scheme, except in the case of force majeure or exceptional circumstances within the meaning of Article 40(4)." (emphasis supplied)
"3. By way of derogation from Articles 43(4) and 49(3), Member States may also decide, by 1 August 2004 at the latest, and acting in compliance with the general principle of Community law, that entitlements established under this section shall be subject to progressive modifications according to pre-established steps and objective criteria."
The National Reserve
"National reserve
1. Member States shall, after any possible reduction under Article 41(2), proceed to a linear percentage reduction of the reference amounts in order to constitute a national reserve. This reduction shall not be higher than 3 %.
2. The national reserve shall further include the difference between the ceiling referred to in Annex VIII and the sum of the reference amounts to be granted to farmers under the single payment scheme, before the reduction referred to in paragraph 1 second sentence.
3. Member States may use the national reserve to grant, in priority, reference amounts to farmers who commence their agricultural activity after 31 December 2002, or in 2002 but without receiving any direct payment in that year, according to objective criteria and in such a way as to ensure equal treatment between farmers and to avoid market and competition distortions.
4. Member States shall use the national reserve for the purpose of establishing, according to objective criteria and in such a way as to ensure equal treatment between farmers and to avoid market and competition distortions, reference amounts for farmers finding themselves in a special situation, to be defined by the Commission in accordance with the procedure referred to in Article 144(2).
5. Member States may use the national reserve for the purpose of establishing, according to objective criteria and in such a way as to ensure equal treatment between farmers and to avoid market and competition distortions, reference amounts for farmers in areas subject to restructuring and/or development programs relating to one or the other form of public intervention in order to avoid abandoning of land and/or in order to compensate specific disadvantages for farmers in those areas.
6. In application of paragraphs 3 to 5 Member States may increase the unit value, within the limit of the regional average of the value of entitlements, and/or the number of entitlements allocated to farmers.
7. Member States shall proceed to linear reductions of the entitlements in case their national reserve is not sufficient to cover the cases referred to in paragraphs 3 and 4.
8. Except in case of transfer by actual or anticipated inheritance and by way of derogation from Article 46, the entitlements established using the national reserve shall not be transferred for a period of five years starting from their allocation.
By way of derogation from Article 45(1), any entitlement which has not been used during each year of the five year period shall revert immediately to the national reserve.
9. By way of derogation from Articles 33 and 43, in case of sale or lease for six or more years of the holding or part of it or premium rights in the reference period or not later than 29 September 2003, part of the entitlements to be allocated to the seller or the lessor may revert to the national reserve under conditions to be defined by the Commission, in accordance with the procedure referred to in Article 144(2)." (emphasis added)
Regulation 73/2009
"Payment entitlements
1. Support under the single payment scheme shall be available to farmers if they:
(a) hold payment entitlements which they have obtained in accordance with Regulation (EC) No 1782/2003;(b) obtain payment entitlements under this Regulation:(i) by transfer;(ii) from the national reserve;(iii) pursuant to Annex IX;(iv) pursuant to Article 47(2), Article 59, the third subparagraph of Article 64(2), Article 65 and Article 68(4)(c).
2. For the purpose of Article 47(2), Article 57(6), Article 64(2) and Article 65, a farmer is considered to be holding payment entitlements where payment entitlements have been allocated or definitively transferred to him. …"
"Activation of payment entitlements per eligible hectare
1. Support under the single payment scheme shall be granted to farmers upon activation of a payment entitlement per eligible hectare. Activated payment entitlements shall give a right to the payment of the amounts fixed therein.
2. For the purposes of this Title, 'eligible hectare' shall mean:
(a) any agricultural area of the holding, and any area planted with short rotation coppice (CN code ex 0602 90 41) that is used for an agricultural activity or, where the area is used as well for non-agricultural activities, predominantly used for agricultural activities; …"
"National reserve
1. Each Member State shall operate a national reserve that incorporates the difference between:
(a) the national ceilings determined in Annex VIII to this Regulation; and(b) the total value of all allocated payment entitlements and the ceilings fixed in accordance with Article 51(2) and Article 69(3) of this Regulation, or, for 2009, the ceilings fixed in accordance with Article 64(2) of Regulation (EC) No 1782/2003.
2. Member States may use the national reserve to allocate, as a matter of priority, in accordance with objective criteria and in such a way as to ensure equal treatment between farmers and to avoid market and competition distortions, payment entitlements to farmers who commence their agricultural activity.
3. Member States not applying Article 68(1)(c) may use the national reserve for the purpose of establishing, in accordance with objective criteria and in such a way as to ensure equal treatment between farmers and to avoid market and competition distortions, payment entitlements for farmers in areas subject to restructuring and/or development programmes relating to one or other form of public intervention in order to ensure against land being abandoned and/or to compensate farmers for specific disadvantages in those areas.
4. Member States shall use the national reserve for the purpose of allocating, in accordance with objective criteria and in such a way as to ensure equal treatment between farmers and to avoid market and competition distortions, payment entitlements to farmers placed in a special situation, to be defined by the Commission in accordance with the procedure referred to in Article 141(2).
5. When applying this Article, Member States may increase the unit value and/or the number of payment entitlements allocated to farmers." (emphasis added)
"Establishment of payment entitlements
1. Where a Member State makes use of the options provided for in Article 41(2) and (3) of Regulation (EC) No 73/2009, farmers may receive, in accordance with the conditions laid down in this Section and in accordance with the objective criteria laid down by the Member State concerned, payment entitlements from the national reserve.
2. When a farmer who does not own any payment entitlement applies for payment entitlements from the national reserve, he may receive a number of payment entitlements not higher than the number of hectares he holds (owned or leased) at that time.
3. When a farmer who own payment entitlements applies for payment entitlements from the national reserve, he may receive a number of payment entitlements not higher than the number of hectares he holds for which he does not own any payment entitlement.
The unit value of each payment entitlement he already owns may be increased. …"
"Unused payment entitlements
Any payment entitlement which has not been activated in accordance with Article 34 for a period of two years shall be added to the national reserve, except in the case of force majeure or exceptional circumstances. However, for 2009, payment entitlements not activated for the two-year period 2007-2008 shall not be added to the national reserve if they were activated in 2006 and, for 2010, payment entitlements not activated for the two-year period 2008-2009 shall not be added to the national reserve if they were activated in 2007."
The allocation of entitlement hectares in respect of common land
"General principles in respect of agricultural parcels
…
2. With regard to forage area:
(a) where a forage area is used in common, the competent authorities shall notionally allocate it between the individual farmers in proportion to their use or right of use of it; …"
"Determination of areas
…
5. Where an area is used in common, the competent authorities shall notionally allocate it between the individual farmers in proportion to their use or right of use of it. …"
Implementation of the SPS in England
Once-and-for-all allocation of payment entitlements
"Applicants to the Scheme must make an application for entitlements, otherwise they could lose it for good."
The value of payment entitlements
"The Single Payment Scheme is a new Scheme that came into operation from 1 January 2005. It breaks the link between farm subsidies and production and replaces ten farm subsidies. It is an area based scheme (one eligible hectare = one entitlement) and Ministers recognised that adapting to the system would take some time. A transitional period will therefore operate between 2005 and 2012. Entitlements must be established in 2005, there will not be a second chance. A farmer who claimed subsidies in the years 2000, 2001 and 2002 will be eligible to receive a historic element of payment along with a flat rate payment. The historic element decreases as the flat rate element increases, year by year, so each farmer's subsidy payment under the Single Payment Scheme will reflect that farmer's individual circumstances. The full flat rate payment of around £200-220 per entitlement (before deduction) becomes payable in 2012 in respect of eligible English land, outside the upland Seriously Disadvantaged Area."
The SPS and the New Forest
"The method for allocating a notional area of the New Forest common under the Single Payment Scheme has been agreed. Defra ministers have decided that the fairest and simplest way is to allocate one eligible hectare of common land for each livestock unit grazed in the Forest in the 12 month period immediately preceding the date of this announcement (1 adult cow = 1 Livestock Unit; 1 pony = 0.6 Livestock Unit)."
"If you are claiming New Forest common rights, you must supply a photocopy of valid marking fee receipt(s) to support your claim. A valid receipt is one that is signed by an agister [an official of the Verderers of the New Forest]. The receipt should show that marking fees have been paid for a period that includes 15 May."
"If you are using New Forest common rights to support your application and you are increasing your rights or have new rights, you must give us a copy of a valid marking fee receipt. A valid receipt is one that has been signed by an agister. The receipt should show that marking fees have been paid for a period up to and including the current year's application deadline. If your application has not changed from previous years and the previous receipt covers 15 May 2012 you do not need to provide a further marking fee receipt."
"Continued qualification of commoners for Single [Farm] Payment Scheme. DEFRA has confirmed that claims by commoners who registered their entitlement for the Single Payment Scheme in 2004, are not dependent on the number of animals they turn out, as they will continue to be entitled to the allocation they claimed in the first year of the Scheme. However, this is subject to claimants continuing to qualify as 'farmers'."
"Single payment scheme and the New Forest
Thank you for your letter of 2 March 2006 in response to my letter of the 2 October 2005 in which you request clarification on the future eligibility of commoners for the Single Payment Scheme (SPS) for 2006 onwards.
I can confirm such eligibility is not dependant on the number of animals that commoners depasture each year. However, they will be required to meet the other conditions of the SPS where they are relevant including being a farmer (for the purposes of the scheme), maintaining land in good agricultural and environmental condition and having sufficient land at their disposal (including via common rights) for a 10 month period each scheme year to support the number of SPS entitlements [they] hold and wish to claim on in a particular scheme year.
Given that it is not possible to calculate a notional area of common land in the New Forest at the disposal of any individual farmer, every commoner will be considered to have the New Forest at his disposal up to the number of entitlements he claims in relation to the common, regardless of the number of animals he grazes on it. However, we will need to reconsider this approach if the total number of entitlements claimed exceeds the total eligible area of the common.
The establishment of SPS entitlements in 2005 was an "one-off" process (with a few exceptions primarily related to the National Reserve) and the number of entitlements an individual farmer allocated to an individual will not change unless that individual elects to trade entitlements with another farmer, revert back to the National Reserve through non-use or it is found that they were incorrectly allocated.
You also recently raised with me your concerns about the wording of the 2006 SPS scheme handbook issued by the Rural Payments Agency (RPA) in relation to the New Forest. I can confirm that while it is necessary for the claimant to satisfy the RPA that they qualify as a 'farmer' under the SPS and that one method of doing this is providing evidence that they have paid marking fees, it is not the only method.
However, I would also draw your attention to paragraph B12 of the 2006 scheme handbook which states that if an individual claimant is unable to prove that they qualify as a farmer they will not qualify under the SPS.
I can also confirm that the RPA have been asked to inform their staff not to automatically reject any New Forest claims where the number of entitlements being activated differs from the number of Livestock Units being grazed."
The Claimant's application for payment entitlements
The Claimant's SPS claim in 2012
The Claim Statement dated 3 December 2012
The Claimant's grounds of challenge
Alleged anomalies
The National Reserve
i) To farmers who commence their agricultural activity;
ii) To farmers finding themselves in a 'special situation' as defined by the Commission pursuant to a particular procedure; and
iii) To farmers in areas subject to restructuring and/or development programs relating to one or other form of public intervention in order to ensure against land being abandoned and/or to compensate farmers for specific disadvantages in those areas.
Conclusion