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CAAV News - 2020

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Jeremy's Blog 9th July 2020: Dispute Resolution

10 July 2020

This article by Jeremy Moody first appeared in the CAAV e-Briefing of 9th July 2020.

Much of members’ work is about advising and negotiating for parties to achieve an agreement.  Sometimes it needs a third party to help them or to decide the matter.  That is dispute resolution.  That help may come from early neutral evaluation or from a mediator; the answer may come from an expert or an arbitrator.
 
With the Agriculture Bill’s proposal for the President of the CAAV to have statutory status for tenancy arbitration appointments in England and Wales, encouraged by the views of farming and landowning organisations, we have used much time this spring to develop the CAAV’s approach to dispute resolution in general as:

  • broader than arbitration, covering all approaches
  • broader than agricultural tenancies, across the rural economy
  • broader than England and Wales, across the United Kingdom

This is not only about those resolving disputes but also those advising parties, advocates and expert witnesses, and, prior to that, those in negotiations, all acting as professionals to help businesses and people find answers that allow life to move on.
 
However and prompted by the immediate need to respond to the Bill, the CAAV has been looking particularly at refreshing arbitration, to ensure it is held in proper regard as a means to help parties have matters settled.
 
Yesterday’s CAAV Council, with 51 members in a Zoom call for 6 hours, approved the results of that work, including:

  • the CAAV Dispute Resolution Charter
  • Appropriate Arbitration, setting out the CAAV’s approach and the tools that an arbitrator can have under the relevant Arbitration Act to act robustly to reach a fair, timely and cost-effective answer
  • now asking for applications to join the CAAV’s Panel of Arbitrators - the form and guidance for this very shortly available
  • seeking interest from those who would like to prepare to be an arbitrator or have other roles in dispute resolution.

A full Numbered Publication, Rural Arbitration in the United Kingdom, is to follow to sit with Means of Dispute Resolution and Mediation.
 
Preparing to be ready for the Bill, we are now moving to have a Panel of Arbitrators, later one of Mediators.  With the first step as the webinar on 16th July on Dispute Resolution, we are now looking at promotion and training to support this work, from utilities disputes to business contracts, which we see as ripe for members. For more details about the Dispute Resolution in the Countryside Webinar and to book, please go to the Events page on the website.

Green Homes Grant

07 July 2020

It is being widely reported in the press that tomorrow (8th July) Chancellor Rishi Sunak will announce a Green Homes Grant, which will offer grants to homeowners to improve insulation in their property. We will provide further briefing to members when full details are known.

Jeremy's Blog 2/7/2020: Planning for Recovery

03 July 2020

This article by Jeremy Moody first appeared in the CAAV e-Briefing of 2nd July 2020.

The interruption to public life and the economy created by the pandemic is now both a prompt and political cover for change in the planning system that would be more controversial in other circumstances.  The Government is beginning to set out its recovery programme, with measures to keep current development moving, to enable change and soon more detail as to how infrastructure and major change in planning will be driven. 

In a Bill taking just a day in the Commons, many English planning permissions that expiring this year are now to be extended to 1st April 2021.  Scotland has already provided for extensions.

Permitted development rights were introduced to stop the detailed planning control system created in 1947 from clogging up with minor applications (and make it more politically palatable).  In the teeth of suspicious planners, they have been much expanded – as by Class Q’s residential conversion of agricultural buildings and equivalent, more controversial rights for offices and other property. 

They are now being widened in England to allow:

  • much existing commercial property, including newly vacant shops but not pubs or village shops, to be changed to residential use
  • many types of retail premises to be converted to cafes or offices
  • the demolition of vacant and redundant residential and commercial buildings to be replaced with houses
  • more rights to add space above properties.

In aiding the re-use of existing sites for housing, these respond to this year’s acceleration of deep changes in property markets, especially for much retail and many high streets, encouraging much private investment as markets drive change that local political processes might find hard. 

The promised planning White Paper seems imminent with talk of a more fundamental move towards zoning for planning.  Measures might seek to drive land on to the market, develop more land value capture and perhaps pick up the Letwin report’s proposal for New Town type approaches to larger housing development.  Equally, the Environment Bill would require biodiversity net gain from development in England, while there may be more National Parks.   

Alongside planning, Project Speed is to accelerate the £640bn of infrastructure intended over the next five years with changes possibly more radical than the Prime Minister’s attack on “newt counting delays”.  A majority Government with four years to go and an economy to revive may have that rare moment to make changes that would otherwise not be possible.

NEW PODCAST - Unlocking Development

03 July 2020

The Prime Minister has set out his vision for investment in the economy to help the UK “build back better” after the Covid-19 pandemic. In this episode, Jeremy Moody discusses how the government is eager to unlock development through reforms to the planning system and investment in infrastructure.

Also available on AppleSpotify and Google Podcasts

Catch-up on previous episodes here

Government agrees to establish a Trade and Agriculture Commission

01 July 2020

Secretary of State for International Trade, Liz Truss, has announced that the Government will establish a Trade and Agriculture Commission to make recommendations for agricultural trade policy, higher animal welfare standards and export opportunities for UK agriculture. The announcement was made on Twitter and reported on the NFU website

Announcing our next Webinar – Dispute Resolution in the Countryside

01 July 2020

CAAV Webinar - Dispute Resolution in the Countryside

Thursday, 16th July 2020

10:15am – 11:30am

Agricultural and other business disputes need cost effective, timely and practical answers.  The courts are clogged and expect people to find other answers. 

With the Agriculture Bill, the CAAV is preparing for its President to appoint arbitrators in tenancy disputes with their considerable powers under the Arbitration Act.  That brings the work of presenting clients’ arguments or in being an expert witness  The CAAV sees this as a larger opportunity to refresh rural dispute resolution and in this webinar Jeremy Moody will provide an overview of arbitration, expert determination and mediation – with blends like med-arb – as well as providing guidance on avoiding disputes by clear thinking, good negotiation and the use of early neutral evaluation. 

Price

The Ticket Price is £45 plus VAT (£54)

Registration

Book here: https://www.eventbrite.co.uk/e/caav-webinar-dispute-resolution-in-the-countryside-tickets-111957285254

 

Prime Minister's Speech on the Economy

30 June 2020

The Prime Minister has made a speech setting out an ambitious programme to drive the economy forward in the recovery from the Covid-19 pandemic. In it he pledged to tackle investment in schools and hospitals, build flood defences and plant 30,000 ha of trees per year and to invest in transport infrastructure, including a study of transport links to the four countries of the United Kingdom. The Government press release can be found on the GOV.UK website

Jeremy's Blog 25th June 2020: Business Review

26 June 2020

This article by Jeremy Moody first appeared in the CAAV e-Briefing of 25th June 2020

UK agriculture typically earns some £22 billion from food production and draws some £3 billion in subsidies with an ex-subsidy surplus of £1 to £2 billion. 

Looking more closely, of that £22 billion of farming’s commercial activity, in descending order:

  • almost 20 per cent comes from dairying with BPS equal to 6% of sales
  • almost 20 per cent from grazing livestock with BPS equal to 34% of sales
  • some 15 per cent from horticulture with almost no BPS
  • some 15 per cent from cereals with BPS equal to 22% of sales
  • almost 15 per cent from poultry with BPS with almost no BPS
  • some 13 per cent from general cropping with BPS equal to 7% of sales
  • about 6 per cent from pigs with BPS equal to 1% of sales.

Those figures, with great differences between individual farms, frame the different potential impacts of the trade negotiations underway with the EU and others.  Alongside tariffs, these concern complex and critical regulatory issues that may be more important and harder to resolve than tariffs for some sectors. Importing sectors like dairy and horticulture might benefit but the risks to sectors with significant exports are clear.

For a generation, area payments have fed into costs and protected business structures that will come under challenge as Basic Payment erodes and goes, starting in England next year.  Many of those farmers who talk of England’s proposed ELMS as a new label on the same income stream are likely to be disappointed by its timing and its lower financial margin.  When available, it may prove an opportunity for some but it will be a contract of “something for something”, involving wanting cost and change in providing public goods for public money.

With the challenge of creating a more profitable and competitive sector, we are inevitably driven back to the work of the Agricultural Productivity Task Force now meeting again.  Its report, published in February, focussed on data, knowledge exchange, innovation, skills and rural infrastructure; that last including the CAAV’s work on enabling proficient people to have access to land. 

Ultimately this is for farm level decisions.  The CAAV is supporting members’ work in helping clients understand and review their businesses.  Reviewing a Business was published in December and we are now going ahead with the deferred Business Review Conference, as a virtual event, on July 27th - details published shortly.  

Tribunals - advice and guidance during Covid-19

23 June 2020

Advice and guidance on how the Tribunals across the UK are dealing with cases during the Covid-19 restrictions is available online. This includes information for applicants on how to submit applications during the restrictions and what level of service is currently being supported. In most cases there are likely to be delays in acknowledging and handling applications while most staff are still not working in their usual offices. The use of email is encouraged rather than post.

For England and Wales, the latest guidance for the Upper Tribunal Lands Chamber and the First Tier Tribunal Property Chamber (which includes the Agricultural Land and Drainage division) is available on the Judiciary website.

The Lands Tribunal for Scotland has coronavirus information here.

For information on the Lands Tribunal of Northern Ireland, go to the Judiciary NI website.

Jeremy's Blog 18th June 2020: Towards Better Arbitration

19 June 2020

 

This article by Jeremy Moody first appeared in the CAAV e-Briefing of 18th June 2020

The Agriculture Bill, moving to its Committee stage in the House of Lords, means that the CAAV is working to be ready for the President’s role as a statutory appointer of arbitrators under the 1986 and 1995 Acts.  That work is also looking more broadly at all forms of dispute resolution, with a wider application than tenancies and across the United Kingdom.  The aim is a service to the rural economy that will enhance what agricultural valuers can do to achieve better answers for their clients.

From Inheritance Tax cases and direct payments to tenancy and planning issues, agricultural valuers are needed to assist clients on a path that can lead from an initial issue through negotiation to full blown dispute resolution, whether arbitration, expert determination, tribunal or court and with or without mediation.  All stages need facts assembled and analysed for effective arguments to be developed.    

This is not only about “dispute resolvers” – whether arbitrators, experts or mediators.  Much more professional work is involved in advising, acting for and representing clients throughout that path from negotiation to resolution.   Competence and confidence in that are as substantial a service as having good arbitrators. 

Many will feel their real successes were in achieving a good answer without a dispute, through careful preparation, realistic assessment and good presentation.  However, where a dispute arises, a well-prepared case with good evidence, drafted so that an independent third party has the material to be able to find for the client, is more likely to succeed.  The Charnley IHT case showed that a good argument (he was “farming the land using my animals”) backed by solid evidence, there from witnesses of fact, will count.

The expert witness is a privileged and responsible central figure in this process; privileged because evidence is normally limited to facts, not opinions, and responsible with the expert’s duty to provide professional opinion founded on skill and experience to the tribunal and the process, not the client.  

Recent cases have shone a spotlight on this role.  Better reported ones, such as Carr v Evelyn where the expert’s role was penalised with indemnity costs, highlight failure.  Others, more quietly as in Stubbins, see a CAAV Fellow tested by “rigorous” examination give “accurate” and “appropriate” assistance to the court.   We see the courts setting a professional standard for a professional job and members able to fulfil that.

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