PLANNING: Recent Appeal cases of relevance to Farmers

There are two recent appeal decisions (made by Government appointed Inspectors at Hearings) that perfectly demonstrate that to succeed in getting planning permission for a residential use in the countryside (on appeal or otherwise), it is essential to make sure that the right good quality information is put forward as evidence to satisfy the need and viability tests set out in Planning Policy Statement 7 (PPS7).

The first decision concerned a farm in Somerset, where the appellant persuaded the Inspector to grant a temporary three year planning permission to site a mobile home on the farm to house an agricultural worker.

The farm had been run as a dairy unit by the same family for four generations, and the appellant lived in the farmhouse with his family. The proposal for the mobile home came about as the appellant intended to change his farming practices to develop a suckler herd of 260 beef animals.

The Inspector agreed with the appellant that the enterprise was planned on "a sound financial basis" (i.e. that it was viable) and that the appellant would need help running it, particularly in times of emergency, birthing and illness. Due to the fact that the unit would have a large number of animals and that the cows would calve throughout the year, the Inspector said that it was reasonable for the appellant to require a farm worker to reside on site (i.e. that there was a functional need for the temporary accommodation).

The second decision concerned a 'clean boot' hunting operation (i.e. one where hounds follow a human scent laid by a runner) in the Peak District. The Inspector was satisfied that the hunt comprised a rural-based enterprise to which PPS 7 applied.

The appellant's proposal was to convert the first floor of a barn to provide accommodation for staff serving the hunt.

The hunt dogs (bloodhounds) had been looked after by a non-resident kennel hand since 2004, but it was acknowledged by the Inspector that problems had arisen overnight with the dogs. In particular, sudden illnesses and injuries occurred and the introduction of new dogs required careful managing to avoid stress and fighting amongst the dogs. In which case, the Inspector was persuaded that there was a functional need for staff to reside on site to be on hand day and night in case the dogs required essential care at short notice, and therefore granted planning permission for conversion of the barn. The Inspector noted that the enterprise was a not-for-profit organisation, but as it had been run effectively for more than 8 years, she was satisfied that the enterprise was financially sound.

For further information, contact Tom McPhie

LITIGATION: Warning to farmers following recent legal ruling

A legal ruling in July found a farmer liable to compensate a walker who suffered serious injuries when she was attacked by cattle as she crossed a field. Shirlie McKaskie was left confined to a wheelchair and severely brain damaged after she walked with her dog and unknowingly strayed from a public footpath through a field where cows with calves at foot were grazing. The Court held that farmer John Cameron could not argue that she was a trespasser as he had acquiesced in walkers using the route that the Claimant took. The Court found that Mr Cameron had not properly considered the risks and taken necessary steps to protect the public. Mrs Mckaskie's legal team argued that there should have been a sign warning of the danger. However, the judge commented that a sign warning walkers of the potential danger was not enough in circumstances where cows are known to be dangerous and that the cows should be moved from a field containing a public right of way or the footpath should be fenced off. Mr Cameron is to appeal.

The judgment comes after a number of recent reported incidents where walkers have been trampled by cows including vet Liz Crosley who was killed in June.

As this is a County Court decision it does not set a legal precedent but the appeal decision could do so watch this space! In the meantime the case does highlight the serious considerations that land managers need to take before placing any animals in fields where the public has access.

• The Occupiers' Liability Acts of 1957 and 1984 impose a duty of care on land managers to take reasonable steps to ensure that people on their land are reasonably safe.
• The Animals Act 1971 makes the keeper of an animal "strictly liable" in many circumstances for injuries caused by their stock.
• The Wildlife and Countryside Act 1981 bans bulls of recognised dairy breeds in all circumstances from being at large in fields crossed by public rights of way and imposes restrictions on bulls of other breeds.
• The Health & Safety at Work Act 1974 and the Management of Health & Safety at Work Regulations 1999 require employers and the self-employed to ensure so far as is reasonably practicable, that they do not put other people, including members of the public at risk, by their work activities.

For further information, contact Louise Bland or refer to the HSE Agricultural Information Sheet number 17EW which is the relevant guidance note

EMPLOYMENT - Recent changes in the law regarding dismissals from employment

As from the 6th April 2009, the statutory dispute resolution procedures and accompanying provisions, which have caused employers so many headaches, have been repealed.

The statutory three-step procedure, which was introduced by the Employment Rights Act 2002, set out statutory minimum standards relating to procedural fairness in dismissals. The idea behind the procedure was that employers and employees would be encouraged to resolve disputes in the work place rather than issuing proceedings in the Employment Tribunals. Unfortunately, in many cases, the statutory procedure had the opposite effect and many employers considered them to be largely unworkable.

On 6th April 2009 the statutory procedures were repealed. Many employers are breathing a sigh of relief but they should remember that in place of the statutory procedures they will now have to comply with the new Acas Code of Practice on disciplinary and grievance matters. The ACAS Code will apply in relation to misconduct or poor performance issues but it does not apply to redundancy dismissals or to the non renewal of fixed term contracts.

The procedure for handling misconduct or poor performance issues set out in the ACAS Code reflects the established position that an employer should carry out a reasonable investigation. If the findings of the investigation are that there is a case to answer then the employer should inform the employee of the issues in writing and also notify the employee of the time and place of a disciplinary hearing. The disciplinary hearing should be held without unreasonable delay whilst still ensuring that the employee has a reasonable time to prepare their case. After the disciplinary hearing the employer should inform the employee of its decision in writing and give the employee a right of appeal if they feel that the disciplinary action against them is unjust.

Tribunals will take the provisions of the ACAS Code into account when deciding upon the procedural fairness of most dismissals. Uplifts in compensation of up to 25 percent can be awarded for unreasonable failures to follow the ACAS Code. Unlike under the statutory procedures, a failure to follow the ACAS Code will not render an employee's dismissal automatically unfair.

Please note that the new procedure applied from 6th April 2009. Disciplinary, dismissal or grievance actions raised prior to this date should be dealt with under the statutory procedure subject to the transitional provisions in place.

For further information, contact Ceri Rogers

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