Farmer not liable for cross compliance breach by gamekeeper

A farming company was recently found not to be liable for the cross compliance breach of its gamekeeper. As many will be aware, farmers seeking EU subsidy payments have to observe “cross compliance” requirements aimed at protecting wildlife and the environment, including conserving protected birds.

The gamekeeper on the Stody Estate in Norfolk poisoned ten buzzards and a sparrowhawk to protect game for a ten day family shoot. The Stody Estate was originally held to be vicariously liable on the grounds that the gamekeeper’s actions were deemed to be within the scope of his employment. The Estates’ subsidy payment for that year was consequently reduced by 75% and then by 55%, in view of “mitigating circumstances”. However, the Estate appealed that it should not be held liable at all.

The NFU thought that the case was of such importance to the farming industry that it intervened. It argued that, where land is farmed by a company, it can only be liable for breaches caused by the managing director, or possibly the estate manager. The Court disagreed and held that whether or not a penalty is properly given will depend on an assessment of the culpability of the individual farmer in connection with the breach, which has to be “directly attributable” to their acts or omissions. Examples include if the managing director or estate manager had given positive instruction to kill the birds, or had failed to provide reasonable training or to take steps to end the killing once aware of it.

Since there was no investigation into or evidence that the gamekeeper had acted with either man’s knowledge, it was held that there was no proper basis for the penalty and it was quashed.

Nevertheless, landowners should ensure that their employees and others carrying out activities on their behalf are aware of the importance of cross compliance adherence. As well as financial penalties, there could also otherwise be consequences when selling agricultural land. A sale contract will usually require a seller to confirm that it has complied with all cross compliance conditions, indemnifying the buyer against liability arising from historic breaches.

Whilst in the context of Brexit subsidy payments under the Basic Payment Scheme are only guaranteed until 2022, indications are that any replacement UK scheme will focus heavily on environmental conservation. Therefore, the lessons that can be learnt from this case are likely to remain relevant going forward.

Fenella Eddell is a solicitor in the property department at Barker Gotelee, Suffolk solicitors.

(This article first appeared in the East Anglian Daily Times, 28th April 2018)

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