Agri-environment land affected by fires may need the agreement holder to ask Natural England (NE) for ‘force majeure’ to say they can’t deliver the agreement. The agreement holder should notify NE of force majeure within 15 working days for ELS/HLS agreements and Countryside Stewardship (CS) (relevant extracts from handbooks below).
Defra guidance on dry weather conditions just published confirms 15 working days applies to ELS/ HLS, rather than 10 working days stated in the ELS/ HLS handbooks. The Defra guidance encourages affected agreement holders to consider the alternatives of derogations or temporary amends. Contact Natural England to discuss on
- Email ZW5xdWlyaWVzQG5hdHVyYWxlbmdsYW5kLm9yZy51aw==
- Telephone 0300 060 3900
The current CS Manual says:
‘6.19 Force majeure
'If the Agreement Holder is prevented from complying with their obligations under the agreement due to force majeure or exceptional circumstances, Natural England must be notified in writing, within 15 working days from the date on which the Agreement Holder (or any person authorised to act on the Agreement Holder’s behalf) is in a position to do so. They will need to provide evidence in writing to show:
- what has happened; and
- how the event meant they were unable to meet the scheme rules.
'Force majeure or exceptional circumstances may include, but is not limited to:
- the death or long-term professional incapacity of the Agreement Holder;
- a severe natural disaster gravely affecting the Holding;
- the accidental destruction of livestock buildings on the Holding;
- an epizootic or a plant disease affecting part or all of the Agreement Holder’s crops, trees or livestock; or
- expropriation of all or a large part of the Holding (provided that the expropriation could not have been anticipated at the time the application for funding was made).
'Natural England will consider the facts on a case-by-case basis in deciding whether or not the Agreement Holder is relieved of all or part of their obligations under the Agreement and whether all or part of the grant should be withheld or repaid.
'If the Agreement Holder is aware of the issue when entering into their agreement then it is unlikely to fall under the force majeure or exceptional circumstances provisions.’
For ELS / HLS agreements the handbooks say (version 4 handbook):
‘5.6.9 Exceptional circumstances (force majeure)
'Where you are unable to continue with any part or all of the agreement, due to circumstances beyond your control that could not have been avoided by reasonable action, we have discretion not to take action to recover or withhold payments.
'The EU Commission Regulations, governing the administration of ELS, require that for force majeure to be taken into account, you must have notified us of the force majeure event in writing within 10 working days of you, or your representative, being in a position to do so [now 15 days following new Defra guidance]. Where you are not in a position to notify us immediately after the force majeure event, you will need to state the date on which you were first in a position to notify us and explain the delay.
'Please note that force majeure covers only the most exceptional circumstances, such as:
- death of the agreement holder;
- long-term professional incapacity of the agreement holder;
- expropriation by a government agency of a large part of the land, where this could not have been anticipated when the agreement was signed;
- severe natural disaster gravely affecting the land, including exceptional flooding;
- accidental destruction of livestock buildings on the land; and
- an epizootic disease (such as Foot and Mouth disease) affecting part or all of the agreement holder’s livestock.
'Circumstances that are not force majeure include:
- if a water company has already given notice that it will be putting a pipeline over your land during the proposed lifetime of the agreement;
- if you are selling the land as part of a long-term plan to retire from farming;
- where you cease to have management control as a result of the changing circumstances of your landlord (eg their death, incapacity, their decision to sell the land and//or terminate your tenancy); and
- flooding of low-lying farmland that is regularly flooded during predictable weather conditions.’
Agreement holders should refer to the correct handbook for their agreement:
- All ELS/HLS handbooks can be found here - https://www.gov.uk/guidance/environmental-stewardship#use-the-correct-handbook-for-your-agreement
- All CS manual can be found here - https://www.gov.uk/government/collections/countryside-stewardship-information-for-agreement-holders