Question Time

I have applied to the local Council for 10 holiday lodges to be sited on one of my permanent pasture fields in a pretty location on the farm.


The planning authority says it will refuse the application because the proposed development is in an exposed location and detrimental to the character and appearance of the countryside.


It also says the lodges would harm protected species and habitat, as well as generating traffic in an area poorly served by public transport.


What should do?


I thought the government wanted to encourage tourism in the countryside?


Answered by Barry Davies, Davies & Co, Kettering, Northants


For a start, your planning application is for a change of use of agricultural land, not for the erection of dwellings.


So it’s important that the description of the development in the application says holiday lodges.


You will need a topographical survey to help you prove that the lodges are not going to be located on ground that is prominent in the landscape or detrimental to the countryside.


An environmental statement may be required to address the wildlife and habitat objections, too.


This should list any protected species and habitat in the area and suggest measures to minimise the impact of the plan.


Contact the Environment Agency to see if they want to have an input.


Local traffic levels and the layout of your existing farm access may mean the site is not suitable for the number of lodges proposed.


If the access is off an unclassified road, it needs to be at least 4.8m wide with a verge of 1m on either side.


Visibility is important, too.


Standing 2.4m back from the road, you need to be able to see 215m in either direction.


If you need to widen the access, it must be carried out by council-approved contractors.


It will help if the site is served by public transport, public footpaths, or cycle routes; check with the local council tourism officer to see what is available.


You may have to do a transport assessment, too.


The national planning documents that give support to this form of development are PPS7 (paras 30, 34, 38, 39 and 40), PPG21 – Tourism (currently under consultation) and PPG13 – Transport. It may be worth quoting them to the planners.


It is also essential to involve the local parish council and gain its support.


Attend the local parish meeting.


If planning permission is gained, it may well put a limit on the total number of weeks in any one year that the lodges can be occupied.


This is to ensure they are used for holiday accommodation and not sold off.


You will probably have to do some landscaping, too.


I am in my early 60s and farm as a sole trader.


I have a son and a daughter, both in their mid-30s.


My son has always lived at home, and is paid a small wage for work on the farm.


My daughter is married and lives with her husband and children away from the farm.


I would like to leave the farm to my son.


But I wish to provide something for my daughter on my death, and have made a will leaving the farm, livestock and machinery to my son, with everything else being left to my daughter.


Are there any pitfalls I should be aware of in the light of the new Single Payment Scheme?


Answered by Matthew Elias at Nigel Davis Solicitors, Belper, Derbyshire


I presume that the intention is to leave your daughter with any assets other than the farm.


Unfortunately, this means that your current will won’t transfer any entitlements to the Single Payment to your son.


Entitlements to the Single Payment are personal to you, and do not attach to land, so these will pass to your daughter together with the residue of your estate.


To rectify this you should either make a new will or add a codicil to your current one ensuring that in addition to leaving your son the farm, livestock and machinery you also leave him your entitlements to the Single Payment.


If you do not do this, the consequences for the viability of the farm once it has been left to your son could be disastrous.


I have three full time staff, one of whom seems to be accident prone.


He is not a tidy worker, for example leaving jobs unfinished in the workshop.


He doesn’t always communicate well with other staff.


As a result, one of them used a machine in an unsafe and unsuitable condition recently and we now have a large repair bill to pay.


Apart from this, most of our minor accidents and repairs always seem to involve this employee in some way.


I have spoken to him several times to try to get him to improve, but fear I am getting nowhere.


I am worried that there will be a serious injury one day.


What can I do?


All the men have been with us for several years.


Answered by Phil Cookson, Roythorne & Co, Spalding


Two main areas of concern need to be addressed here – health and safety and disciplinary procedures.


Health and Safety – as an employer you have responsibilities for ensuring as far as is reasonably practicable the health and safety of your employees.


You, therefore, need to ensure that all employees are fully trained in relation to the safe use of machinery.


While it may not have been the fault of the second employee that the machine was in an unsafe condition he ought not to have used it when it was.


A refresher on safe working practices may be necessary.


Disciplinary Procedures – bringing formal disciplinary action against an employee is never a pleasant task.


That said, you need to start to protect your position; it appears that the informal chats have not had the desired result.


You can and should begin a formal process to address the capability/conduct issues that are demonstrated by the continued carelessness.


You need to check whether or not you have your own disciplinary procedure – if not then there is a statutory minimum procedure which is now in place.


Following a fair procedure is vital as a failure to do so can result in what would otherwise be a fair dismissal being procedurally unfair and an award possibly being made against you.


Initially, a formal warning against repeat behaviour seems appropriate.


The warning needs to be time-limited (causing no more accidents by careless behaviour for six months, for instance) and could be coupled with retraining as necessary.


If a further incident happens within the period then a final warning can be given and if this still fails to improve the situation then a dismissal may result.


It is best to get advice (ACAS is a useful source) on each step as it comes up to ensure that the proper procedures are followed.


I am a tenant farmer and bought a second home for retirement several years ago.


The second home is uninhabitable.


The local council says that as the maximum five-year period of exemption for a property requiring structural or major repairs was granted before April 2000, no further exemption can be allowed.


The property is, therefore, now chargeable at full rate.


I understood that a government concession in 2002 allowed for a 50% discount to be given to those who are required to live in tied accommodation by legal agreement.


Is the council correct in demanding the full rate on the second property?


Answered by George Dunn, Chief Executive, Tenant Farmers Association


As an agricultural tenant you are entitled to 50% relief on any council tax owing on a second dwelling subject to certain conditions.


First, your tenancy agreement must require you to occupy a dwelling provided by the landlord.


Second, the second dwelling must have been purchased either for retirement or to occupy at the end of your tenancy.


Third, the second dwelling must not be the main residence of anyone.


But it is clear that some local authorities do not understand the rules as contained in Statutory Instrument 3011 of 2003.


As a result the rules are being interpreted too narrowly by those authorities by providing the 50% relief only to employees who are required to live in job-related accommodation and have second dwellings.


The Tenant Farmers Association has government confirmation that the rules do apply to anyone (including tenant farmers) who is required by any legal agreement to occupy an alternative dwelling.


It has used this to help members overturn the decisions of rating authorities where relief has been denied.


If a local authority continues to deny relief then an application can be made to the Valuation Tribunal.


Two of my company’s biggest clients have not paid the bills I sent them for contracting work.


I am worried that they will be unable to pay me at all.


Our suppliers have continued to let us have materials on credit, but I am starting to wonder if my company’s position is hopeless.


As a director, can I be sure that if the company cannot trade out of its difficulties my house and other personal assets are secure?


Answered by Robert Swift, Wilsons, Salisbury


No, you cannot!


If a company has gone into insolvent liquidation and traded when a director knew, or ought to have concluded, that there was no reasonable prospect that the company would avoid liquidation, the court may declare that the director is liable to contribute to the company’s assets out of his own pocket.


The court must not make such a declaration if satisfied that, once the director knew or should have known the company could not avoid liquidation, he took every step which a reasonably diligent person would have taken to minimise the potential loss to the company’s creditors, assuming that person has both:


(a) The general knowledge, skill and experience that may be reasonably expected of a director, and


(b) The general knowledge, skill and experience of the particular director.


All directors need to be aware that if they are wrongfully trading, their liabilities are not limited to their investment in their company.


In some companies there are directors who, in reality, have little to do with the running of the business and they might be best advised to step down to avoid exposure either to their personal assets being called upon to make good a company liability or to a charge of wrongful trading.


Give us a try


Email your questions to fwreaderqueries@rbi.co.uk or fax them to 020 8652 4005 or write to FARMERS WEEKLY Legal Queries, Quadrant House, The Quadrant, Sutton, Surrey SM2 5AS. All questions will be published anonymously. Please give enough detail to allow an accurate answer to be given.

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