Opinion: Landscape Recovery small print is a cause for concern
Joy Bowes © Joy Bowes Try doing anything online nowadays – buy a rail ticket, book a restaurant, arrange a delivery – and 10 to one you will be asked to tick a box saying that you have read and agreed to the terms and conditions.
I am one of the (probably very few) people who actually bother to do this, on the basis that, as an ex-lawyer, I’d feel very embarrassed were I to discover later that I’d agreed to hand over our cat to be turned into gonks.
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About the author
The thing is, though, that in nearly all cases it’s completely irrelevant whether or not you’ve read and agreed to the T&Cs because you don’t have a choice. You need the rail ticket or the delivery.
You could try phoning the restaurant to reserve a table, but good luck with that. It’s an unequal relationship – they have something you want and the only way to get it is on their terms.
It was different when I actually was a lawyer and my employer, the local council, was entering into contracts for all sorts of things from musical performances to major developments.
There was usually room for negotiation, whether that was the fee and riders for a rock group or the high stakes and potentially very large losses on both sides if things went pear-shaped on a large-scale building project.
My role, which could be summarised as “risk-averse doom-monger”, was to protect the council.
This meant pointing out to those colleagues and councillors keen to see a project go ahead all the things that could go wrong with it – and then doing my best to ensure that the effects of failure would be mitigated in the contract terms.
I have been mulling all this over since reading about the termination clause in Landscape Recovery schemes.
Termination clause
I gather that the wording will vary with each agreement, but an absolutely non-negotiable element is that the clause will allow the government – and not anyone else – to withdraw from a scheme with only 12 months’ notice, just because that would be “convenient” for it.
There need not be any fault on the part of the landowners, nor indeed any consideration that it would be mightily “inconvenient” for anyone whose land had been irrevocably changed by, say, flooding or the redirection of a watercourse.
Were I still a lawyer, what would my advice be to anyone minded to commit land to one of these schemes?
Well, I’d certainly have wielded the highlighter pen on the termination clause and be waving it (the clause not the pen) under their noses and asking what they’d do if the agreement were suddenly terminated.
Unless their finances could absorb the loss of government payouts, or they could insure against termination, or they had a fall-back use for the land, then in risk-averse doom-monger mode I’d counsel against signing up.
It’s all very well for the government to say they probably wouldn’t rely on the termination clause and not to worry ourselves about it, but I’d definitely be worrying because I would have in mind the record of government assurances about other things.
Which brings me to something else I saw not long ago. It was a cartoon of two lizards: one had cut off the other’s tail.
The caption was: “You know what doesn’t grow back? Trust.”