Rural analysts and activists take note. Defra has updated its rural proofing guidance this week. This will be a key reference for anybody interested in the development and impact of policies which affect rural areas. Why?
Because policy measures are meant to have been ‘rural proofed’. So the criteria for rural proofing are important because they provide a framework for the independent evaluation of rural impact. They are also therefore a sound basis on which to challenge measures which may adversely affect rural economic, social and environmental interests, or to promote measures which will support these interests.
The Defra guidance tells us:
Thriving rural communities are vital to the English economy. A fifth of us live in rural areas and they are home to a quarter of England’s businesses, and generate 16.5% of the English economy. Rural areas face particular challenges around distance, sparsity and demography and it is important that government policies consider these properly.
Rural proofing is about understanding the impacts of policies in rural areas. It ensures that these areas receive fair and equitable policy outcomes. This guidance sets out a four- stage process to achieve this objective.
Figure One of the Defra Guidance offers this four stage process for rural-proofing:
The Guidance goes on to suggest this way to assess rural impact:
Worth a look for anybody concerned with rural policy and development nationally, regionally or locally.
Defra, the UK Department for Environment, Food and Rural Affairs has issued a consultation paper (Green Paper) on biodiversity offsetting and development. This paper represents a major government commitment to the introduction of biodiversity offsetting as a means to mitigate the environmental impact of development. Government plans to have definite proposals ready by the end of this year. Comments are invited by 7 November.
How is it likely to work? There are already trials underway and Defra has developed a simple ‘metric’ to determine the ‘biodiversity units’ lost to development, and therefore how many units must be offset by positive environmental work elsewhere. The Green Paper gives a simple example of how this works for a supermarket development on a site which is part derelict, part arable land and part woodland.
A number of questions flow from this: must replacement be like for like, or can one sort of habitat be substituted for another? Hedgerows in the pilot schemes must be replaced by hedgerows for example, on a ratio of up to 3 new for one lost.
Find out what you can do if faced by ‘blight’ from public development proposals on your property. This RICS webclass covers the circumstances which give rise to blight, how this fits in with compulsory purchase more generally, how to serve a blight notice and what happens next, and how to deal with compensation claims. The webclass is open to non-members of RICS as well as members, but a certain amount of background knowledge of planning and compulsory purchase would be helpful.
So if you’re facing the prospect of HS2, or any of the other big public developments promised in last week’s Spending Review, this could be the ideal opportunity to get up to speed with this vitally important area, whether as an affected landowner or rural professional adviser.
The webclass takes place on 10 July at 9.00 am and lasts 90 minutes. The presentation is accompanied by various activities which ensure you are able to test your understanding, and there is plenty of opportunity for questions and discussion. Feedback on previous webclasses in the RICS Rural Series has been excellent, and this class promises to be no exception. A recording of the class is available for a week afterwards, as well as copies of the slides which will be used.
This is a novel but effective way to keep up with your CPD – straight from the comfort of your own desk; with a suitable internet connection you could even take part from the comfort of your bed! Plus there are no travelling costs, and by sharing with a friend the cost goes even further!
Power of Attorney is a vital consideration in succession/continuation planning – but rarely mentioned in published guidance on these topics. Christmas may not be the best time of year to look at succession and continuation planning, but the month or two at the start of the year can offer pause for reflection when days are short, farming or estate activity is at a low ebb and the annual tax return it out of the way. At its simplest, the grant of a power of attorney allows your appointed ‘attorney’ (or attorneys) to manage your affairs.
Lasting Powers of Attorney (LPAs – not to be confused with local planning authorities or the Law of Property Act 1925) are covered in England and Wales by the Mental Capacity Act 2005, and they are administered by the Office of the Public Guardian. Comprehensive information and step-by-step guidance can be found on the government website, https://www.gov.uk/power-of-attorney/overview. Lasting Powers of Attorney have now replaced ‘Enduring’ Powers of Attorney for practical purposes, although the latter may still be encountered and used – but the rules are different.
There are two types of LPA: (1) Property and financial affairs, and (2) Health and Welfare. They are not interchangeable so if you want to grant full powers of attorney you need to make both types. For example your attorney for property and financial affairs may be able to sell your house for you, but not to make decisions on your health treatment if you were unable to do so yourself. You do not need to be incapacitated for an attorney to act on your behalf, unless the power of attorney you have granted says so.
Why could this be important in a family business? Say Arthur is a sole trader or senior partner in a family farming business. He suffers a stroke at the unfortunately age of 45. Decisions need to be made about his business, and about various choices in his treatment. The existence of a Lasting Power of Attorney, properly registered with the Court of Protection, will allow Arthur’s attorneys to make these decisions and implement them on his behalf. Alongside a will, there is every reason to say a Lasting Power of Attorney is a vital tool in the succession and continuation plan for any family business.
So how should Arthur make his two powers of attorney (Property and Financial; Health and Welfare)?
Obtain the official forms and guidance from the government website;
Consider who he wants to act as his attorney, and whether he wants two or more attorneys. The appointment of at least two attorneys is desirable in case one proves incapable of acting (eg death, bankruptcy, mental incapacity). Attorneys can be appointed to act jointly – in which case they must decide everything and act together at all times; or jointly and severally – so that each attorney can act independently of the other. The appointment can also be hybrid – joint action for the big issues (like selling real property); joint and several for smaller items like the payment of routine bills.
Consider the nomination of ‘replacement’ attorneys. These attorneys are only called into action if the first attorneys are incapable of acting. This might include the situation where one of a pair of attorneys appointed to act jointly is unable to do so. In that case, the replacement attorney takes over from all the original attorneys.
Consider who needs to be notified that the LPA is being made. This list might include close relations, business partners and key associates. These people are listed on the application form, must be notified of the proposed LPA and can therefore object to its creation (perhaps because they think the nominated attorneys are unsuitable, or because the donor lacked competence to make a LPA for example).
The forms are filled in. This must be done in the right order: first the donor form (the person granting the LPA); then the certificate; then the attorney(s) themselves. The Certificate must be given by either certain types of professional (eg GP, solicitor) or somebody who has known the donor for at least two years and feels confident in confirming the donor’s competence to make a LPA. Only one certificate is needed where there is a list of people to be notified of the LPA, but two are needed where nobody is listed. Some people are specifically barred from certifying a LPA, eg anybody associated with a care home where the donor is living.
The LPA cannot be used until it has been registered with the Court of Protection. This is meant to take up to six weeks although the current rate is up to 10 weeks for a straightforward application. The attorneys apply for registration and do not need to do this until they want to use the LPA. However, it is generally better to apply straightaway in case there are objections or administrative errors in the making of the application – if registration is delayed it may be too late to rectify the problems with a new LPA (eg the donor is no longer competent to make a LPA). The LPA itself can impose restrictions on its implementation (eg not effective until the GP has confirmed that the donor is no longer competent to act) or this can be left for the attorneys to decide – confirmation of registration does not mean that the attorneys have immediately ‘taken over’ the affairs of the donor. Delayed or invalid applications may leave no choice but to apply to the courts for an order – likely to be a far less certain, expensive and time consuming process.
Along the way it may of course be very sensible to take legal, property, health and financial advice. However the government seems to have gone out of its way to make the actual appointment and registration of attorneys under a LPA a very straightforward process. The current fee to register a LPA is £130, so making both types would cost £260 before any professional advice or certification fees (eg the family doctor may well want a fee to cover his or her efforts in certifying the application).
Effective LPAs could make all the difference between stalled business or family affairs, and the ability of an attorney to step in at short notice and act in the donor’s best interest while he or she is incapable of doing so for themselves (either short term or long term). For anybody in charge of a business, or with family dependents to consider, this could be a vital safeguard. And don’t forget the importance of ‘replacement’ attorneys because people don’t always die or become incapacitated in the right order as recent family experience has demonstrated. I would be interested in readers’ experience with LPAs (or the lack of them), or your response to the considerations in this article.
Well worth a look as we look forward to the new year.
As ever this article offers no more than a summary on LPAs, and there is much more detail to be found in the Office of the Public Guardian’s guidance (see website above) but I hope it will act as a useful prompt to readers.
The interests of farmers and planners in each other were brought together on Friday 9 November 2012 at Harper Adams University College in Shropshire. The conference was hosted by the National Farmers’ Union and the Royal Town Planning Institute with the aim of enhanced mutual understanding.
The annual RICS Rural Land Conference takes place at the Royal Agricultural College, Cirencester on 21 June 2012. Richard Benyon, Defra minister for environment and fisheries is due to open the conference. Speakers from our leading rural surveying and legal firms, government, CLA, Andersons Consulting, and the RICS rural partner universities will address a range of topics including CAP reform, tree safety, rural housing and the Localism Act, policy and legal updates. There’s a link to the conference details and booking arrangements at the end of this post.
I have been asked to speak about future challenges facing RICS rural members, and I would like to ask for your help. Please could you complete the poll below and offer me a comment or two on what you see as key factors in shaping demand from our clients over the next ten years.
At the time of the last CAP reforms I prepared a paper for RICS on the subject of rural scenario planning, in which we categorised the countryside into: Primary Production Countryside (farming for food and fibre, forestry, minerals); entrepreneurial countryside (the web of mainly small businesses which comprise the rural economy) and what we called ‘Stakeholder Countryside’.
The significance of these categories was that each demanded a different set of skills, and exemplifed a different generic strategy. Primary production for example focussed on cost leadership and attention to technical detail; whereas Stakeholder Countryside had a strong ‘differentiation’ focus in order to mark the differences from other initiative in search of competitive funding. This helfpully enabled us to structure our thinking about the future calls on members of our profession at a strategic level – even if the concept did seem somewhat esoteric at the time to many practitioners understandly committed to their day to day client requirements.
Since then we have also seen the increasing recognition of, and emphasis upon, the role of ecosystem services and their valuation. In my view this has profound implications for the future work of rural surveyors and valuers, and is the subject of a separate ‘Think Piece’ on which I am currently working for RICS. This link to a recent RICS Land Blog gives a little more idea of this. The conference will be an opportunity for a preview of this work.
But what other key political, economic, social, technical developments will shape the requirement for rural professional services over the next 10 years or so, and will this be good news or not for land agents and rural valuers? Clearly much will depend on how we embrace the new possibilities and in responding to this question some may fall back too easily on a tweedy, innately conservative stereotype of the traditional land agent and agricultural valuer. But this is too lazy a response. This is after all the profession which has supported farming through successive CAP reforms from the introduction of milk quota transfer services in the 1980’s, to all the requirements associated with entitlement for the Single Farm Payment in the 2000’s.
So I would like to ask you to respond to this poll about the future outlook for land agents’ and rural valuers’ services.
Please also feel free to tweet me (@charlescowap) or to use the comment facility to share your views on this important question as well.