Entry Level Stewardship (ELS) Handbook 2013 (NE349)

5.6 Making changes to your agreement


5.6.1 Can you make changes to your agreement?

You should be able to carry out the options and management under your agreement without difficulty. However, should an exceptional situation arise where you need to change the choice or location of your management options, subject to our approval, we can amend your agreement.

Continuity of management is important during your agreement if we are to achieve the environmental benefits sought. We will therefore only agree to changes that are absolutely necessary.

If you wish to improve the environmental performance of your existing ELS agreement by amending your option selection you can do so without impacting on your ability to make further changes to your agreement in the future. However, this type of change will only be permitted if the following criteria are met:

  • The change should reduce the presence of low-priority options in the agreement (see below). The ELS points released by the removal of low-priority options should be replaced by the addition of an equivalent value of high-priority options. Requests that seek to maintain the existing (or increase) the presence of low-priority options will be rejected.
  • Your ELS agreement should have at least two years left before it expires. This will allow time for the new options to establish and have a positive impact on the environment.
  • Additional options must be taken from the same version of the handbook that was used when the agreement was drawn up. For example, agreements drawn up under this version of the handbook (version 4) cannot contain options taken from version 2 or 3 of the scheme handbook.
  • All other eligibly criteria must continue to be met – including the 30 points/ha target.

Input from a Natural England funded adviser is recommended, but not essential. To request a free on-farm visit, call 0300 060 1695.

Table 10 Low-priority options that must be reduced in the agreement as a result of the change

Option Option Description
EB1 Hedgerow management (on both sides of hedge)
EB2 Hedgerow management (on one side of hedge)
EB4 Stone-faced hedge bank management on both sides
EB5 Stone-faced hedge bank management on one side
EB8 Combined hedge and ditch management (incorporating EB1)
EB9 Combined hedge and ditch management (incorporating EB2)
EB12 Earth bank management (on both sides)
EB13 Earth bank management (on one side)
EC1 Protection of in-field trees (arable)
EE1 2m buffer strips on cultivated land
EE2 4m buffer strips on cultivated land
EE3 6m buffer strips on cultivated land
EE4 2m buffer strips on intensive grassland
EE5 4m buffer strips on intensive grassland
EK1 Mixed stocking
EL2 Permanent in-bye grassland with low inputs: SDA land

 

You must tell us about any proposed amendments and we must agree to them before you make any changes to your options. We will send you a Land Transfer and Amendment request form (ERDP/LTA1), to complete and return. Your amendment will not be valid until you have received a letter from us agreeing to the amendment and advising you of the date from which it will take effect. If your request is successful, we will provide you with confirmation within three months of receipt of a valid request form. You may also need to contact the RPA to notify them of changes to your holding.

We do not expect to amend an agreement more than once during its five-year term unless it is to achieve environmental benefits, as detailed above.

 

5.6.2 What if you let, sell or transfer your land to another party?

Please notify us as early as possible in advance of any change in occupancy or ownership (including sale, transfer, inheritance or lease) of all or any part of your agreement land. If you do not notify us in advance (to include your confirmation in writing for a whole farm transfer or the return of your Land Transfer and Amendment form [LTA1] for a part farm transfer) we may not be able to process your transfer to the dates specified in Section 5.6.4.

If advance notification is not possible, you must inform us (to include your confirmation in writing for a whole farm transfer or the return of your Land Transfer and Amendment form [LTA1] for a part farm transfer) within three months of the land being transferred. If you do not, you will be in breach of your agreement and you will have to repay the grant you have received, unless force majeure or other exceptional circumstances apply (see Section 5.6.9).

You must tell the prospective owner or occupier about your agreement with us, before you transfer any existing agreement land. If the new owner or occupier does not continue with the agreement on the transferred land, and/or we do not receive their new application within four months of the actual date of transfer, you (not the new owner or occupier) will be in breach of your agreement and you will have to repay all or a part of the grant you have received.

If you transfer all of your agreement land, you must contact us in writing no later than three months after the commencement date of lease, the completion date of sale or the actual date of transfer to confirm the transfer, identifying the new owner or occupier. In these circumstances, your whole agreement must be transferred to the new owner or occupier and either continue to its original expiry date or be restarted as a new agreement, otherwise we will be required to recover all payments made to you.

If you transfer part of your agreement land, you should contact us for a Land Transfer and Amendment request form (ERDP/LTA1). You then need to complete and return the form no later than three months after the commencement date of lease, the completion date of sale or the actual date of transfer, to amend your agreement.

We will expect you to continue with your existing options on the land that you have retained in your amended agreement. Where necessary, you may need to add further options to meet your revised points target. The amended agreement will run for the remaining term of the original agreement. Alternatively, you may choose to start a new agreement (including any other eligible land that you have), provided that you meet the scheme rules at that time.

If, following a partial transfer, your remaining land no longer meet the ELS entry criteria (for example, if you do not add sufficient options to meet your revised points target), the agreement may need to be closed early. In this case, unless force majeure or other exceptional circumstances apply (see Section 5.6.9), you will be in breach of your agreement, and you are likely to have to repay all or a part of the grant you have received.

 

5.6.3 What if you acquire land?

If you acquire additional land, it will be in your interests to notify Natural England of the acquisition, to avoid a delay or break in payment. If you acquire land from another ES customer, you need to submit your application within four months if you are remaining in ELS or upgrading to OELS, or six months if you are upgrading to HLS. Where the acquired land is already under an Environmental Stewardship agreement and does not remain at the same or higher level of management, the original agreement holder will be in breach of their agreement.

  • One of the following options will be available, depending on your proposed level of management for the acquired land. For example, on acquisition of new land, you may wish to upgrade your agreement from ELS to ELS/HLS. A Natural England adviser can discuss the individual circumstances with you and propose the best solution for your needs:
  • Option 1 – You can set up a new agreement to include all your eligible land, including the new land and any existing agreements that you may have, subject to Natural England’s approval. You will have to meet the eligibility and entry conditions at the time the new agreement is set up.
  • Option 2 – You can take over the agreement on the acquired land for its remaining term. This would be a separate agreement from any pre-existing ES agreement that you may have. Where you take on land forming a part, but not the whole, of an existing ES agreement, you may need to add new options to the land to meet the points target.
  • Option 3 – You can apply for a separate agreement on the new land, and, if applicable, wait until your first existing agreement expires and consolidate all your eligible land into one new agreement at that time.
  • Option 4 – If the acquired land will be managed in the same scheme as your existing agreement, you can either amend or continue your existing agreement to add the land as follows:
    • amend your existing agreement for its remaining term and keep the same agreement number. The option can only be used if your transfer date aligns with the partial or end of year payment date applicable to your agreement (and/or the payment date applicable to another agreement holder’s agreement where you have acquired only part of their land); or
    • continue with your existing agreement for its remaining term, but with a new agreement number.

This is subject to the following conditions:

  • Land cannot be added to an agreement during the final two years of that agreement.
  • The land to be added must be no more than 50 per cent of the size of the original agreement (for example, if you have an agreement of 100 ha, you may add up to 50 ha).
  • For acquired land already under agreement, the land to be added must have the same, or earlier, agreement start date as your existing agreement (ie if your agreement starts on 1 February 2010, you can only add land that entered Environmental Stewardship on or before 1 February 2010). This is to ensure that the normal five years management is achieved. The entry criteria for both agreements must also be the same.

 

5.6.4 When will agreement transfers take effect?

Subject to receiving advance notification of the transfer of ownership, we will carry out transfers on the dates specified below. If we don’t receive advance notification, these dates may not apply and the transfer may be delayed until the next available monthly date following the notification, or an alternative agreed with your adviser.

We can only carry out transfers on the first of a month. Transfers of land into an existing agreement will be applied on the first of the month following the actual date of sale, lease or transfer. Where the transferred land is coming from another agreement, it will be transferred out of that agreement on the last day of the previous month. For example, if the actual date of sale, lease or transfer is 15 March, we will start the new or amended agreement on 1 April, and, where applicable, transfer the land out of the original agreement on 31 March.

For transfer of land between parties, where the actual transfer date does not align with the date on which we effect the transfer of the agreement, it will be the responsibility of the parties involved to apportion any payments for this period. The transferor (that is, the party disposing of their interest in the land) will also remain responsible for the agreement and will be liable if there is a breach of agreement until such time as we have effected the agreement transfer. We recommend that the parties’ respective obligations or liabilities to each other in these circumstances are built into the relevant contract of sale or the lease agreement.

These dates apply except:

  • Where you are amending your agreement in order to add the land and the transfer in date is restricted to the agreement’s payment dates (see Section 5.6.3). In these cases, we will start the amended agreement on the next payment date, and any land coming from another agreement will be transferred out on the last day of the month preceding the payment date.
  • Where one or more of the following apply:vwhere notification of the transfer is received more than three months after the date of transfer (see Section 5.6.2);
    • where the new agreement holder’s application is not received within the four-month deadline (see Section 5.6.2);
    • where the written confirmation and/or Land Transfer and Amendment form(s) (LTA1) are not returned to Natural England by one or all parties involved in the transfer until after the date of transfer (see Section 5.6.2) and the circumstances of the transfer require a new or restarted agreement to be set up or include an additional requirement, eg to upgrade an agreement to Uplands ELS or bring in nonagreement land at the same time as bringing in the transferred land;
    • where a transfer is being made between different schemes;
    • where transferred land is not continued at the same level of management by the new agreement holder.

In these cases, we will advise you of the dates depending on the circumstances of the transfer.

 

5.6.5 What if you want to upgrade your agreement?

If you wish to upgrade your agreement, for example, from ELS to ELS/HLS, from ELS to OELS or from ELS to Uplands ELS, you should contact us first to discuss your plans.

 

5.6.6 Derogations

You need to notify us when you want to make a minor and temporary change from the agreed management prescriptions. Examples include permission to control serious weed infestations using herbicides; a relaxation from a time-based prescription; permission to alter cutting or cultivation prescriptions due to practical problems; or to allow metal detecting on known archaeological features on permanent grassland.

The derogation notice form (NE-DN) is available on request from us, and can also be downloaded from our website at website at www.naturalengland.org.uk. You must complete this form and return it to us. You need to:

  • tell us why the derogation is needed;
  • state the exact proposed course of action (including precise location details, choice of pesticide and application rate, where relevant);
  • provide confirmation that the situation was unforeseen and that other solutions that are within the allowed management prescriptions have been considered; and
  • provide a countersignature by a third party to confirm that the request is reasonable, will not compromise the objectives of the agreement and is the most appropriate response in the situation concerned. The counter-signatory must be independent from the agreement holder and trained in environmental management. This could be a private agronomist or one employed by a conservation organisation.

You must inform us about your proposed derogation before you make any changes to your management.

You may go ahead with the proposed changes to management as soon as you have returned the derogation notice form to us. The exceptions to this are:

  • where the proposed derogation would affect a Site of Special Scientific Interest (SSSI), in which case you will need to receive consent from us before carrying out the operation; and
  • where a derogation is required for an activity that would affect an archaeological site, in which case we may request additional information, including the proposed methodology and research aims of any planned activity and we may consult with local authority archaeologists and, where relevant, English Heritage. The work may not go ahead until you have received written approval from us.

As a guide, we would not expect to see more than three derogations during the course of a five-year agreement.

We will keep the derogation notice form and all details, including those of the countersigning adviser, will be checked during any compliance inspection.

Derogations to use pesticides
When the derogation involves the use of pesticides on conventional land, it must be countersigned by a suitably qualified BASIS (British Agrochemical Standards Inspection Scheme) agronomist, who is independent and trained in environmental management.

 

5.6.7 Variation of your agreement by us

Very rarely, it may be necessary for us to vary your agreement in line with changes to European law and in other exceptional circumstances. In applying for the scheme, you are accepting that such changes may be made at any time. We make such changes available on our website in a List of Changes document. Where the changes are significant in affecting the land management required or affect financial aspects of the agreement, we will give you notice of this by writing to you.

During 2014 we will be moving into the next Rural Development Programme and we may have to adjust any ELS agreement (including Uplands ELS) that starts from 1st January 2012. If the changes we have to make to your agreement as a result of the new Rural Development Programme are unacceptable you can terminate your agreement without penalty.

 

5.6.8 Certainty of payment

The European Commission are reviewing the continuation of, and provision for, agreements that run beyond 2015 in the context of the current CAP reform negotiations. Natural England does not have legal authority to make payment commitments beyond 2015, but there is a clear precedent in the current programme (RDPE 2007–2013) for continuing to make payments on agreements carried over from the previous programming period.

 

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. 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.
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