The reform of the common agricultural policy means new thinking is needed when giving advice to rural clients, writes Geoff Whittaker

The dawn of 2005 saw the introduction of the most radical reform of the common agricultural policy (CAP) since its inception. The new single farm payment (SFP) scheme has implications for anyone advising clients in the countryside, however infrequently.


Buyers of rural land know about arable area aid eligibility; matrimonial lawyers understand the value of milk quotas; and tax advisers can distinguish agricultural from non-agricultural activity. But the new scheme replaces most of the existing schemes; therefore, new thinking is necessary in giving advice. What worked in the past may work no longer.


The main regulations are Council Regulation 1782/2003 and Commission Regulations 795/2004 and 796/2004, and their respective amendments. There are others that deal with specific areas - and more regulations are coming, both from Brussels and Whitehall.


The SFP scheme is implemented differently according to the location of the land. There are six systems in the four jurisdictions: one each for Scotland, Wales and Northern Ireland, and three for England, according to whether the land is in a severely disadvantaged area (SDA) above the moorland line, an SDA below that line, or elsewhere. Some farmers on the Anglo-Welsh or Anglo-Scots borders may find themselves having to deal with four separate systems.


Furthermore, the Scots system is similar to, but not the same as, the Welsh; and the Northern Irish is a simplified version of, but different from, the English.


Farming support payments from 2005 onwards are decoupled - that is, they will be paid to qualifying claimants no matter how much of whatever agricultural product results. To qualify, a claimant must be a 'farmer' and must have 'entitlements'.


A farmer, according to article 2 of 1782/2003, is a 'natural or legal person or a group of natural or legal persons... whose holding is situated within community territory... and who exercises an agricultural activity'. 'Holding' is further defined (see article 2(b)) as 'all the production units managed by a farmer situated within the territory of the same member state'. This is largely the same as under previous regulations.


However, the definition of 'agricultural activity' is different. Agricultural activity, according to article 2(c), 'means the production, rearing or growing of agricultural products including harvesting, milking, breeding animals and keeping animals for farming purposes, or maintaining the land in good agricultural and environmental condition...'


The concept of keeping land in good agricultural and environmental condition (GAEC) is the novelty. We still wait to see exactly what will constitute GAEC, but the clear result is that farmers may do no farming in the traditionally understood sense of the word and still be able to receive the payment.


So a person who simply chooses to maintain GAEC is a farmer within the meaning of article 2, but how will this impact on his income tax position? There are also questions concerning agricultural property relief from inheritance tax. Discussions continue with the Inland Revenue and announcements are expected soon.


Entitlements will be allocated differently to farmers depending on where the land is. Farmers in England will receive them on the basis of the land declared by them in the 2005 claim form, which has to be submitted by 16 May.


In Wales and Scotland, entitlements will be allocated according to claims made in the reference period of 2000-2002. The regulations provide for cases where farmers did not make claims throughout that period and also where they were affected by exceptional circumstances.


Once the entitlements are allocated definitively, they must be matched against 'eligible hectares'. This has nothing to do with eligibility as has become understood in the context of arable area payments - it bears its own meaning under article 44(2) of 1782/2003.


By definition, English farmers will claim only on the land they declare this year, so finding matching hectares will not trouble them. But in Wales and Scotland, where the area under control now may be more or less than the farmer had in the reference period, there will be some with more entitlements than matching hectares and some with less.


To be able to use an area of land to support a claim, it must, firstly, be put to agricultural use and, secondly, be 'at the farmer's disposal' for ten months of the year.


'Agricultural use' is relatively easy to define by starting with 1782/2003 and following where it leads. It is worth noting that land that was previously used for activities not supported by the CAP &150; pig and poultry farming, for example &150; may now be used to support an SFP claim.


Land used for grazing horses is also acceptable, even if that activity is secondary to non-agricultural use such as livery stables or racecourses. (The land occupied by the stables or the course will, of course, not be accepted.) It is almost certain that land not previously claimed against will become 'agricultural'.


The concept of 'at disposal' is a little more difficult to contend with. Owner-occupation and tenancies will clearly qualify, but, so long as the rights granted by them last for more than ten months (profits à prendre or non-exclusive licences, for example) may be good enough.


As might be expected, there are penalty provisions. Farmers must comply with statutory management requirements set out in annex III to 1782/2003 - 'cross-compliance'. These requirements, for the most part, already exist under other legislation, but the SFP is now at risk for breach.


It is now more important than ever for preliminary enquiries to deal with farming history and the environmental consequences of farming activities to be sure that the vendor's sins do not visit themselves upon the purchaser. Similarly, licences and tenancies must include appropriate covenants and warranties.


SFP entitlements are the personal property of a farmer and do not attach to the land. That creates issues for private client and matrimonial lawyers.


Where the farming business - land, stock, equipment and so forth - is left by will to one child, with the remainder of the assets going to the other or others, then, depending on the particularly phraseology used, there is a risk that entitlements may end up in the hands of the remaindermen, who, if so inclined, may be able to hold their farming sibling to ransom. Where the remaindermen have no family ties, this could be even more difficult. Agriculturally-conscious solicitors have been reconsidering the wills of their farming clients and advising amendments in appropriate cases.


Similar questions arise when negotiating the division of assets on separation or divorce. It is not certain whether or to what extent SFP entitlements may have value, but matrimonial lawyers need to be aware of the point.


The new system promises to be simpler and more elegant to operate than the several different support schemes of the past. However, in the transition there is much that can entrap the unwary.


Geoff Whittaker is a consultant and adviser to the Agricultural Law Association