A recent case in Scotland has highlighted the care needing to be taken by landowners to avoid being held “vicariously liable” for the actions of workers and employees on their land, and the heavy penalties that can be imposed – by removal or reduction of farm subsidy payments. This is an extreme example that shows just how vulnerable landowners can be to regulations that affect their receipt of subsidies.
In the recent case from the Glasserton and Physgill Estates in Galloway, although the gamekeeper was initially found guilty for the poisoning of a buzzard, the landowner was also found to be “vicariously liable” for the poisoning. This was despite there being no evidence that he knew about the poisoning at the time, let alone instructed it. What this means, simply, is that the landowner was punished for the actions of his employee (the gamekeeper), firstly with a small fine (of less than £700), but much more seriously with a reduction of his farm subsidy payments, which was reported to run into five figures.
This is the first case in which the new Wildlife and Natural Environment (Scotland) Act 2011 (“the WANE Act”) has been used against a landowner in this way, and although this act does not apply to England, it has possible implications south of the border. Under the WANE Act, “There is a proactive responsibility placed on those who employ gamekeepers to run shooting estates, to ensure that it is done within the parameters of the law.” This is a reminder to landowners of the importance of being diligent when allowing employees and other workers to act on their behalf on their land. This may be especially true of smaller shoots, where professional agents with expertise in managing against liability are less likely to be involved, but where Statutory Management Requirements (SMRs) under cross-compliance, especially SMR2: “Wild birds”, could lead to landowners being punished for actions carried out by others on their land.
So, while there is currently no law in England explicitly linking crimes against wildlife with a landowner’s “vicarious liability”, the same legal principal could apply where an act carried out by an employee, or by a third party contracted to carry out work on behalf of a landowner, is closely connected to their work. In England, this can be applied in connection with farmers’ cross-compliance. The main point to be aware of is that the Rural Payments Agency can impose a very significant penalty by reducing SPS payments, even if the breach was made by someone other than the person who receives the payments.
It is not only employees that can be held to breach cross-compliance on a farmer’s land, of course: any workers, whether employed, self-employed, or engaged as contractors, licensees and even neighbours invited onto land under an informal arrangement can cause breaches of cross-compliance. What limits apply to the responsibilities landowners have for the actions of all these? This is a matter under review by the RPA, following a recent Dutch case which found that the all-important question is: what was the landowner’s intention in allowing someone to carry out an activity on their land? For example, what if a shooting guest accidentally kills a protected bird, or the oil man accidentally causes a fuel spillage into your stream? Hopefully the RPA will apply this sensibly. It is worth remembering that your farm subsidy payments are vulnerable from so many different angles, especially with an RPA that takes your money first and asks questions later!
