Land Journal

Joined up thinkingHow a map browser allows Ireland to share development policies

PG. 16

On the caseImportant legal implications of recent court judgments examined

PG. 20

Making forests payCan woodlands be economic in the face of pests and other threats?

PG. 6

July/August 2015rics.org/journals

The potential of natural flood managementPG. 10

Going with the flow

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BBL Property is a long established, independent consultancy specialising in the recruitment of Surveyors at levels across all disciplines UK wide.

Are you seeking fresh employment or do you require additional staff?

With approved, preferred and/or sole supplier status BBL recruits for financial institutions, local authorities, private practice firms and corporate organisations nationally with a particular reputation for addressing skills shortages via transitional training for Surveyors moving from one specialty to another.

To discuss your next career move, staff recruitment campaign or the market generally contact us in confidence without obligation or check out our double page spreads in every issue of RICS Modus.

Greg CoyleHead of Property Recruitmentwww.bblproperty.co.ukBBL Property (a specialist division of the BBL Group)Direct Dial: 0208 514 9116gregc@bbltechnical.co.ukWe can also be found on www.ricsrecruit.com

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Land Journal is the journal of the Environment, Geomatics, Minerals and Waste, Planning and Development and Rural Professional Groups

Advisory group: Tim Andrews (Stephenson Harwood LLP), Philip Leverton (College of Estate Management), Rob Yorke (rural chartered surveyor), Michael Rocks (Michael Rocks Surveying), Tim Woodward (rural chartered surveyor), Michael Birnie (Buccleuch Estates), Marion Payne-Bird (consultant), Frances Plimmer (FIG – The International Federation of Surveyors), Duncan Moss (Ordnance Survey), Kevin Biggs (Royal Bank of Scotland)

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C O N T E N TS

4 From the chairmen

5Update

6Making forests payGraham Taylor asks whether it is possible to achieve economic resilience for forests and woodlands in the UK in the face of pests and other threats

8Striking a balanceRob Yorke reports on a long-running moorland project that is trying to resolve the conflict between birds of prey and driven grouse shooting

10Going with the flowThe potential for using natural flood management in the UK is examined by Mike Norbury, Dr Paul Quinn and Charles Cowap

14Planning aheadThe pros and cons of different viability review mechanisms in development schemes are outlined by Victoria Critchley

16 Joined up thinking Cathal Black explains how a map browser is allowing Ireland’s development policies to be shared

18Smarter societiesVictor Wai-tak Ng argues that geospatial data and digital communication should be available to all to combat city poverty and deprivation

20On the caseAllis Beasley outlines some recent court decisions that established important principles of law

24 Changes to old tenancies Jeremy Moody reviews a wave of changes to UK agriculture tenancy law

FROM THE CHAIRMEN

C H A I R M E N ’S C O L U M NRICS LANDJOURNAL

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Barney Pilgrim FRICS

LAND & RESOURCES GLOBAL BOARD

The remit of the LRGB is to oversee and guide the more global output from the various land group professional groups. A new output on ecosystem services is ongoing and this emerging sector of

I had the pleasure of catching up with many of you at our very successful rural conference in Cirencester on 18 June. There were a number of highlights including the lively panel session, “Land – can it keep delivering?” which encapsulated the pressures on land and competing opinions on land use. Another highlight was our 2015 RICS RAU Annual Fellowship in Land Management paper on strategic estate management from Charles Cowap, which will be available for members shortly by emailing fmannix@rics.org. A strong investment theme, in particular, the Map of Agriculture project garnered a lot of attention. A “content map” of the larger conferences providing a neat snapshot of the main themes that emerged, will be available for members on the website (see www.rics.org/rural).

Rural board member Neil Gladwin joined RICS South West at its inaugural breakfast at the Royal Bath & West Show in May where he was joined by NFU President Meurig Raymond. Our new rural online community goes from strength to strength and I encourage you all to join. Email fmannix@rics.org for details.

RURAL

John LockhartFRICS

By now the dust has settled on GeoBusiness 2015, which included over 2,000 delegates from more than 45 countries. It also saw the Institution of Civil Engineers join us as key industry collaborators (along with TSA, CICES and AGI) and this was reflected in a conference programme which bristled with BIM and technology.

Two of the articles within this latest issue of the Land Journal also focus on technology and its use as a collaborative tool. The Myplan.ie piece highlights the ground breaking work done in Ireland to bring together a multitude of different data platforms to help create an online GIS driven tool of enormous potential and power. The article from Hong Kong on smart cities is also of great interest. The

GEOMATICS

ChrisPreston FRICS

In the June/July journal article on Neighbourhood Plans I referred to the first business-led plan in central Milton Keynes being held back by an alleged lack of funding for its referendum. It has now taken place.

Both businesses and residents are entitled to vote and they did so in great numbers. Taking place alongside the general and local elections, around 100,000 people voted, with 356 businesses in favour and 47 against, with one rejected paper, a turnout of 63.8%. Of the residents, 89,801 people voted ‘yes’ and 17,033 ‘no’.

Planning and development surveyor Jeremy Edge was the plan’s ‘Examiner’. All the documents and timeline can be found at http://bit.ly/1GYvUPP.

Also in May, RICS ran an excellent conference on smart cities. One thought raised by the audience was “what about towns and the countryside as well as cities: shouldn’t they be smart too?"

It is humbling to note a smart villages initiative running in the developing world, which supports not high-tech, IT systems driven technologies, but simply the development of off-grid electricity (http://e4sv.org).

The organisation argues that for the estimated 1.3 billion people without access to electricity, little progress can be made to develop their economies and improve lives.

A workshop in Arusha, Tanzania, explored this challenge, with many attendees recalling the sense of injustice when competing for college places against students in towns who could study into the evening with the benefit of electric lighting: simple stuff that we in the UK take for granted.

PLANNING & DEVELOPMENT

Paul CollinsMRICS

expertise has really started to gain traction with various global and national bodies. UN-Habitat and Food and Agriculure Organisation is particularly interested (as is the famed Dutch Kadastre) because this subject sits quite nicely alongside our RICS research work on the ‘valuation of unregistered land’.

We all know the stats on ‘70%’ of land is unregistered – this does not mean that no-one owns it but that it is outside the ‘formal’ market and therefore legal and governmental frameworks. Much of this unregistered land will be state or communally owned (by a tribe for instance) and the valuation of such (even in a basic manner) is key to enabling some form of revenue raising for infrastructure development. The LRGB has discussed the new global 2nd edition of the Valuation of mineral bearing land which has undergone an open consultation process and has also been involved in the evolution of the RICS position on smart cities.

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UPDATE

U P DAT E RICS LAND JOURNAL

ConferencesEnvironment and Resources Conference8 October, Holiday Inn Filton Bristol The conference returns this year to provide insights in potential developments and their likely benefits, together with the opportunities for mineral surveyors and waste management experts. Sessions will explore mineral rights and the law, EU concerns over mineral development and environment conflict and how waste/mineral businesses deal with environment regulators.n www.rics.org/envandresources

RICS Rural Conference7 October, Hexham Auction MartKeep up to speed with the latest development in the rural sector and meet colleagues from across the region to discuss, debate and learn the latest solutions at this must attend event. n www.rics.org/northrural

Coastal path boosted The National Trust is supporting the creation of new pathways to access along the whole coastline of England, Wales and Northern Ireland as part of its 50 year Neptune campaign celebrations. The coastal path should be taken forward by the UK government in England as a key piece of national infrastructure, the trust says. A stretch of coast at Great Orme, north Wales has been acquired, including 56ha of Parc Farm, which is one of the top botanical sites in the UK and rich in archaeology.

Nene Park TrustAn opportunity has arisen to join the Board of Trustees of Nene Park Trust. For the past 27 years, the trust has managed the 697ha Nene Park in Peterborough, and currently spends over £1.8m per annum on providing the park which welcomes over 1.5 million visits a year. This work is entirely self-funded through income from commercial and park properties, concessions and investments.Following the retirement of one of the trustees, the board is seeking an individual with land or property management experience at a strategic level. For further information contact Phil Rolfe, Company Secretary, at nphil.rolfe@neneparktrust.org.uk

Investment growthTo demonstrate how the UK business environment is changing and how international trade affects UK surveyors, RICS has produced an animated film and case studies involving UK members who have worked on projects. n rics.org/ukbusiness

Small Business HubThe Small Business Hub has been relaunched on the RICS website, providing access to a range of services to support members in the day-to-day running of their business and management of red tape.

A key resource is the Small Business Toolkit, a series of factsheets on starting up a new business, developing a business plan, business development, practice finance and people management.

The portal also helps to manage red tape, with links to guidance on data protection law, employment law and environmental regulations, plus a series of factsheets offering guidance on important legislation for SMEs.

RICS also partnered with legal service providers to offer free guidance on legal issues and legislation updates.n www.rics.org/uk/knowledge/small-business-hub1/

I would like to thank the 97 delegates and five speakers who attended our Environment and Resources conference in Nottingham, which was a great success. There were a few comments on the age profile of the audience, but I spoke to three students who were sponsored by the board and two graduates doing their APC, which helped to bring the average age down.

There are jobs being advertised in our area as I write and it is important that we keep working to promote the sector and ensure there are courses to train surveyors. Hopefully, the APC review will make becoming a chartered minerals or environmental surveyor more enticing, because if we do not grow our numbers we may find other professionals doing the work.

To promote RICS, I have just given a talk to a 60-strong group of 6 and 7-year-olds using fossils and crystal specimens. I’m not sure how many budding surveyors there were among them but I was definitely asked a different set of questions to my non domestic rates talks.

Our 8 October conference will take place at the Holiday Inn, Filton, Bristol. Topics will include mineral rights and the law, EU concerns regarding mineral development and environmental conflicts and waste assets – the local authority perspective.

ENVIRONMENT & RESOURCES

AndrewFitzherbert MRICS

issue of ‘digital inclusion’ is an important socio-political driver behind smart city development and the Hong Kong initiative to create thousands of free public WiFi hotspots may help to this end. BIM, as we all know, is a ‘cog’ in the smart city machine – let’s make sure this technology is for all of the people.

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FO R E ST S

Making forests paythe corner to create a future crisis?

The answer is about mitigating risk. With shortening rotation lengths and tree breeding in plantation forestry across the world helping to keep the sector ahead of, or able to react to, disease threats, the financial risk of pathogenic attack diminishes.

The lessons from private estate forestry in the lowlands is to retain a wide array of commercial species; if 10% of stands are lost to disease, this is relatively easily dealt with. With 90% of a single species, be it upland spruce or lowland ash, the arrival of large scale pathogenic attack leads to economic disaster.

The challenge in the uplands will be to find non-Sitka alternatives that grow and provide a return in the harsh conditions where little else thrives. In the lowlands, in contrast, there are up to 60 species to choose from, but there is still a danger that managers favour too many of the

wrong species leaving markets with insufficient volumes of single

species raw material to adjust sawing/processing

capacities. This leaves the new species with a single biofuel outlet.

2: Structural and age-class diversity

The current vogue in forestry of continuous

cover forestry (CCF) is another case of action/reaction.

The reaction against large scale clear fell forestry is understandable. There are negative impacts of landscape change, fluctuations in environment, higher windthrow risk, pest population explosion and adverse PR. Added to this are the challenges of higher management and harvesting costs, and an immature UK timber market for large dimension timbers.

Inherent within CCF is the desire

Everybody in the forestry world is talking about resilience, specifically the threats from climate change and pathogens. There has been a rapid rise in

damaging tree pests and diseases since 1995. Phytophthora ramorum, Dothistroma, oak processionary moth, the list is growing and the newest threat – Chalara fraxinea – is now decimating the nation’s ash stock.

In all this hue and cry, economic resilience is often overlooked. With the diseases assailing woodlands, surely all hope for a financially self-sustaining woodland property is lost. There is an element of truth in this: diseases affect growth, growth affects yield, yield affects return. Ask any asset manager or farmer and you will get a clear answer that lower yields reduce profitability and capital values.

The often repeated adage ‘The woodland that pays is the woodland that stays’ is a sound edict, notably for private owners, who have to work exceptionally hard in what is a very dysfunctional market. For many, the important leg of economic sustainability appears to have got lost in the environmental and social long grass.

The impact can be seen across many of England’s lowland woodlands. Abandonment, key biodiversity indicators falling steadily, increased deer browsing causing losses to woodland flora, competition from invading species, sycamore, rhododendron and grey squirrel, all providing a snapshot of the effects of closing the woodland gate.

So, is it possible to achieve economic resilience with woodlands across the whole of UK?

There are six key principles that wise silviculturalists have been applying for decades. Those who have committed to it for three or more generations have benefited economically, socially and environmentally. The focus, however, must start with economics:

1: Species diversityA handsome tax free income can be made in commercial forestry. The big question is, with 55% of the nation’s forestry trees being a single species – spruce, what pathogen might be around

In Ash – Chalara fraxinea (left) Dothistroma in Pine (right)

Graham Taylor asks whether it is possible to achieve economic resilience for forests and woodlands in the UK in the face of pests and other threats

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to increase the structural diversity in a woodland stand, both to maximise photosynthetic gain and as a buffer to climate change, pest and diseases, while also reducing wind instability.

The delivery of this diversity via CCF is not always the right approach. If structural diversity can be achieved through age classes and mixed species across a woodland holding, then similar financial benefits accrue without the management headache that CCF can cause. If an episode of excessive wind or pathogen attack coincides with single species and maturity of a stand, then this often has severe negative financial impacts. A woodland of diverse age and structure has an inbuilt economic resilience.

3: Growing markets and ensuring sustainable supply chains Many woodland owners have tended to ‘shut the gate’ during periods of market weakness. While understandable, this has cumulative impacts on the forestry stands (sub-optimisation of growth) but specifically has weakened both the harvesting supply chain and the hardwood sawmilling sector. This remains notably apparent in south-west and south-east England. To generate resilient and optimal forestry incomes, it is necessary to support the market for which the trees are grown. Sawmills require raw material on a sustainable basis. Contractors and hauliers, too, need a ready supply of material to ensure ongoing investment in staff and equipment.

At the heart of this is an understanding of sustainable yield from a woodland holding. As with ‘pound cost averaging’ for financial investments, resilient returns are provided from forestry when enterprises produce a high-quality product that sells consistently throughout market cycles, not just during the peaks.

4: Scale and efficiencyJobs can be done very well in a hugely inefficient manner. Targeting the right tool in the right place with the correct operator makes a huge impact on operational efficiency and optimises financial resilience.

5: Non timber forestry incomeGenerating additional revenue through a sporting or other recreational enterprise helps to create the financial motive for woodland management. There are inspiring examples across the country where the two enterprises co-exist comfortably, and create an inbuilt resilience to woodland economics.

However, for every positive example, there are many situations where recreational income causes additional forestry expenditure or affects net revenue from timber sales, thereby reducing economic resilience.

6: Pest and pathogen controlBiosecurity is a word on people’s lips, but action on the ground is patchy. While controlling windborne fungal pathogens is impractical, precautionary actions such as asking contractors to wash machinery after working on infected sites are a reasonable step. The cost of such mitigation measures is marginal compared with the costs of dealing with a major pest outbreak.

Even with more actionable challenges, for example grey squirrels and deer species damage, there can be a reluctance, which will ultimately lead to economic non-resilience (see panel).

Graham Taylor is Director at Pryor & Rickett Silviculture graham@silviculture.co.ukTo generate resilient

and optimal forestry incomes, it is necessary to support the market for which the trees are grown

“

An oak saw log worth £1,500 in 100 years time – discounted at 4%, an undamaged tree is already worth £29.70 now. However, oak firewood tree worth £30 in 50 years time – discounted at 4% is only worth £4.22 now, barely covering the costs of establishment.Opportunity cost of failure to control grey squirrel = £25.48 per final crop oak tree.

A non resilient approach to grey squirrel control

Forestry owners need to grasp the issue of structural, age class and species diversity. But more than just diversifying, they need to commit to supply chains, know the nature of the species and for which market they are growing it into the future. They can then apply consistent and efficient silvicultural practice to those stands, including adequate pest and pathogen control to achieve the long term aim of a high-quality conifer or broadleaved sawlog. History has financially rewarded those who have done this and will continue to do so. C

More information>

The author will be speaking at the Resilient woodlands: meeting the challenges conference on 1 October at the National Motorcycle Museum in Birmingham, organised by the Royal Forestry Society and the Woodland Trust. RICS members are entitled to discount rates by quoting RICS0110 when booking. For full details, visit http://bit.ly/1QsoYkP.

The conference counts towards CPD points for a number of organisations.

Related competencies include Forestry and woodland management

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U P L A N D S

Rob Yorke reports on a long-running moorland project that is trying to resolve the conflict between birds of prey and driven grouse shooting

Striking a balance

irds of prey (raptors) have haunted the uplands for generations but the conflict with driven grouse shooting has resulted in continued persecution of some raptors since it was made illegal to kill them 50 years ago. The question is how to manage land for a range of outcomes including an economic return from driven grouse shooting, delivery of public benefits

and enhancing the health of upland wildlife.In 1997, the Joint Raptor Study by the Institute of Terrestrial

Ecology and Game and Wildlife Conservation Trust (GWCT), sponsored by the Royal Society for the Protection of Birds (RSPB) and the Joint Nature Conservation Committee, confirmed that raptors do have a negative impact on red grouse populations at low densities.

This led to a partnership being set up in 2007, comprising GWCT, RSPB, Natural England, Scottish Natural Heritage and the landowner Buccleugh Estates to run the Langholm Moor Demonstration Project (LMDP). The core aims of the monitored project over 10 years are to re-establish Langholm Moor as a driven grouse moor and meet specific objectives enshrined within the moor’s Special Protection Area (SPA) and Site of Special Scientific Interest nature conservation designations.

Over the 12,140ha project area, the LMDP set out to deliver four specific elements:

b maintaining the hen harrier population as a viable component of the SPA

b extending and improving the heather moorland habitat beyond its state in 2002

b harvesting a sufficient number of grouse to ensure the moor reaches a financially viable state

b strive to demonstrate how to resolve conflicts between moorland management for raptors and red grouse.

Reviews are essential within such complex long-term projects and for the current seven year review, a traffic light system was applied to a list of criteria aimed at delivery of the four elements.

Green light for habitat, raptors and stakeholder engagement: Great advances have been made in heather management on areas badly affected by disease, heather beetle and over grazing. New re-seeding techniques involving selective use of herbicides have paid dividends and new stock fencing, funded by Rural Development Programme payments, have enabled a reduction and reallocation of sheep numbers with the result that heather has recovered well.

A sharp increase in hen harriers, alongside other raptors including merlin, peregrines, short eared owls and buzzards was reported across the project area. A number of landowners and managers and stakeholders have visited the LMDP, and an acknowledgment that raptors are now part of a functioning driven grouse moor is equally important as sharing new practices on upland habitat management.

Amber light for waders, passerines and compatible management for red grouse and raptors: This reflects the fickle nature of the project. Weather conditions have a direct impact on how wildlife thrives or otherwise and the presence of certain species reflects the general health of a moorland. As such, meadow pipits, along with voles – two main prey species of hen harriers − are doing well, unlike the population of upland waders.

Compatible management for red grouse and raptors involved targeted predator control by a team of gamekeepers resulting in benefits for both. Smelly, untidy nests of hen harriers often attract foxes (http://bit.ly/1dWOBfP) and their control, along with carrion crows and stoats, has most likely assisted red grouse breeding productivity. However, such beneficence is seldom shown in nature and 78% of adult red grouse found dead had been predated by raptors – although it was impossible to identify the actual species responsible (http://bit.ly/1CepAFu). This appears to limit the recovery of red grouse populations and explains why illegal persecution of raptors continues on some grouse moors.

The provision of supplementary food, consisting of defrosted chicks and rats at nest sites where harriers are most likely to

B

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target grouse chicks, has worked well. This diversionary feeding has been viewed by some as the silver bullet in mitigating the impact of raptors on grouse. However, although it was cost effective over the first six years covering up to three hen harrier nests, the workload became economically unviable when numbers increased to 12 nests in 2014.

The Scottish government recognises that heather moorland, as an internationally recognised iconic landscape, must be maintained. LMPD is surrounded by improved grassland for sheep and dark conifer forestry plantations, and has abundant fauna and flora and wildlife including short eared owls, oystercatchers, moths, and orchids on the newly heather seeded slopes. This contrasts to other relatively wildlife-free moorland, such as the Black Mountains in South Wales (which lost its grouse management years ago), and probably reflects some of the ‘return’ for the £2.5m poured into the LMDP to date.

Red light for low number of red grouse for driven shooting: The LMDP partnership’s agreed 2,000 bird (1,000 brace) annual target was set as a minimum level to recoup the high level of investment in restoring the moorland habitat and funding the gamekeeper team.

The day that ‘guns’ are prepared to pay the same value for a brace of walked up grouse as a brace of driven grouse (currently £125-£175) has yet to materialise. At the moment, driven grouse shooting is one of the few strong incentives for sustainably financing the environmental management of moorland.

To use some of the modern environmental jargon shooting is recognised as a cultural ecosystem service, harvesting a sustainable wild food (provisioning ecosystem service) that can enhance habitat and biodiversity. Increasingly, these services must demonstrably support other environmental benefits – supplying clean water and moderating water catchment run-off (regulating ecosystem service), enhancing carbon and blanket bog management (supporting ecosystem service) and providing landscape enjoyment (subjective) and a ‘sense of space wellbeing’. All of these elements are increasingly important within the current social and climatic conditions of upland areas, which have to fight to receive any funding, public or private.

This inability to recoup any of LMDP’s £225,000 annual expenditure on maintaining habitat for biodiversity, preventing wild fires, providing ‘downstream’ benefits at no cost to taxpayers, is troubling for future upland management. This raptor/grouse conservation conflict is not, as is commonly perceived, a human-wildlife one but human-human, between those who hold raptors dear and those with an interest in driven grouse shooting. Even with all the best practice in the world, there are risks that value judgments could frustrate this challenging and fascinating project seeking brighter futures for grouse moor managers, wildlife and delivery of public benefits.

While the successful work to date from LMPD is being shared with others, there remains a requirement to be bolder in exploring new adaptive management practices that can help to find a green light solution for the compatible management of red grouse and raptors.

There is room to improve poor land management practices in upland areas. Heather burning of blanket bog, inappropriately located farm tracks and poorly undertaken predator control will continue to seep into the public spotlight, who will, in turn, seek more costly regulation across driven grouse moors. Otherwise, as GWCT's Scottish Director Adam Smith warns, grouse moorland owners get used to the “inconvenience of living alongside raptors”, the unintended consequences of licensing, increased regulation on grouse economics, raptors populations, upland wildlife and moorland management could be dramatic and unwelcome for all. C

A version of this article first appeared in the Scottish Sporting Gazette

Rob Yorke FRICS is rural chartered surveyor and commentator and a member of the Land Journal Editorial Advisory Group @blackgullry/ry@robyorke.plus.com

Related competencies include Management of the natural environment and landscape

mLangham head keeper (right) and GWCT director Adam Smith

nLangholm buzzard fledgling

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F LO O D P R E V E N T I O N

Going with the flow

The potential for using natural flood management in the UK is examined by Mike Norbury, Dr Paul Quinn and Charles Cowap

Flooding is the UK’s most pervasive environmental hazard, with damage to 7,000 properties during the winter storms of 2014. Some £82bn of assets

are at risk from river flooding, nearly one in six properties, due to floodplain development, catchment impermeability and climate change. A new report by the Department of Environment, Food and Rural Affairs and Environment Agency is due to present new statistics, calculating that the economic damages from previous flood events, and scale of risk, is much larger than previously thought. The report awaits ministerial sign-off.

Grassroots action has begun to address natural risks, led by the Association of British Insurers (ABI) Flood Free Homes campaign, backed by the National Flood Forum, Friends of the Earth and others. At its launch, ABI Deputy Director General, Huw Evans, said: “The need for this campaign to address the UK’s rising flood threat has never been more important. No action is not an option. Last winter’s floods highlighted the trauma and devastation flooding brings. How we manage our land and water has to become central to government decision making.”

The campaign calls on government to invest £1bn a year to keep pace with climate change, so that no home is at high flood risk by 2025. Concurrently, RICS has drafted a new information

damages, a series of other drivers call for a new approach to flood alleviation:

b Government spending reductions: the National Audit Office monitored a 10% decrease in the Environment Agency’s flood budget over the previous parliament.

b EU Water Framework Directive (2000/60/EC): with good ecological status required in all water bodies by 2015 or 2027, this sets a naturalistic, near undisturbed standard to achieve. Fewer

paper: Flooding – issues of concern to chartered surveyors (residential).

This sets out good practice valuation protocols to identify flood sources and their probability. The risk of flood impacts property value, with RICS foundation research deducing that previously flooded homes may need to be discounted by 20%-40%. Where flood risk is identified, surveyors discounted by a median value of 12%, survey data found. In addition to residential economic

lBelford’s “Leaky-Dam” (top and below) can slow fast flows

Images © Authors

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than a quarter of surface water bodies achieve this, with artificial and heavy modification cited as a key reason.

b Climate change: the increase in extreme summer downpours could be five times the current rate of extreme rainfall events – exceeding 28mm per hour, according to a paper by Elizabeth Kendon et al in Nature Climate Change.Flood mitigation can start where precipitation strikes the earth’s surface, the fate of that rainfall being highly influenced by how the landscape is managed. Evidence suggests that there are higher runoff rates in well drained landscapes where fast flows are left unchecked. Natural flood management (NFM) seeks to retain the raindrop where it falls and slow river flow by a series of interventions to prevent rapid sheet runoff combining with nearby pathways which may have propagated a larger flood magnitude.

Concurrently, in May the Royal Horticultural Society launched the “Greening Grey Britain” campaign, against a background of three times as many driveways being paved than a decade ago. The rise means less water infiltrates into the soil and almost 100% of rainfall becomes direct runoff, exacerbating surface runoff (pluvial) flooding. Presenting NFM to this year's North West Regional Flood and Coastal Committee Conference, Mike Norbury said:

“It is contradictory that a government with a long-term economic plan rescinded the requirements for planning permission to pave a driveway, particularly given the recent economic damages of pluvial flooding and that greened properties have, on average, 20% higher market values than those without greenery.”

Efficient farmingNatural flood management represents a form of economically efficient farming, since interventions not only retain field runoff and sediment, but the valuable nutrients dissolved in that flow.

Sediment accounting studies calculate that ploughing is implicit in suspended sediment river loss at a rate of 300kg/yr-1 per person. Loss of topsoil is in no-one’s interest. A recent University of Sheffield report warned that there could be only 100 UK harvests left, due to excessive nutrient leaching. On-site silt retention, dredging and reapplication (U10 waste exemption) avoids valuable sediment being lost down the river.

Farmers are custodians of landscapes. In a changing climate, water farming through runoff attenuation may be a new

paradigm that alleviates downstream flood risk, holds back nutrients, and improves river water quality while enhancing ecosystem services.

The need to slow and store runoff at source, close to where the flow is generated, is fundamental to the NFM approach. This means that farmers and farmed land will be vital in addressing the problem. Equally, there are many opportunities in the farmed landscape to intervene in runoff management.

However, there is a need to tailor the type of runoff attenuation features

Attenuation features can be tailored to landscape locations such as at Belford.

Figure 1

n

Belford attenuation schematic. Source: Newcastle University in partnership with the Environment Agency.

(RAF) in accordance to the location in the landscape and how the runoff is lost. Figure 1 shows how different ponds and barriers can target flow pathways in the field, close to the channel and on local floodplains.

The greatest potential of NFM is in working closely with the farming community to deliver these features. Because pollution, climate change and biodiversity are equally important to the health of catchments, it is important for regulators and funders to create a fair deal for farmers.

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designed to create storage and then to drain slowly.

The RAF holds 750m3 (750,000 litres) of water when full to crest, crucially, slowing the flow rates as the flood peak rises. This significantly spreads the flow from the catchment hinterland to the urban receptor. The interventions meant that during the 6 September 2008 flooding, the extent and depth of inundation were minimised in Belford, while in Morpeth, a town 48km to the south, an estimated 1,000 properties flooded, at a cost of £10m.

There are now more than 35 RAFs in Belford, capable of containing intense rainstorm runoff, including the 28 June 2012 flooding in Newcastle, dubbed

Belford trialThe village of Belford in Northumberland was one of the first catchments proactively to trial NFM. Funding constraints and riparian urban sprawl meant conventional engineering approaches were unviable. Belford had a long history of flooding, with 35 properties at risk from an extreme event, several of which flooded almost seasonally. Notably, on 1 July 1997 the East Coast Main Line was temporarily shut when a surcharging culvert flooded the tracks. There was also flooding in January 2005 and July 2007.

Together, the repeat flooding and media pressure created the impetus for an alleviation scheme. Work began in 2007 on creation of a bund across a flow path

n

Ponds in Belford fillings and emptying during a rainstorm

Figure 2

Source: Wilkinson, M.E., Quinn, P.F. and Welton, P. (2010) Runoff management during the September 2008 floods in the Belford catchment, Northumberland. Journal of Flood Risk Management, 3(4) pp. 285–295.

the Toon Monsoon, when 50mm of rain fell in two hours. As the storm tracked northward, there were no recorded flood incidents in Belford, unlike in Morpeth, Rothbury and Alnwick.

Research has shown that each of the features performs a small impact on the flood wave peak. It is this network that aggregates to reduce peak flows by significant amounts. For example, a pond structure has been optimised to store 50% of the channel flow and any overland flow generated in the field during the peak of a storm. The pond is designed to empty again within 10 hours so that the storage capacity is regained, such as in the September 2008 flood event (Figure 2). Although the pond overflows when full, the flow is significantly slowed because runoff pathway lengths are extended and water directed to new rough ground and woodland storage.

These interventions are now expanding nationwide, with 50 schemes in the UK offering multiple benefits not just rurally, but presenting opportunities for urban renewal in parts of Merseyside, for instance (Figure 3).

Wider benefitsRural settlements such as Belford typically fail to receive grant-in-aid funding for structural flood defences due to the low benefit-cost ratios resulting from the small number of properties at risk. For example, engineering consultants recommended the construction of a flood storage reservoir to capture a 1:50 year flood event in Belford at an estimated cost of £2.59m, providing protection to approximately 35 properties. The final estimate of the cost of the Belford NFM scheme is less than £200,000. The experiences gained in the project means, with hindsight, that a working estimate of an investment of £100,000 in NFM can address local flooding issue at a scale of 10km2.

RAFs serve multiple benefits. The retention of sediment-bound phosphorus suspended in runoff may form an intrinsic element in a farm or new development Integrated Pollution Prevention Control plan.

Runoff retention is monitored to recharge shallow aquifers too, and so can be used to address water stress and aquifer over-abstraction. Most of south-east England relies on groundwater abstraction for its water supply. During the drought of 2010-12, the Met Office observed the UK experiencing 85% of its long-term average rainfall, leading to

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restrictions and hose-pipe bans. RAFs may be deployable in areas

of over-abstraction and water table drawdown, and fundable under the Environmental Unit Improvement Charge (EUIC) payments. The Environment Agency recently consulted on using EUIC for funding hydromorphology measures, where abstractions were damaging the water environment, and interventions could be shown to alleviate this.

A question remains over whether agricultural policy has gone far enough in recognising the need to integrate agricultural management with measures such as natural flood management and RAFs.

Despite the ‘greening’ measures and the introduction of the new Stewardship scheme, the emphasis is still on the retention of environmental features within a productive farming landscape, rather than a wider view of a working environment.

Such a view would incorporate the full range of ecosystem services in a way

that sought the best net benefit from land management – and incentivised land managers to achieve this. Schemes such as on the National Trust’s Holnicote Estate could act as a model for the future. Small modifications have been made to the profile of fields above the flood-prone Exmoor village to hold back excess water flow so that it is released more naturally into the river systems. The tenant farmer has been provided with a new shed to reduce his need to outwinter stock. The small village has already been protected from intense rainfall. Yet some of these measures may run counter to the requirements of the latest Common Agricultural Policy (CAP) measures. Organisations such as the thinktank Groupe de Bruges have been arguing for some time for a CAP based on payments for the full range of ecosystem services.

There will be some instances where the CAP measures are helpful to natural flood management:

b Higher tier countryside stewardship going live in 2016

b The countryside productivity scheme.

Local flood levy money was used to pay for the initial runoff interventions in Belford. Regional flood grants and grant-in-aid must assess the potential of NFM to become part flood impact studies, even though the impact is difficult to quantify using traditional cost-benefit analysis. Natural flood management does not profess to be the panacea

Mike Norbury is a joint research associate at Waterco Consultants and at the School of Environmental Sciences, University of Liverpool michael.norbury@waterco.co.uk

Dr Paul Quinn is a senior lecturer in catchment hydrology in the Department of Civil Engineering and Geoscience at Newcastle University p.f.quinn@ncl.ac.uk

Charles Cowap is a chartered surveyor and tutor at Harper Adams University cdcowap@gmail.com

At Stanley Bank Meadows, Saint Helens, Merseyside, NFM posed a viable low cost means to alleviate and attenuate flood flows. Given the dense willow and available tree trunks, log dams seemed like the best option

Figure 3

Source: Liverpool University, St. Helens Council, Natural England, Waterco Consultants and others, working in partnership. Google Earth satellite imagery, Environment Agency flood extent data and Ordnance Survey Mastermap data.

to the water uncertainties facing UK agriculture, but what it does seek to do is retain water value on the land, its assets for abstraction, and liabilities, for flood mitigation.

Despite the initial difficulties of convincing the scientific, farming and regulatory communities of the potential of NFM, it seems to be the case that only when end users have been involved in delivering the scheme that they gain the confidence that the NFM has value. As Phil Welton, Regional Flood and Coastal Risk Manager for the Environment Agency, stated in an official video (http://research.ncl.ac.uk/proactive/belford/videos/): “For communities such as Belford that cannot receive traditional defences, this sort of approach gives real solutions, real benefits and at a fraction of the cost.” C

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D E V E LO P M E N T

Image © iStock

The pros and cons of different viability review mechanisms in development schemes are outlined by Victoria Critchley

Planning ahead

A n important aspect of development viability is to consider how planning policies can best be secured in changing market conditions. Viability review mechanisms can be a helpful way of encouraging developments to start, secure benefits during the lifetime of large-scale phased development and

allow stalled schemes to become more deliverable. As an alternative to review mechanisms during the life of a

development, growth modelling may deliver more even planning policies (the outturn approach). Viability review is suitable for longer term schemes where the economic cycle may vary. It allows for planning applications to be determined but leaving, for example, the level of affordable housing to be fixed prior to implementation of the scheme. Such reappraisals are generally suited to:

b phased schemes over the longer term b where there has been a significant delay in implementing a

planning consent, particularly where the economic cycle is likely to change significantly

b where the initial viability review was at outline application and where there were significant ‘provisional sum’ assumptions.

Outcomes of pre-development commencement viability reviews should avoid physical changes in the development where reserved matters have been agreed because this would involve further delay and costs. Any proposed changes should be sought in later stages where reserved matters are still to be dealt with, but payment of a commuted sum may be more practical.

Post development (overage) reviews are not appropriate. Planning practice guidance (PPG) on viability says in paragraph 17 that assessments should be based on current day values and costs and considered in today’s circumstances. By definition, this excludes looking back over past performance, and this was clearly expressed in the planning appeal for the Inn on the Green public house in Denham Green (APP/N0410/A/14/2228247).

It also undermines the basis of a competitive return, as envisaged by the National Planning Policy Framework, by introducing uncertainty after the start of the development. This may make funding the scheme difficult or unlikely.

It is important that the drafting of viability review mechanism provisions do not result in uncertainty in the earlier phases, which

would stifle development. Each phase should provide the required returns and secure development funding.

Testing toolsA one-size-fits-all approach will not work effectively in all cases. Each local planning authority (LPA) needs a range of tools to deal with viability and the three fundamental approaches are: 1. Financial viability assessment: similar to the planning application funding valuation assessment (FVA).2. Open book review: full disclosure by the developer of all relevant value and cost factors on an appropriate cycle throughout the scheme. 3. Automated review: of one or a small number of key value or cost factors affecting viability, usually with reliance on simple indexation of key elements, with the remaining inputs pre-agreed.

There may be a number of further options dealing with amending the delivery of planning policy requirements, such as:

b sharing of additional profit, looking at a split of improved viability between developer and LPA to incentivise the developer to optimise performance while ensuring as many policy obligations as possible.

b escalator/cascade of split of improved viability between developer and LPA, particularly of on-site affordable housing.

Review factors b The quality of the process and the reliability of the base input

information is crucial to agreeing robust review arrangements. b The cost and time taken in the negotiation and review

process are major considerations for both developers and LPA. b There is recognition that agreeing terms is about finding

the level or approach at which deliverability of a project and the amount of planning policy objectives (including affordable housing) are in appropriate balance.

b For viability review mechanism to be the preferred way forward, there needs to be broad consensus beyond simply at the hands-on practitioner level. This is particularly relevant for key stakeholders such as local authority councillors.

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b Developers need a reasonable incentive to optimise the future economic outturns of a project so that greater planning policy contributions can be secured. Therefore, the principle of sharing any additional profit is appropriate.

b When considering the options for improving viability to close a gap between what is currently deliverable and a policy level affordable housing obligation, the potential for: — Adjusting tenure in favour of other intermediate products — Provision of affordable housing offsite/ commuted sum should not be overlooked.

There needs to be some choice or a range of review mechanism options to establish the most effective approach. While three typical methods have been identified, it may be appropriate to agree a review process drawing elements from each type.

Pros and consThe approach adopting the same FVA methodology as used in initial planning applications has the advantage of taking into account all relevant factors, based on the market as a whole. It fully reflects viability as at the date of review and in the current market conditions. However, the time taken to review and potential costs mean that this approach could result in significant delays in later phases of a development.

The open book approach considers the actual costs and values of the scheme. It relies on full and detailed disclosure by the developer. It therefore reflects the actual circumstances and accurately assesses the viability of the development, allowing an assessment of additional profitability to be fully measured.

However, this method does not necessarily reflect the market as a whole. It potentially ‘rewards’ inefficient developers and penalises those developers who perform more efficiently than the market. From a practical point, developers are reluctant to disclose this type of detail because it may result in disclosure of commercially sensitive information. It is generally not the method adopted in viability reviews. Elements such as sales and letting terms should be provided.

The third method, automation, works by predetermining a number of assessment inputs, with the key variables to be settled by indexation of previously agreed inputs. While automation allows for a quick and readily understood review, it does not necessarily reflect current market factors of the development at the date of review. This is why an automated approach is not the recommended approach for section 106 BB stalled scheme reviews.

Section 106 agreementsLPA policy will generally express a preference that additional profit should result in an increase in onsite affordable housing. However, flexibility in policy to permit commuted sums in appropriate circumstances is recommended.

Viability reviews should usually be undertaken during the reserved matters application stage on later phases of a scheme, or at pre-specified points (date/ units disposed, etc).

Careful consideration will need to be given as to how this is set out in a section 106 agreement. It will be important to the LPA and applicant to express a range for the assessment, i.e. for the applicant to state the level of obligation above which they would not be expected to exceed and for the LPA to state the level of obligation below which the development will be unacceptable, regardless of the benefits that arise from it.

The methodology may include, for example, specifying the process involved, the basis of model, inputs, basis of return, and site value. The appraisal should always be undertaken prior to the start of a scheme or phase to fully account for the risk the developer is undertaking, and, therefore, the appropriate return.

Whichever approach is chosen, it would be usual to include arrangements for third party determination if agreement is not reached within a specified period. Terms of reference need to be included in the agreement.

Growth modellingWhile capturing changes in development viability in changing market conditions and potentially resulting in additional planning policy delivery for LPAs, viability review mechanisms on multi-phase schemes create uncertainty both for the LPA and developer.

An alternative is to assess viability based on reasonable assumptions of growth, both of values and costs, over the anticipated period of the development. The developer accepts the risk that anticipated growth in sales and costs may be different. The attraction to the LPA is that increased planning policy objectives would be delivered throughout the development.

For the developer, the risk of anticipated growth variations would be outweighed by the certainty of agreed planning conditions, improving funding arrangements. b

This article first appeared in the Terrier Magazine published by the Association of Chief Estate Surveyors and Property Managers in the public sector.

Related competencies include Development appraisals, Planning

Victoria Critchley FRICS is a Partner at Gerald Eve LLPVCritchley@geraldeve.com

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P L A N N I N G

Joined up thinking

Cathal Black explains how a map browser is allowing Ireland’s development policies to be shared

The Irish government’s public service reform plan of 2012 has seen the number of planning authorities cut to 31 from the original 88. In another move to make

greater efficiencies within the planning process, the Department of Environment, Community and Local Government (DoECLG) set out to provide simple to use information on the different planning policies of local authorities.

The result is the Myplan.ie map browser, which improves data sharing at national, regional and local levels, thus supporting the key aim of achieving joined up government. Myplan.ie enables all development plan mapping data to be queried and overlaid with other datasets relevant to planning, including census data, address points, school locations, flood risk zones, and unfinished housing estates.

Business caseThe system also met the reform plan’s vision of harnessing “information and communications technologies as key enablers to delivering improved public services”, exploiting geographic information system (GIS) software and making data available to the public and other public bodies.

Once a business case was developed and approved, a project board of representatives from the DoECLG, local authorities, government agencies and professional planning institutes was put in place.

To establish Myplan.ie quickly, a system had to be developed whereby local authorities would take responsibility for data assembly, quality and updates as they introduced and reviewed their development plans. The system uses Ordnance Survey Ireland (OSI) data and GIS software already licensed by the department, thereby maximising return on investment.

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Cathal Black is Spatial Data Manager, Planning Section at the Government of Ireland Department of the Environment, Community and Local GovernmentCathal.Black@environ.ie

The result was that Myplan.ie was developed for a relatively modest initial outlay of around €150,000 (£111,000) with the majority of the costs associated with data collection and harmonisation. Ongoing costs arise primarily in relation to software and data licences and any further development. The base map data has been supplied by the OSI through its MapGenie webmapping service and other data were consumed as live web services from applications such as those developed by the Heritage Division of the department.

ChallengesTechnically, it was a relatively straightforward task to build a browser that allows the user to view map data for the whole country, having previously been implemented for various organisations as a means to display spatial data.

The challenge Myplan.ie faced was to allow detailed geographical analysis to be carried out using just a browser, pulling all current and differing zoning data from planning authorities throughout the country into one system.

A standard zoning classification scheme, the General Zone Type (GZT), was established as the basis on which local authorities to add their development and/or local area plans. The map viewer is based on the ArcGIS Viewer for Flex application, which allows for interactive maps that can be customised.

Another challenge was that the original zoning data was not always in a GIS-ready

format or it contained topology, geometry or attribute errors.

The DoECLG held a number of workshops and provided local authority planning and GIS staff with training, guidance and a forum to deal with queries.

Initially, a pilot group of five metropolitan planning authorities – Dublin, Cork, Limerick, Galway and Waterford – were the focus for data assembly. Myplan.ie proved very successful in a data sharing/exchange exercise between the department, local authorities and other users. The project requires coordination, not only between the department and stakeholders, but also internally within the authorities for their GIS and planning staff.

After a successful test of the pilot scheme, maps from all the other planning authorities were uploaded. Myplan.ie was launched on 4 April 2012 making zoning data from all planning authorities available to be viewed, compared and analysed.

Local authorities could also develop their own planning approaches with strong efficiency benefits. The work of state agencies such as the National Asset Management Agency, the National Transport Authority, and the Housing Agency have also benefited significantly from Myplan.ie and local communities can view plans affecting their area across city and county boundaries.

Several of these organisations consume spatial data as web services from Myplan.ie. This enables them to engage with neighbouring local planning authorities on a range of issues such

as the public consultation phases of development plans.

Since the launch, visits to the website have been on the increase, with between 600 and 1,200 visitors per working day, the majority return visits. Along with the continual updating of data there has also been additional development to the mapviewer.

Some of the noticeable alterations are at the customer facing front end of the site, such as new data layers, while other developments have taken place at the ICT infrastructure back-end. These include moving the site to an auto-scaled environment and the upgrading of the web application on which the mapviewer is based. These back-end developments significantly improve performance allowing for fluctuations in visitor numbers, the support of additional web services and further enhancements.

Other improvements underway include a multi-platform, JavaScript version of the site and a proof of concept to allow the inclusion of planning application data from local authorities. Northern Ireland Planning Service statutory planning zoning data has recently been added, along with a dynamic link to the Property Registration Authority of Ireland mapviewer.

Myplan.ie was developed around a simple idea at a relatively low cost. The principal challenges were more of an organisational than technical nature, and once established, its value has become clear, ensuring both its future development and increasing the profile of data re-use and shared web services within government and planning authorities. C

More information>

www.myplan.ie

l The browser allows the user to view map data for the whole country

Related competencies include GIS, Planning, Propety records/information systems

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Smarter societiesVictor Wai-tak Ng argues that geospatial data and digital communication should be available to all to combat city poverty and deprivation

Smart city is the current buzzword in the drive to create liveable, green, safe, and sustainable environments.

Information and communication technologies (ICTs), Internet of Things (IoT) with connected sensors, big data analytics, cloud computing as well as the pervasive use of mobile devices and social media has opened up completely new opportunities for administrations and citizens to respond to changes and crises in an informed way. Together they build a platform for collaboration among government, citizens and stakeholders to tackle challenges and shape the city.

Over 80% of daily life information has some spatial dimension. Indeed, location forms the foundation of a smart society. The full potential of geospatial data should be exploited to propel the development of the spatially-enabled smart society.

A smart society conserves resources and the environment and improves citizens’ quality of living through innovation in all fields. It should also use technology and innovative solutions to improve social inclusion and combat poverty and deprivation.

Many countries have started establishing digital inclusion regimes to bridge the digital divide and promote the use of ICTs among the underprivileged, including the disabled, the elderly, and low income groups. Geo-informatics technologies can contribute greatly.

UKThe 2013 Smart London Plan looks ahead to growth in the coming 20 years. It promotes the use of a smart grid to manage the supply of resources, the use of open and real-time data for controlling traffic and mapping underground utilities.

Digital technology has already made a massive change in London since 2007 through implementing smart applications. A web service helps citizens to report, view or discuss the local problems, i.e. at street level, to the responsible government agencies. The developers could make use of the service to design unique user interfaces serving the needs of different communities.

A pedestrian journey planning system was also developed to help citizens and tourists to navigate the city quickly. Its target was to develop a pedestrian network, meeting the needs in 3D space and round-the-clock service.

The 2014 Government digital inclusion strategy sets out 10 actions it will take with partners from the public, private and voluntary sectors to reduce digital exclusion.

ItalyIn Rome, signals from mobile devices are collected to map the real-time patterns of urban activities such as concerts and large-scale sports events. This smart application effectively taps into the popularity of smartphones, which serve as mobile sensors for individuals.

Milan has been reshaped to host Expo2015 through realisation of the

Milano Smart City strategy to become smart, green and inclusive. The underlying vision implies that a smart city not only cultivates its technological component, but combines economic development, social inclusion, innovation, training, research and participation.

It reaffirms that each citizen is unique and all kinds of ‘intelligences’ and diversities create value. The policies also ensure equal opportunities for all kinds of people.

USAA pilot application was developed to track waste disposal in real-time by placing tags on different trash objects. It promotes the behavioural change for environment protection and allows citizens to know more about the impact of the removal chain through the journey of the identified trash objects.

In New York, the latest condition of more than 500,000 trees of different species are displayed via a map interface on a mobile app. It helps users to understand the functions of carbon dioxide reduction, storm water runoff prevention and energy saving of trees, and to raise the awareness of greenery in urban areas.

In San Francisco, a tracking system was developed to capture cabs’ real-time distribution in the Bay Area using GPS data. The pattern of the cabs helps to reveal the living and always-changing map of real life. Similar applications, such as tracking rental bikes in Barcelona and Paris, are developed further in the aspects of fleet management, crowd management and trip planning for tourists.

Image © Shutterstock

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Victor Wai-tak Ng is an RICS member and land surveyor in Hong Kongngwaitak@gmail.comA smart society...

should also use technology and innovative solutions to improve social inclusion

Hong KongThe success of smart city development relies on two keys: robustness of telecommunications infrastructure and data accessibility. Hong Kong has well-established ICT infrastructure and its Internet connection speeds are among the fastest in the world. These enabled efficient communications and real-time data transmission via the World Wide Web.

The Hong Kong Government has implemented a number of initiatives, aimed at enhancing the quality of public service e-delivery. One was to develop a single portal, GovHK (www.gov.hk), launched in 2007 as a gateway where citizens can easily find and use public sector information and services. At present, more than 2,000 sets of free information are available.

In 2010, a one-stop online map portal, GeoInfo Map (www.map.gov.hk), was launched with integrated location information of more than 120 types of public facilities. The MyMapHK app was added in June 2014 for smartphone users to search locations while on the move. All these e-services and initiatives have helped to increase data

accessibility and sharing, and sustain the growth of the knowledge-based economy of Hong Kong.

For the transport department, CCTVs have been installed along major roads, collecting traffic information and monitoring traffic flow. The government further plans to install an array of sensors as the backbone for an intelligent future transport system.

Likewise, the MTR Corporation has made use of the artificial intelligence technologies for train maintenance, while in 2011, the Kowloon Motor Bus Company launched a mobile phone app which operates with the built-in global positioning system (GPS) to provide timely bus information to passengers.

Energy companies in Hong Kong plan to promote smart metering technologies for better use of electricity and water resources. CLP Power Hong Kong, for example, is taking steps to develop a smarter grid to enable safe and seamless connection of renewable energies and electric vehicles, improve power supply reliability at a lower cost and enable customers to take control over their energy use.

There is a need to raise the awareness and understanding of benefits brought by the advancement of technologies, which all citizens should be encouraged to use to enhance their quality of living. Many governments are now starting to place emphasis on strategies to minimise digital exclusion among the underprivileged groups.

Digital inclusion emphasises equality and accessibility for all, focusing on the availability and adequacy of digital infrastructure to give everyone equal opportunity to access internet resources. The government has recently announced its smart city development plan to increase the number of free public WiFi hotspots to 20,000.

In terms of accessibility for all, many countries have adopted the web content accessibility guidelines (WCAG) set up by Web Accessibility Initiative to ensure that their websites are accessible by everyone, including the disabled. In Hong Kong, all the government websites are required to comply.

Under the Hong Kong’s Digital 21 Strategy, government is committed to promoting the use of ICTs among underprivileged groups. A variety of mobile apps are available, such as the Evergreen Activity Finder, Barrier-free Travel Guide and SESAMI.

The Lands Department has started a pilot project for a digital inclusion mobile map app, VoiceMapHK, for use by the visually impaired, offering My Location, Search Nearby, and Pathfindingfunctions. As well as voice-over capabilities, all searched results will be supplemented with distance and orientation information, making the visually impaired familiar with their surrounding area so encouraging them to broaden their social horizons.

There is still much work to be done to foster the smart society, which requires collaboration between the government, public and private sectors, and citizens. Most importantly, the Hong Kong Government should take the lead in understanding how digital and social inclusion issues are interconnected, with services designed to provide what is needed.

Geospatial information underpins our daily life, and geo-informatics technologies play an important role in supporting the establishment of smart cities and hence forging the smart society. With the vision to bridge the digital gap and achieve social cohesion, geomatics professionals should make every effort to combat complex digital exclusion issues in an innovative and interactive approach. Let us work hand in hand to build a spatially-enabled smart society for all. C

Related competencies include GIS, Propety records/information systems, Spatial data capture and presentation (advanced mapping)

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Compton Beauchamp Estates Ltd v Spence [2013] EWHC 1101 (Ch)Subject: Rent reviews − appealing arbitrator’s decision.Summary: Arbitrator’s failure to give adequate reasons

for his decision did not give rise to substantial injustice to the landlord.Decision: Following a statutory rent arbitration, the claimant landlord challenged the award under section 68 of the Arbitration Act 1996. For this argument to succeed, the claimant must show that a serious irregularity had/will cause substantial injustice. The claimant relied principally on the inadequacy of the arbitrator's reasons.

The court held that, although the standard of reasoning was poor,

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On the caseAllis Beasley outlines some recent court decisions that established important principles of law

In the following 11 cases, the court has made particular effort to provide guidance covering a broad range of issues and topics. It is also worth noting that although there is no current case law on the Deregulation Act 2015, it represents a real change to the way many agricultural disputes can be resolved, making third party determination an alternative to arbitration.

Image © Getty Images

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n

the arbitrator had done just about enough to explain how he reached his conclusions. In respect of the reliability of a certain witness, the reasons for preferring the other party’s expert were inadequate, but this witness was not central, and his evidence did not change the decision of the arbitrator. The application was, therefore, dismissed.

The judgment shows that even inadequately reasoned awards may not always cause substantial injustice in the eyes of the court.

Savage v Mansfield DC [2015] EWCA Civ 4Subject: Natural habitats.Summary: Although the area subject to outline

planning permission was potentially a Special Protection Area (SPA), this had not been formally proposed and thus there was no obligation for the planning authority to consult Natural England. Outline permission was thus upheld.Decision: Outline planning permission was granted for development near a wood that was the habitat of nightjar and woodlark. However, despite the woodland possibly being in a potential SPA, the obligation to consult Natural England extended only to the potential impact of the development on the Site of Special Scientific Interest (SSSI). There had been no duty to consult under the Conservation of Habitats and Species

Regulations 2010 or the supplemental National Planning Policy Framework because a site only became a proposed SPA when the government initiated consultation, which had not occurred in this case.

Natural England had power to give advice but this was no more than a material consideration for the decision maker to assess its weight.

Norman and another v Sparling [2014] EWCA Civ 1152Subject: Evidence that can be used to determine a boundary dispute.

Summary: The conduct of one of the original parties could be relied on as extrinsic evidence of the parties’ intentions as to the physical position of the boundary.Decision: A small section of Hebron Farm, known as Arnwood, was gifted by deed in 1988 to a family member. Both properties then changed hands and Arnwood was sold on, reference to the description contained in the 1988 deed. But the plan was of a scale so small that it was impossible to tell exactly where the disputed boundary fell.

The County Court held, and the Court of Appeal agreed, that where a boundary between retained land, and a plot sold off as a transfer of part, was not clearly delineated by the conveyance, the subsequent conduct of one of the original parties can be relied on as extrinsic evidence of the parties’ intentions as to the physical position of the boundary.

Gilks v Hodgson [2015] EWCA Civ 5Subject: Rights of way.Summary: The application of the presumption that a conveyance of land bounded by a road will include

half the road depended on the nature of the land to which the presumption was sought to apply.Decision: The appellant landowners appealed against decisions that the respondent neighbouring landowners had acquired a prescriptive easement (due to 20 years’ use) over land owned by the appellant and that the respondents owned to the centre of the lane, as opposed to the ditch, by presumption.

The court upheld the lower court's finding that an easement by prescription had risen. However, the presumption could not apply because the boundary was in fact in the middle of the ditch, not the lane. This is because the ditch did not completely follow the line of the lane and was therefore not part of it, so the judge had been wrong to apply the presumption.

Northumbrian Water Ltd v Sir Robert McAlpine Ltd [2014] EWCA Civ 685Subject: Nuisance.

Summary: The issue of foreseeability of harm and its nature must be considered in nuisance cases. There was no general rule that where an escape of some material from the defendant's land had caused physical harm to the claimant's land, the defendant was automatically liable in damages.Decision: The appellant sewerage undertaker appealed against a decision dismissing its negligence and nuisance claims against the respondent construction company for concrete escaping into a disused private drain, which was not shown on current plans, and causing a blockage.

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n The court dismissed the appeal because the construction company had carried out reasonable investigations about the land and sewerage system and there had been no reason to think that concrete might migrate beyond the borders of the site, much less into a sewer under the adjoining road.

Secondly, there was no general rule imposing strict liability in respect of nuisance causing physical damage to property. The sewerage undertaker’s claim in nuisance failed because the escape of concrete from land occupied by the construction company and the consequent damage to its sewer were unforeseeable.

Coope v Ward [2015] EWCA Civ 30Subject: Duty of care owed by landowners.Summary: A duty of care was owed between

neighbours as to the consequences of a collapse of an adjoining wall between their properties, but this did not necessarily mean liability for any damage caused.Decision: After heavy snow, a dividing garden wall collapsed and the spoil fell on adjoining properties. The wall had been supporting 3m of earth that had been built up by the previous owner.

It was held that despite a measured duty of care being owed between the neighbours after the collapse of the wall, it was not fair, just and reasonable to impose on one landowner a liability to contribute to the unspecified cost of a replacement wall. This is due to the fact that no breach had been established or continued and it is was unreasonable to require a sum to be paid on an unquantified financial solution.

Seward v Seward [2014] Chancery Division 20/06Subject: Reliance on a promise to be given land in exchange.

Summary: A son was allowed to rely on the doctrine of promissory estoppel and claim the entire beneficial interest in his parents’ property, when he transferred property to his brother in reliance of his parents promising him their farm.Decision: The claimant’s parents promised him that if he agreed to transfer property to his brother, they would leave him the farm after his father’s death. However, only part of the farm was transferred to the claimant during the life of his father and the parents later sold the farm and banked the proceeds in their joint names.

The court held that the minimum equity required was to award the claimant the entire beneficial ownership of the parents’ new property subject to their right to live there.(See also Davies v Davies [2015] EWCA 1384 (Ch) where the court allowed a claim relating to the beneficial ownership of a farm.)

Freemont (Denbigh) Ltd v Knight Frank LLP [2014] EWHC 3347 (Ch)Subject: Valuers negligence.Summary: The valuer was not negligent where his report was relied on for a purpose outside the

scope of instruction.Decision: The defendant (valuer) had been instructed to value the land for secured lending purposes but also, in the claimant’s view, to assess the value of the land for the purpose of a possible sale.

The claimant asserted that they suffered loss at the hands of the respondent, because the land was now known to be worthless and had there not been a negligent over-valuation, the claimant would have accepted one of the offers they had received.

The court found that there was no basis on which to find either an express or implied term to the effect that the purpose of the report was to enable the landowner to rely on it when considering the value of the land for investment purposes. However, this did not preclude the claimant from relying on the report for the purposes of obtaining finance, but they were not entitled to bring a claim against the defendant in respect of any loss suffered in consequence of their reliance on that report for other purposes.

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Allis Beasley is a Partner at Brachers LLPallisbeasley@brachers.co.uk

Denton v White and other appeals (Denton v TH White Ltd and another, Decadent Vapours Ltd v Bevan and others and Utilise TDS Ltd v Davies

and others [2014] EWCA Civ 906)Subject: Relief from sanctions and compliance with court orders in litigation.Summary: The court has made it clear that it will be far less tolerant of any failure to observe its orders in terms of the steps to be undertaken by the parties in the proceedings and the timescale for doing so. In this case, the court gave guidance as to when it will be prepared to grant a party relief from sanctions it had imposed on a party due to its default. Decision: The Court of Appeal issued new guidance in the form of a three-stage test to be applied in all future applications for relief from sanctions under Civil Procedure Rules Part 3.9. This test replaces the Mitchell guidelines and requires the court to:Stage 1: Identify and assess the seriousness of the non-compliance. Is the breach ‘serious or significant’?Stage 2: If it is, why did the default occur?Stage 3: Consider all of the circumstances of the case to deal with the application ‘justly‘, including the need for litigation to be conducted efficiently and at proportionate cost and the need to enforce compliance with rules, directions and court orders.

Swift 1st Ltd v Chief Land Registrar [2015] EWCA Civ 330Subject: Fraudulent transfer of property.Summary: A claim succeeded by the registered

proprietor of a charge against the Chief Land Registrar under the Land Registration Act 2002 Schedule 8 for an indemnity for loss caused by cancellation of the charge. This is despite the charge having been a forged disposition.Decision: In 2006, the claimant mortgage company received a mortgage application allegedly signed by the registered proprietor of the property. After the monies were released, it became apparent that the charge had been fruadulantly obtained. The claimant agreed to its entering, being cancelled on the register, but then claimed an indemnity from the Land Registry.

The court rejected the argument that the correction of the register did not affect the claimant’s title. It was held that the fact that the registered proprietor has an overriding interest, being in occupation, to have the forged disposition set aside, could not be set up to defeat a claim for indemnity.

Gold Harp Properties Ltd v MacLeod and others [2014] EWCA Civ 1084Subject: Rectification of the Land Registry Register.Summary: The court has power to rectify the

register at the Land Registry, including the power to change the priority of competing interests.Decision: The respondent had title to a residential property, but did not occupy the top floor. A property developer later acquired the lower floors and wanted to develop the top floor without paying the respondent. In February 2009, the developer’s son acquired the freehold of the house. The developer instructed a bailiff to re-enter the top floor due to missed rent payments by the respondent. Without knowing about the bailiff, the respondent sent a cheque for the ground rent but this was not cashed. The developer applied to close down the title numbers and grant a long lease to a company owned by an associate. That lease was further assigned to the appellant.

The Court of Appeal held that the respondent’s title numbers should take priority. The power to rectify the register was not limited to simply restoring an interest, but extended to changing what would otherwise be its priority. The effect of the judge's order was to enable the respondent to immediately exercise his rights as leaseholder to the exclusion of the claimant. C

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AG R I C U LT U R E

Jeremy Moody reviews a wave of changes to UK agriculture tenancy law

Changes to old tenancies

for the end of tenancy compensation for short term improvements and tenant right matters with effect from 1 October 2015

b introduce new model clauses governing default liabilities for the maintenance, repair, replacement and insurance of fixed equipment on holdings under the 1986 Act, again with effect from 1 October 2015

b allow the option for parties to use third party determination rather than arbitration for many differences and disputes with effect from 27 May 2015.

The Central Association of Agricultural Valuers (CAAV) is publishing detailed reviews and guidance to support valuers and others.

It remains to be seen whether the new government will look at wider proposals on succession and other issues

In the first significant measures since 2006, the UK Parliament has made

a number of long proposed changes mainly affecting English tenancies under the Agricultural Holdings Act 1986.

Meanwhile, the Scottish government is reviewing major changes to its tenancy legislation.

England The new legislation implements the recommendations of the 2011 Farming Regulation Task Force report and reflects the work that the Tenancy Reform Industry Group (TRIG) has undertaken since 2010.

The changes: b repeal the prescriptive

and outdated regulations

from TRIG, the 2013 Future of Farming review, or the Tenant Farmers Association campaign to encourage longer lettings.

After reporting a revival of the let sector after the 1995 reforms, the CAAV’s annual Agricultural Land Occupation Surveys have shown it be to static for over a decade, thought to be linked to the area-based Common Agricultural Policy subsidies.

End of tenancy compensation The 1986 Act lists those items for which the tenant can claim the end of the tenancy (possibly to be extended by the new Parliament).

In principle, the claim is for the value to an incoming tenant. Since 1948, more detailed provisions have been made in the Agriculture (Calculation of Value for Compensation) Regulations,

fixing values, write down periods and other rules, but these have become seriously outdated.

These regulations have been revoked without replacement for England from 1 October 2015, leaving the matter to valuers reviewing the actual circumstances.With higher fertiliser prices and greater knowledge of issues such as soil nitrogen and sulphur, there can be significant values at stake, for which valuers will need to be prepared.

The analysis in the CAAV'S guidance on this may also be relevant to the practical assessment of claims for routine improvements on the expiry of farm business tenancies.

This may also put a sharper and commercial focus on the issues of soil status, which are attracting wider attention. As well as its review, the

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CAAV is expecting to develop a parallel to its Costings of Agricultural Operations, offering regular current standard figures.

Model clauses for repairsSince 1948, default rules have been used to allocate repairing and other liabilities between landlord and tenant. These were last fully revised in 1973 and do not mention such items as slurry stores, portal frames or central heating. These model clauses have now been completely overhauled and will apply in England from 1 October as the Agriculture (Model Clauses for Fixed Equipment) (England) Regulations 2015.

Major changes include: b uprating the tenant’s annual

liability for slipped and cracked

tiles and slates to £500 b removal of the ceiling on

the tenant’s ability to recover the costs of replacements that are the landlord’s liability

b clarifying the landlord’s liability for the repair, replacement and checking of electrical systems (save for fittings)

b making the tenant liable for electrical fittings

b a new power for the tenant to act on damaged underground water pipes.

The model clauses apply “except in so far as they would impose on one of the parties to an agreement in writing a liability which under the agreement is imposed on the other”. Thus, the effect depends on the liabilities already imposed by the tenancy agreement. Common situations are:

b the agreement is unwritten: the new model clauses might apply in full.

b the agreement says the old model clauses may be amended or replaced: the new model clauses might apply in full.

b the agreement applies the old model clauses without provision for change: existing liabilities will be governed by the old clauses but those issues not covered will be governed by the new model clauses.

b the agreement makes its own provisions: these will apply unaltered but those issues not covered will be governed by the new model clauses.

b the agreement provides for the tenant to undertake all repairs and insurance: the new model clauses are unlikely to have any effect.

The 1986 Act allows two responses:

b section 8 enables a review of the terms of the agreement where they differ from the model clauses, which can result in them being varied and the rent adjusted.

b under section 9, if the new model clauses (or a section 8 decision) moves a liability between the parties,

the affected party has one month (that is October 2015) to refer issues to arbitration – the landlord over compensation and the tenant over outstanding claims. Although not taking effect until 1 October, these provisions already seem relevant to a rent review.

Third party determinationAmong the many issues covered by the Deregulation Act 2015, section 13 and schedule 4 allow the parties to a 1986 Act tenancy to opt jointly for final and binding third party determination as an alternative to arbitration except for notices to quit.

A new section 84A sets out the basic rules for the parties to agree to appoint a third party once an issue has arisen. This option is mutually exclusive with arbitration, so that:

b if an arbitrator is appointed then a third party cannot be, but

b if a third party is appointed then an arbitrator cannot be.

This is to be available for rent reviews, disputes under the new model clauses, end of tenancy compensation and a range of other disputes. n

With higher fertiliser prices and greater knowledge of issues such as soil nitrogen and sulphur, there can be significant values at stake, valuers will need to be prepared

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WalesAs an indication of the scale of devolution to Wales, the issues are all now the responsibility of the Welsh Assembly. It has:

b accepted the Deregulation Act’s amendments allowing third party determination of disputes and differences under the 1986 Act

b yet to change the old model clauses or the tenant right rules, but is thought likely to do so.

ScotlandIn Scotland, the tenanted agricultural sector is in accelerating decline, only accounting for 23% of the land area (almost halved since 1982), and is now one of the smallest tenanted sectors in Europe.

The Scottish Government Agricultural Holdings Legislation Review Group published its final recommendations to ministers in January (www.gov.scot/Resource/0046/00468852.pdf). The government intends to bring forward legislation as soon as it can. It appears that at least some headline measures will be included in an imminent larger Land Reform Bill.

General recommendations are a ‘strong’ tenant farming commissioner with extensive powers to promote formal codes of practice, with potential penalties for breach, covering the use, roles and behaviour of professional intermediaries. Self-regulatory initiatives are supported.

There is a policy focus on

Jeremy Moody is Secretary and Adviser at the Central Association of Agricultural Valuers jeremy@caav.org.uk

Related competencies include Landlord and tenant

new entrants, encouraging starter units and support, with discussion on the capping of payments to larger established businesses amid concerns that expansion for economies of scale denies new entrants effective access to land.

Despite recent cases, no advantage is taken of the modern Arbitration (Scotland) Act 2010 or other alternative dispute resolution to change Scotland’s cumbersome procedures.

Other proposals are that notice of termination of all tenancies (other than seasonal ones) should be given between two and three years prior to expiry, rolling forward from year to year on tacit relocation applying the same notice rule.

1991 Act tenancies Sweeping changes to Agricultural Holdings (Scotland) Act 1991 are proposed, including budget-based rent reviews, assignable tenancies and a limited ability to convert to 35-year fixed term tenancies.Rents are to be controlled “at least for the time being, to properly reflect the agricultural potential of the holding and ensure sharing of its capacity to generate a financial surplus”. The object is that there is to be no “reference to open market comparisons, scarcity and marriage value, and to ensure full transparency and objectivity relevant to the purpose of the lease”.

In summary, the report

looks to use a budget based on the holding and landlord’s fixed equipment, using rolling prices, and assumes it will always show a pre-rent surplus, of which half would be allocated to rent. That is then to be adjusted:

b upwards for excess residential accommodation after allowing for a standard labour requirement, assuming that the accommodation is let on the open market

b for the differing maintenance obligations for residential and agricultural tenancies with further provisions for diversification.Increases of more than 30% are to be phased. Disputes, some perhaps driven by the focus on the tenant’s farming system, competence and output, would still go to the Land Court (although the parties might agree to have the rent set by an expert appointed by the court).

Improvements could cover anything that the Land Court considers relevant. Three years would be allowed for tenants to notify landlords of improvements to qualify for waygo compensation, subject to certain grounds of objection.

Lifetime assignation, bequest or transfer by executors for both secure 1991 tenancies and limited duration tenancies (LDT), would be allowed to parents and descendants (with spouses). The tenant would be allowed to use their tenancy as security for lending.

Secure tenancies could be converted into fixed term ones for a minimum term of 35 years under the new rent review provisions, which can then be assigned for value to

an incoming tenant.An absolute right to buy

is ruled out, but all 1991 Act tenants would have a (possibly wider) automatic pre-emptive right to buy their holdings if on the market. Where a landlord does not fulfil their obligations, the tenant could apply to the Land Court for an order to force the sale of holding, triggering the right to buy.

New lettings A ‘modern LDT' is to balance the need for flexibility and fear of an imbalanced market with:

b seasonal grazing or cropping lettings with a soil survey

b a minimum assignable 10-year term.

Short LDTs would not be allowed. While it suggests freedom to agree the type, duration (with two years’ notice to terminate), purpose of the holding and lease, only leases for more than 25 years could be fully repairing.

The budget-based approach would be the default for rent review and mandatory for fully repairing leases.

This package does not look to herald a revival of the tenanted sector in Scotland but rather a different and no less problematic regime for managing the decline of secure tenancies. For those who see the importance of the let sector as a key part of the future of a commercial agriculture, a moment may have been missed. C

More information>

www.caav.org.uk

In Scotland, the tenanted agricultural sector is in accelerating decline, only accounting for 23% of the land area

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