T & S King (A Partnership), R (On the Application Of) v Secretary of State for Environment, Food And Rural Affairs

Under Article 30 of the Council Regulation (EC) No 73/2009, artificial arrangements fall outside a support scheme only where they are made to obtain an advantage contrary to the scheme’s objectives. The question is whether the arrangements are contrary to an objective, not whether they positively further it. Temporary control of eligible agricultural land on the prescribed snapshot date can satisfy the requirement that the land be at the farmer’s disposal. Maintaining land in good agricultural and environmental condition is an objective of the single payment scheme and forms part of agricultural activity. Contractual arrangements which secure that condition, and which involve genuine farmers temporarily lacking suitable land, are not contrary to the scheme merely because their enforcement mechanisms are weaker than direct farming arrangements.

The claimant farming partnership had sold its English farm and, while seeking a replacement farm, entered into ten-day farm business tenancies and related contract farming agreements. The arrangements enabled it to activate English single payment entitlements using land held on the annual snapshot date. The Rural Payments Agency treated the arrangements as artificial and contrary to the objectives of the single payment scheme under Article 30 of the Council Regulation (EC) No 73/2009. The Independent Agricultural Appeals Panel recommended rejecting the appeal, and the Minister upheld that position. The central issue was whether the arrangements, although artificial and capable of activating the entitlements, obtained an advantage contrary to the objectives of the scheme.

1. The claim was allowed. The arrangements were artificial, but the parties accepted that the land was legally at the claimant’s disposal on the snapshot date under Article 35. The arrangements therefore fell within the scheme on their face.
2. Article 30 required a further question: whether the artificial arrangements were made to obtain an advantage contrary to the objectives of the support scheme. The relevant issue was whether they were contrary to an objective, not whether they positively furthered it.
3. The claimant partnership remained engaged in full-time farming while seeking a new farm. This was materially different from a farmer who had ceased farming, or from non-farmers speculatively accumulating entitlements without a corresponding agricultural basis. The use-it-or-lose-it rule in Article 42 applied to those examples.
4. Maintaining land in good agricultural and environmental condition was an objective of the scheme and fell within the definition of agricultural activity under Article 2(c). The Wakelys were contractually bound to maintain the land throughout the year, and the claimant had an incentive to ensure compliance because Article 23 exposed it to reductions in payment if the land was not properly maintained.
5. The contractual enforcement arrangements were weaker than direct farming by the claimant, but that did not make them contrary to the scheme’s objectives. The Secretary of State’s argument that the entitlements should instead have been sold failed for the same reason. The decision that Article 30 applied was unlawful.

The claim for judicial review was allowed.