Rural Estates Newsletter Spring 2021 - Flipbook - Page 13
Basic Payment Scheme (BPS) deductions
The financial implications don’t stop there – in addition to any EA investigation
and subsequent prosecution, the Rural Payments Agency has jurisdiction to make
deductions from the BPS, often without notice. Confusingly, different criteria apply
when assessing the extent of any BPS penalty with ‘negligent’ non-compliance
resulting in a deduction of 1 per cent – 5 per cent whereas ‘intentional’ offences can
lead to the BPS being withheld in full (although 20 per cent is normal). These potentially
very substantial deductions are often applied without the offender being given an
opportunity to argue its case and, whilst decisions can be ‘queried’, the process can
take several months.
Dealing with a breach
Licence breaches are difficult to police and may often go undetected. However, if an EA
inspector turns up unannounced on a sunny April day, weeks after your abstraction period
has expired, to find a pump chugging away on the banks of the dyke running through your
land – what do you do?
1. Stop: this may seem obvious, but any sanctions will depend on the scale of harm done
and the sooner the offending stops, the lower the potential environmental impact.
2. Lawyer up: inform your solicitor as soon as possible. No one likes legal fees but how
you respond in the immediate aftermath of a breach could dramatically affect the
scale of sanctions and you want to be sure you are advised appropriately.
3. Investigate: take early steps to establish the circumstances of the breach and
consider measures to prevent recurrence, such as compliance training and
disciplinary action for staff. Such actions will assist when it comes to mitigation.
4. Build your case: the EA will provide a report following their inspection and allow you
the chance to respond. Because of the sliding scale nature of the sanctions, compiling
as much mitigating evidence as possible will be crucial. Key factors might include:
• The status of the individual responsible: were they a ‘directing mind’ of the company
or were they acting of their own volition?
• Meteorological factors: could it be shown that recent rainfall had increased the flow
of the water source and therefore lessened the impact of the abstraction?
• Hydrological data: could it be shown that the quantities abstracted were minimal
compared to the flow/capacity of the water source?
5. Settle: The EA may consider accepting an ‘enforcement undertaking’ in lieu of
prosecution. These will ordinarily involve a donation to an environmental cause and
the confirmation of steps taken to prevent recurrence. Proposed donations will likely
need to be roughly equivalent to the potential criminal sanction and could therefore
be substantial, yet preferable to a criminal record! It is important to take even the most
minor, inadvertent breaches as seriously as the EA will.
Rural Estates Newsletter
Spring 2021
13
