Common Land

Following a legal challenge, those farming common land may be able to claim higher support payments.  DEFRA has concluded that the methodology it used back in 2005 to allocate the eligible area of a common amongst Single Payment Scheme (SPS) claimants does not comply with European rules.  Under the BPS some farmers may be entitled to claim additional amounts, and also claim for backdated payments under the SPS for previous years.

Previously, the area each commoner was able to claim on was calculated according to the ratio of the rights which that farmer held compared to the total number of rights recorded in the register for each common.  This was whether or not all those rights were ever used to make a claim.  This meant that in some cases the full eligible area of the common was not used to support claims leading to ‘naked acres’.  From 2015 the methodology has changed so that commoners will be able to claim on a proportion of the total eligible area which is calculated according to the ratio of the rights held compared to the total number of rights used by farmers to support a claim in that year.  This will mean the total eligible area of the common will be available to those farmers who make a claim.

The change means that some farmers may be entitled to additional payments under the previous SPS and also entitlements which can be rolled forward to use under the current BPS.  To be entitled farmers will need to have:

• claimed SPS on common land in 2005 where the full area was not claimed on; and
• have claimed in each subsequent year to date.

Those who claimed in 2005 and had a consistent history of claiming but have since ceased claiming may be entitled to receive some historic payments.  All additional payments will be subject to a six year limitation.  Those that used common land to support Hill Farm Allowance claims or Uplands Transitional Payments may also be eligible for additional payments where it is found the eligible area for SPS should have been larger (although see below).  Farmers will need to make a ‘claim’ for additional entitlements and payments; the RPA will be writing to those that are affected with a claim form. 

In addition, the RPA has recently finished mapping common land for the first time.  Those that use common land should have received maps from the RPA.  In many cases the common will have actually decreased in size because it is the first time that ineligible features such as dense scrub, rocks etc have been accurately mapped.  As always claimants should check the maps are accurate (probably easier said than done!) as it will be these new areas that BPS claims are based on.  It will also be this new area that the RPA will use where a claimant seeks additional entitlements or payments from previous years.  Although, the RPA has said that it will not ‘normally’ seek to recover any overpayments where a claimant could not have reasonably known that they were making an over-claim.

More detailed guidance should be available on the GOV.UK website in due course.  But it does seem that using this new method the area each farmer will be able to claim on will depend on the number of claimants each year and therefore could in theory change from year to year, which in turn could make it difficult to make sure you have the correct number of entitlements each year.