The Single Payment Scheme definition of permanent pasture has come under challenge in the EU Court of Justice. The SPS defines permanent pasture as “land used to grow grasses or other herbaceous forage naturally (self-seeded) or through cultivation (sown) and that is not included in the crop rotation of the holding for five years or longer”. Read more about Roythorne's Agricultural Law team.
A German farmer who had reseeded his grassland with a different mix brought a case in which he argued that the reseeding operation broke the continuous five-year period and that his land should not be considered a permanent pasture. He wanted to let the land, and arable land attracted a higher rent.
Ahead of the Court making its final decision the advisory opinion of Eleanor Sharpston, the Advocate-General to the Court has been published. Her opinion is that where land is used for growing grass or herbaceous forage, the five-year permanent pasture qualifying period is broken if the land has been ploughed and reseeded with a different grass or herbaceous forage crop. Operations that fall short of removal of the previous crop (e.g. harrowing and over-seeding) will not break the qualifying period.
Basic Payment Scheme and Greening
The distinction between arable land and permanent grassland is crucial. Under the new 'greening' rules Member States have an obligation to maintain levels of permanent pasture, and the extent of a claimant's ecological focus area is triggered by how much 'arable' land he has (with some exemptions in place for predominantly grassland farms).
We’ve all adopted the “if the field has been in grass for five years or longer it is permanent grass, whether or not it has been reseeded” line. Until now that has been fine and, from an administrative point of view, is reasonably straightforward. If the European Court does adopt the Advocate-General’s opinion, things could change.
CAP regulations have always involved a certain amount of legal fiction. Definitions might not stand up to logical analysis but provide workable ways of implementing a support scheme without a complete bureaucratic meltdown. A change to the permanent pasture definition that reflects the reality of ploughing and re-seeding may make sense to many but will add to the uncertainty the new scheme already brings with it.
The Advocate-General’s opinion isn’t the last word – the Court of Justice has to make its own ruling in due course, but in the vast majority of cases it adopts the Advocate-General’s advice. This isn’t great timing for a court decision that upsets the current thinking on permanent pasture even if it does not change things on the ground for many UK farmers.
Permanent grassland definitions
Current Defra/RPA guidance
“If you enter land as grass or herbaceous forage on six consecutive SPS applications the land is classified as permanent pasture at the sixth application…if you have re-sown land with grass or other herbaceous forage during the five years, it is still permanent pasture.”
Basic Payment Scheme definition
“Land used to grow grasses or other herbaceous forage naturally (self-seed) or through cultivation (sown) and that has not been included in the crop rotation for five years or more…”
“Where the [grassland] area has been ploughed up, removing the previous crop, and reseeded with a different type of herbaceous forage, then there is crop rotation precluding classification as permanent pasture. Where, however, the previous crop is not removed by ploughing up the land but is partly modified by overseeding, then there is no crop rotation and the area is to be classified as permanent pasture.”