Information and Advisory Note Number 105 Back to menu
If you plan to enter into a Management Agreement with SNH you are advised to discuss and pass this note to your professional adviser.
1.1 SNH may enter management agreements under Section 15 of the Countryside Act
1968, Section 16 of the National Parks and Access to the Countryside Act 1949,
and Section 49A of the Countryside (Scotland) Act 1967.
1.2 Section 50(2) of the Wildlife and Countryside Act 1981 (as amended) provides
that the payments under Section 15 and Section 16 agreements following a Notice
of Intent under that Act shall be determined in accordance with guidance given
by Ministers. This is contained in DoE Circular 4/83 "Wildlife and the
Countryside Act 1981 - Financial Guidelines for Management Agreements". These
Guidelines provide for the reimbursement by SNH of the reasonable costs incurred
by owners or occupiers in obtaining assistance and professional advice when
negotiating management agreements.
1.3 There is no statutory requirement for management agreement payments that do
not follow a Notice of Intent to follow the guidance given by Ministers.
However, SNH has adopted the practice of following that guidance in so far as it
is applicable in particular circumstances.
1.4 Please note that if you employ a professional adviser this establishes a
contractual relationship between you and your adviser rather than one between
your adviser and SNH.
1.5 SNH will only reimburse reasonably incurred professional fees. If there is
any difference between SNH's assessment of reasonableness and the fee note the
difference will not be recoverable from SNH and you will be liable to pay the
difference. It is therefore in your interests to ensure that when employing an
adviser their fees will be reasonable in relation to the management agreement
and the services required. If you have any doubts over this you should seek
SNH's advice and obtain quotations.
1.6 Once you have confirmed the appointment of an adviser you should inform SNH
immediately and provide details of the arrangements, including those about fees,
you have entered into. The cost of employing advisers without notifying SNH in
this way may not be reimbursed. SNH will respond and inform you of any ceiling
above which fees will not be reimbursed without further consultation and written
agreement.
2.1 SNH will only reimburse professional costs incurred in the negotiation of a
management agreement. For the avoidance of doubt costs in relation to the
following expenditure will not be reimbursed:
i) discussions surrounding the Notification of an SSSI;
ii) the submission of a Notice of Intent under Section 28(5) of the Wildlife and
Countryside Act 1981 (as amended), including the preparation and submission of
proposals such as a business plan, environmental
assessment or other investigation; or any subsequent amendment;
iii) fees incurred before SNH has advised that it is prepared to negotiate a
management agreement;
iv) negotiations following service of a Notice of Intent under Section 28(5),
over the terms of a written consent from SNH, or where SNH has not intimated
that it would like to conclude a management agreement.
3.1 The cost of employing a professional adviser to negotiate payments under a
management agreement will be reimbursed on a quantum meruit basis. This is
consistent with the provisions of paragraph 3.26 of Ryde's Scale (1996),
published by the Valuation Office Agency. SNH will assess quantum meruit, as
follows.
i) That amount which represents the level required to provide adequate
professional representation reflecting the amount of work and the level of
expertise commensurate with the complexity and size of the claim. Accurate time
records should be maintained to assist the assessment of fees.
a) Where a lump sum payment is made under a management agreement, the fee will
be compared with the ad valorem fee generated as if Table E of Ryde's Scale was
applied. SNH will not normally reimburse a fee higher than this and may, where
appropriate to the case, reimburse a lesser sum.
b) Where payments are made annually, the agreed annual payment (ignoring any
phasing) will be converted in order to apply Table E, by multiplying by a factor
of 5.
ii) In exceptional circumstances SNH may, at its sole discretion, reimburse a
higher level of fee than indicated at 3.1 (i) above, subject to being satisfied
that the necessary time spent by an adviser, and the circumstances of the case,
fully justify it. It is unlikely to be possible for SNH to make this judgement
until towards completion of a case. However, SNH will only consider such
requests if it
has been given prior notice of the situation at the earliest practical
opportunity that the normal basis of assessment is likely to be inadequate.
Retrospective requests for an alternative basis of assessment will not be
accepted.
iii) The Financial Guidelines for
Management Agreements do not include explicit provision for the reimbursement of
professional fees on the review of an annual payment. This is discretionary.
Where SNH agrees, reimbursement will be on the basis set out above. It should be
borne in mind, however, that in many cases a payment review will involve
relatively little work, often just the simple arithmetic update of a number of
variable costs. In these circumstances SNH require the fee to reflect this.
iv) Where an adviser negotiates the terms of a management agreement, other than
compensation, fees incurred in undertaking this work, providing it does not
duplicate the work done by others, will normally be settled on a quantum meruit
basis.
v) In all cases the hourly rate to be charged should be agreed in advance with
SNH.
vi) If an adviser changes during the course of negotiations, the time spent
duplicating earlier work by, for example, briefing themselves on the case, will
only be reimbursed by SNH in exceptional circumstances.
vii) SNH will not reimburse the costs of advisers incurred in agreeing the basis
on which their fees will be calculated or reimbursed.
3.2 SNH will assess the reasonableness of Solicitors fees on the basis of its
own and its Solicitor's accumulated experience in relation to the negotiation of
management agreements. If SNH considers any fees claimed excessive, and an
amended fee note cannot be agreed, the matter may be referred via SNH's
Solicitor to a Law Accountant. If the Law Accountant's assessment of the fee is
not agreed then the matter may be referred to the Auditor of the Court of
Session.
3.3 If you propose to employ additional or other professional advisers and you
also intend to claim for their fees as well you should consult SNH beforehand
and obtain SNH's
prior consent on their terms of engagement and the basis for calculating their
fees.
3.4 In addition to reimbursing an adviser's fees SNH is prepared to also
consider including their travel expenses and other disbursements necessarily and
reasonably incurred. However where the same adviser is carrying out other work
on your behalf only those expenses relevant to the fees SNH is reimbursing will
be eligible. Interest is not paid on professional fees.
4.1 Paragraph 31 of the Financial Guidelines for Management Agreements provides
that if SNH offers to negotiate a management agreement and subsequently
withdraws from this it will defray your reasonable costs incurred up until that
time. The assessment of the reasonableness of costs in these circumstances will
take account of guidance given at 3 above as far as possible.
4.2 If you withdraw from negotiations SNH will not reimburse your costs except
in exceptional circumstances.
5.1 Paragraph 29 of the Financial Guidelines for Management Agreements provides that SNH will only pay VAT on professional fees where the owner or occupier is not registered for VAT purposes. If you are registered and able to reclaim VAT, fees will be reimbursed net of VAT with the tax being reclaimed by you in the normal way.
6.1 Land Agents' fees will normally be paid following completion of Missives.
6.2 Solicitors' fees will normally be paid following the execution and delivery
of the management agreement.
6.3 Advisers fee notes should be made out to and sent to their clients in
duplicate; with one copy for your retention and the other for forward
transmission to SNH supported by adequate time records. You will then be
reimbursed upon SNH's approval of the details submitted.
6.4 In exceptional circumstances SNH may be prepared to consider other
arrangements
but all payments will always be made directly to you.
7.1 Further guidance may be obtained from SNH Land Agents in Area Offices or
from the address below:
Operational Support Unit Advisory Services
Scottish Natural Heritage
2 Anderson
Place
EDINBURGH EH6 5NP
Tel: 0131-447 4784
Fax: 0131-446 2405
Back to menu