The Less Favoured Area Support Scheme (Scotland) Regulations 2004
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The Scottish Ministers in exercise of the powers conferred by section 2(2) of the European Communities Act 1972[1] and of all powers enabling them in that behalf, hereby make the following Regulations: Citation, commencement and application 1. - (1) These Regulations may be cited as the Less Favoured Area Support Scheme (Scotland) Regulations 2004 and shall come into force on 18th March 2004. (2) These Regulations apply to holdings in respect of which the Scottish Ministers are the competent authority, in accordance with the Integrated Administration and Control System Regulations 1993[2]. Interpretation 2. - (1) In these Regulations, unless the context otherwise requires-
(b) as grazing land, meadow land, osier land, market gardens and nursery grounds; and (c) for woodlands, where that use is ancillary to the use of land for other agricultural purposes;
(b) approved by the Commission of the European Communities under either-
(ii) Article 7 of Council Regulation (EEC) No. 2078/1992 on agricultural production methods compatible with the requirements of the protection of the environment and the maintenance of the countryside[3];
(b) for those applicants maintaining a dairy herd in the islands of Shetland, the islands of Orkney, the islands of Islay, Jura, Arran, Bute, Great Cumbrae, Little Cumbrae and the Kintyre Peninsula south of Tarbert, any other islands in the Outer Hebrides and the Inner Hebrides, or part of the Cowal peninsula as defined in Schedule 9, a livestock unit for each 5730 litres of milk quota held, which the Scottish Ministers determine are to be taken into account
from time to time;
(b) maintaining a flock of sheep comprising eligible ewes as defined by Council Regulation 2529/2001; (c) maintaining a dairy herd in-
(ii) the islands of Orkney; (iii) the islands of Islay, Jura, Arran, Bute, Great Cumbrae, Little Cumbrae and the Kintyre Peninsula south of Tarbert; (iv) any other islands in the Outer Hebrides and the Inner Hebrides; or (v) part of the Cowal peninsula as defined in Schedule 9; (d) maintaining a breeding herd of farmed deer for meat
production;
(b) which is, in the opinion of the Scottish Ministers, inherently suitable for extensive livestock production but not for the production of crops in quantity materially greater than that necessary to feed such livestock as are capable of being maintained on such land, and whose agricultural production is, in the opinion of the Scottish Ministers, restricted in its range by, or any combination of, soil, relief, aspect or climate;
(b) 1.66 heifers 8 months and over; (c) 6.66 breeding ewes; (d) 6.66 breeding female goats; (e) 3.33 breeding female farmed deer 27 months and over; (f) 5 breeding female farmed deer over 6 months but less than 27 months; (g) 3.33 breeding female alpaca; (h) 5730 litres of milk quota; (i) 3.33 breeding female llamas;
(b) the verifiable standards set out in Part II of Schedule 2. (2) Unless the context otherwise requires,
any reference in these Regulations to a numbered regulation or
paragraph or to a Schedule is a reference to the regulation or
paragraph of the regulation or the Schedule so numbered in these
Regulations.
(ii) the 2003 Regulations; (iii) the 2002 Regulations; (iv) the 2001 Regulations; (v) the 1999 Regulations; or (vi) the 1996 Regulations; (b) that applicant applies usual good farming practices on the
eligible land of the applicant; (2) Paragraph (1)(a) does not apply to an
applicant who is in receipt of a retirement pension at the time when
that undertaking requires (or was required) to be
given.
(b) if that applicant is prevented from continuing to discharge that undertaking by reason of any material circumstances beyond the control of that person; or (c) if the applicant ceases farming and at least three hectares of the eligible land of the applicant continues to be used for carrying out an eligible agricultural activity. Payment of less favoured area
support
(b) where the applicant has not previously claimed any subsidy dependent upon an area aid application, as declared by the applicant in a form which the Scottish Ministers shall from time to time specify. (2) Eligible land includes land in respect
of which the applicant has a right of use pursuant to arrangements
such as short term lets, seasonal grazing and common
grazing.
(b) has been in continuous occupation of the holding for a period of not less than 183 calendar days in the Scheme Year concerned. Amount of less favoured area
support
(2) Where an applicant has eligible land in
more than one grazing category (as determined for the purposes of
regulation 9) then-
(ii) R is the rate of payment for each type of grazing category determined in accordance with regulation 12; and (b) the total amount of less favoured area support payable shall
be the sum of each of those calculations. Determination of Payable Area
(2) For the purpose of paragraph (1) the
hectare value shall be the entry in the third column of Schedule 4
corresponding to the grazing category in the second column of that
Schedule.
(b) at the start of the retention period where eligibility rests on livestock claimed under the Suckler Cow Premium Scheme; (c) during calendar year 2003 where eligibility rests on livestock declared separately in an application for less favoured area support; or (d) in the opinion of the Scottish Ministers where eligibility must be determined from a combination of livestock described in sub-paragraphs (a) to (c) above. (2) Where the stocking density calculated
in accordance with paragraph (4) and Parts I and II of Schedule 1
based on eligible agricultural activity undertaken in calendar year
2003 is less than the minimum stocking density, the eligible land for
the purposes of the calculation at regulation 9(1) shall be the number
of hectares calculated in accordance with the following
formula:-
(3) Where the stocking density calculated
in accordance with paragraph (4) and Parts I and II of Schedule 1
based on eligible agricultural activity undertaken in calendar year
2003 is greater than the maximum stocking density, the eligible land
for the purposes of the calculation at regulation 9(1) shall be the
number of hectares calculated in accordance with the following
formula:-
(4) For the purposes of paragraphs (1), (2)
and (3), the number of eligible livestock units shall be calculated
using-
(ii) the lesser of the number of livestock claimed and the number of livestock quota units held; (b) where eligibility rests solely on livestock claimed under the
Suckler Cow Premium Scheme, the greater of-
(ii) the lesser of the number of livestock claimed and the number of livestock quota units held; (c) where neither sub-paragraph (a) nor (b) applies, the number
of livestock units determined by a decision of the Scottish
Ministers using any, or a combination of any, of the
following:-
(ii) livestock described in sub-paragraph (b) above; (iii) livestock units calculated from numbers of deer, goats, alpacas or llamas held throughout the relevant calendar year; (iv) where the applicant has not claimed any subsidy under the Sheep Annual Premium Scheme, ewes, gimmers and hoggs declared separately as being held throughout the Scheme Year; (v) where the applicant has not claimed any subsidy under the Suckler Cow Premium Scheme, suckler cows declared separately as being held throughout the Scheme Year. (5) Where-
(b) where eligible land, for the purpose of the calculation in regulation 9(1), for that applicant has been reduced under paragraph (2) or (3), the Scottish Ministers shall apply that reduction in eligible land
proportionately to the total of the eligible land in each grazing
category for the purpose of the calculation in regulation
9(1).
(2) Where an applicant fails to achieve the
necessary cattle livestock units for the purposes of this regulation
as a result of not being able to re-stock following slaughter of
livestock under the Animal Health Act 1981 in consequence of the
service of a notice or an order being in place under the
Foot-and-Mouth Disease Order 1983, the Scottish Ministers may, by a
decision, determine the total number of cattle livestock units to be
used for the purposes of this regulation.
(b) ascertaining whether an offence under these Regulations has been or is being committed, and in doing so may be accompanied by a person assigned to assist
the authorised person, for those
purposes.
(b) inspect and count livestock on such land and require the applicant to arrange for the collection of animals, penning and securing; (c) require production of and examine any records in whatever form, and take copies of those records; (d) remove and retain any document or other record referred to in sub-paragraph (c) above which may be required for use as evidence in proceedings under these Regulations; and (e) inspect and verify that the applicant has complied with usual good farming practices. (4) An authorised person may require, where
any computer and any associated apparatus or material which is or has
been used in connection with any such records mentioned in paragraph
(3)(c), wherever situated, records which are kept by means of such
computer or associated apparatus or material to be produced in a
visible and legible form in which they may be taken
away.
(b) where the applicant, or an employee or agent of the applicant intentionally obstructs an authorised person in exercise of the powers under regulation 14, or fails without reasonable excuse to comply with a requirement or request made by an authorised person under regulation 14 or 15; (c) where, in the opinion of the Scottish Ministers, the applicant has failed to act in accordance with usual good farming practices on or in relation to eligible land; (d) where, in the opinion of the Scottish Ministers, the applicant has failed to comply with the environmental controls set out in Schedule 3 on or in relation to eligible land. Rate of interest
(b) invite the applicant and the Scottish Ministers to provide such further information relevant to the review as the person appointed considers appropriate; and (c) give the applicant and the Scottish Ministers an opportunity to give evidence or to make representations in person or through a representative. (5) The person appointed shall review the
said determination and shall make a decision confirming or refusing
that determination, and shall intimate that decision to the Scottish
Ministers and the applicant in
writing.
(ce) a decision by the Scottish Ministers under regulation 7(2), 9(5), 10(4), 10(6) or 11(2) of the Less Favoured Area Support Scheme (Scotland) Regulations 2004;". Revocation and savings
provisions
Water pollution 1. The Control of Pollution Act 1974[24]. 2. The Control of Pollution (Silage, Slurry and Agricultural Fuel Oil) (Scotland) Regulations 2001[25]. 3. The Groundwater Regulations 1998[26]. Air pollution 4. The Clean Air Act 1993[27]. 5. The Hill Farming Act 1946[28]. Fertilisers and pesticides 6. The Action Programme for Nitrate Vulnerable Zones (Scotland) Regulations 2003[29]. 7. Part III of the Food and Environment Protection Act 1985[30] and the Control of Pesticides Regulations 1986[31]. 8. The Plant Protection Products Regulations 1995[32]. Designated sites 9. The Ancient Monuments and Archaeological Areas Act 1979[33]. 10. The Wildlife and Countryside Act 1981[34]. 11. The Conservation (Natural Habitats etc.) Regulations 1994[35]. 12. The Ancient Monuments (Class Consents) (Scotland) Order 1996[36]. Forestry Management 13. The Forestry Act 1967[37]. 1. Any farmer who constructs a new silage or storage facility must give notification to the Scottish Environmental Protection Agency prior to starting to use it. The farmer must keep records showing that this notification has been given. 2. Where it is proposed to dispose of sheep dip on a holding, prior authorisation to do this must be obtained from the Scottish Environmental Protection Agency. The farmer must keep documents and records showing that this authorisation has been obtained. The farmer must keep records detailing the manner of disposal of the sheep dip. 3. Trimming of hedgerows must not be carried out between 1st March and 31st July. 4. Removal or destruction of any hedges, stone walls or other boundary features shall not be allowed except with the prior written agreement of the Scottish Ministers. 5. Any farmer who intends to undertake any operation which is likely to damage a Site of Special Scientific Interest designated pursuant to section 28 of the Wildlife and Countryside Act 1981 must obtain the prior approval of Scottish Natural Heritage to the carrying out of that operation. The farmer shall maintain records showing that this authorisation has been obtained. 6. Livestock shall be managed in such a way as to avoid overgrazing and undergrazing. Where the Scottish Ministers form the opinion that land was being overgrazed, a management regime including a maximum (and, where appropriate, a minimum) stocking rate to be observed on that site will be prescribed. Overgrazing is defined as grazing land with livestock in such numbers as to adversely affect the growth, quality or species composition of vegetation (other than vegetation normally grazed to destruction) on that land to a significant degree; and to ensure that livestock is managed in such a way as to prevent damage to sensitive habitats[38] that are important for biodiversity reasons. Undergrazing means not using land fully, or scrub or coarse becoming evident, where it is detrimental to the environmental interest of the land. 7. Unsuitable supplementary feeding methods shall be avoided. 1. To ensure the protection of rough grazings and other semi-natural areas, new drainage works, ploughing, clearing, levelling, re-seeding or cultivating must not be undertaken. Livestock must be managed to avoid poaching to a level which would destroy the natural vegetation in respect of such rough grazings and other semi-natural areas. 2. To ensure the protection of rough grazings and other semi-natural areas, pesticides, lime or fertiliser must not be applied to rough grazings and other semi-natural areas except-
(b) to control bracken with Asulam or other approved herbicides; or (c) in exceptional circumstances where no conservation damage will result, lime or fertiliser may be applied. 3. Muirburn may only be carried out
in accordance with guidance approved by the Scottish
Ministers.
Agency arrangements 1. The Scottish Ministers may, with the agreement of any competent authority (as defined for the purposes of the Integrated Administration and Control System Regulations 1993), arrange for any of their functions under these Regulations in relation to any claim to be exercised on their behalf by that competent authority. 2. The Scottish Ministers may also agree to exercise functions on behalf of another competent authority corresponding to those which are exercisable by the Scottish Ministers under these Regulations. 3. Any such arrangement shall be in writing and be signed by or on behalf of the Scottish Ministers and the competent authority and any such arrangement may be subject to such conditions (including conditions as to the costs and charge for costs) as may be agreed from time to time. Set off 4. Without prejudice to the amount of any sum payable by the Scottish Ministers to any other competent authority, the amount of any sum payable by the Scottish Ministers, whether as principal or agent, by way of a specified payment may be set off against the amount of any sum recoverable by the Scottish Ministers, whether as principal or agent. Calculation of payments in respect of cross border holdings 5. Where any holding in respect of which a claim has been made is a cross border holding, the Scottish Ministers may pay, on such occasions as they consider fit, in respect of the Scheme Year in question to an applicant less favoured area support for carrying out eligible agricultural activity on eligible land, providing the applicant has declared the eligible land in an area aid application which has been treated as a valid application by the competent authority concerned. 6. Whether the eligible agricultural activity undertaken on the eligible land is an integral part of the management of the whole holding or independently managed, Scottish Ministers shall only pay less favoured area support in respect of the eligible agricultural activity actually undertaken on eligible land defined as a less favoured area for the purposes of this instrument. 7. For cross-border holdings where the applicant has submitted a declaration of eligible land to another competent authority, the Scottish Ministers shall apply the standard rate of payment. 8. Applicants in respect of cross border holdings are required to supply such information as authorised persons may reasonably require to assess the eligible agricultural activity actually undertaken on eligible land defined as a less favoured area for the purposes of this instrument. 9. All conditions applying to applicants in respect of holdings lying wholly within the less favoured areas shall apply equally to applicants in respect of cross border holdings. The areas of land within Argyll and Bute District comprising those parts of the parishes of Dunoon and Kilmun and Inverchaolain bounded as follows:- Starting in the North on the shore of Loch Striven at point national grid reference NS/095708; then in an easterly direction along the MOD boundary to point national grid reference NS/097708; then in a northerly direction along the MOD boundary to point national grid reference NS/097710; then in a north easterly direction along the MOD boundary to point national grid reference NS/098710; then in a northerly direction along the MOD boundary to point national grid reference NS/098711; then in a north-north easterly direction along the MOD boundary to point national grid reference NS/098712; then in a north easterly direction to point national grid reference NS/102714; then in a south westerly direction to point national grid reference NS/107712; then in a easterly direction along the forestry fence to point national grid reference NS/111711; then in a southerly direction along the forestry fence to point national grid reference NS/110707; then in a south-easterly direction along the forestry fence to point national grid reference NS/111707; then in a south south-easterly direction along the forestry fence to point national grid reference NS/113703; then in a southerly direction along the forestry fence to point national grid reference NS/114699; then in a south-westerly direction along the forestry fence to point national grid reference NS/112699; then in a south south-westerly direction along the forestry fence to point national grid reference NS/111693 where the forestry fence meets the A815; then in a southerly direction along the A815 to point national grid reference NS/112689; then in a north-easterly direction along the forestry fence to point national grid reference NS/114690; then in an east south-easterly direction along the forestry fence to point national grid reference NS/117688; then in a southerly direction along the forestry fence to point national grid reference NS/116685; then in a westerly direction to point national grid reference NS/114685 where the fence meets a track; then in a southerly direction down the track to point national grid reference NS/114682 (21); then in a westerly direction down a burn to point national grid reference NS/112682 where the burn meets the A815; then in a southerly direction down the A815 to point national grid reference NS/111679; then in a westerly direction to point national grid reference NS/110679 at the high water mark; then in a westerly direction for approximately 1200 metres which then turns in a northerly direction all along the shore back to the starting point of national grid reference NS/095708. (This note is not part of the Regulations) These Regulations, which replace the Less Favoured Area Support Scheme (Scotland) Regulations 2003 ("the 2003 Scheme"), make provision for the purposes of implementation of Council Regulation (EC) No. 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund and Commission Regulation (EC) No. 445/2002 laying down detailed rules for the application of Council Regulation No. 1257/1999. They apply to holdings in respect of which the Scottish Ministers are the competent authority under the Integrated Administration and Control System Regulations 1993 (regulation 1(2)). Applications for less favoured area support ("LFAS") are to be made to the Scottish Ministers on a date which they shall determine each year. Failure to meet the deadline will result in reduction of the payment of support (regulation 3). Eligibility for payment of LFAS is dependent upon the applicant meeting the criteria set out in regulation 4. It can only be paid to an applicant who carries out an eligible agricultural activity (defined in regulation 2(1)) on eligible land (defined in regulation 6). No payment will be made where the amount of eligible land is less than 3 hectares (regulation 5). There is provision at regulation 7 to determine to whom payment should be made where a holding is transferred during a Scheme Year. LFAS is paid for eligible hectares on farms in Scottish less favoured areas at specified rates (regulations 8 and 12). The rate is fixed according to the grazing category (regulation 9 and Schedule 4) and the fragility of the parish in which the main farm of the applicant lies (regulation 12 and Schedule 7). The area of land on which LFAS is paid is normally the area of eligible land which the applicant has, adjusted in accordance with a formula set out in regulation 9(1). The manner in which the area of eligible land is adjusted will depend on the grazing category of that land (regulation 9(2)). The grazing category is allocated according to the historical stocking density of the applicant's land (regulation 9(3)). A separate stocking density is calculated annually, and for the 2004 Scheme, is based upon eligible land and eligible agricultural activity in 2003. Where the applicant has a stocking density which falls above the maximum stocking density or below the minimum stocking density, then the area of land on which LFAS is to be paid is instead calculated in accordance with formulae set out in regulation 10. The maximum and minimum stocking densities are laid out in regulation 2. There is provision at regulation 10(4) to allow Scottish Ministers to determine the total number of livestock units where an applicant has not been able to achieve the minimum stocking density because of slaughter in consequence of foot and mouth disease. Where more than 10% of the applicant's livestock units are made up of cattle, the area of land on which LFAS will be paid will be increased in accordance with the adjustment set out in regulation 11 and Schedule 5. Regulation 13 fixes a minimum payment of £350 Regulation 14 contains powers of enforcement. Regulation 16 provides for withholding or recovery of LFAS where there is a breach of the rules of the Scheme. Regulations 19 to 22 deal with offences and penalties. Regulations 23 to 25 deal with an applicant's right of appeal against decisions taken by the Scottish Ministers. Regulation 26 makes consequential amendments to the Agricultural Subsidies (Appeals) (Scotland) Regulations 2000. Notes: [1] 1972 c.68. Section 2(2) was amended by the Scotland Act 1998 (c.46), Schedule 8, paragraph 15(3). The function conferred upon the Minister of the Crown under section 2(2) of the European Communities Act 1972, insofar as within devolved competence, was transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998.back [2] S.I. 1993/1317, amended by S.I. 1994/1134, 1997/1148, 1999/1820 and 2000/2573.back [3] O.J. No. L 215, 30.7.92, p. 85, as amended by Commission Regulation (EC) No. 2772/95 (O.J. No. L 288, 1.12.95, p.35), and repealed by Council Regulation 1257/1999.back [4] O.J. No. L 327, 12.12.01, p.11, as corrected by Corrigendum to Commission Regulation (EC) 2419/22001 (O.J. No. L 7, 11.1.02, p.48) and amended by Commission Regulation (EC) No. 2550/2001 (O.J. No. L 341, 22.12.01, p.105).back [5] O.J. No. L 74, 15.3.02, p.1.back [6] Regulation 2A was inserted by S.I. 2000/2573.back [7] O.J. No. L 355, 5.12.92, p.1, amended by Council Regulation (EC) No. 165/1994 (O.J. No. L 24, 29.1.94, p.6), Council Regulation (EC) No. 3233/1994 (O.J. No. L 338, 28.12.94, p.13), Council Regulation (EC) No. 3235/1994 (O.J. No. L 338, 28.12.94, p.16), Council Regulation (EC) No. 3072/1995 (O.J. No. L 329, 30.12.95, p.18), Council Regulation (EC) No. 1577/1996 (O.J. No. L 206, 16.8.96, p.4), Council Regulation (EC) No. 2466/1996 (O.J. No. L 335, 24.12.96, p.1), Commission Regulation (EC) No. 613/1997 (O.J. No. L 94, 9.4.97, p.1), Council Regulation (EC) No 820/1997 (O.J. No. L 117, 7.5.97, p.1), Council Regulation (EC) No. 1036/1999 (O.J. No. L 127, 21.5.99, p.4), Council Regulation (EC) No. 1593/00 (O.J. No. L 182, 21.7.00, p.4), Council Regulation (EC) No. 495/2001 (O.J. No. L 072, 14.3.01, p.6) and Council Regulation (EC) No. 1782/2003 (O.J. No. L 270, 21.10.03, p.1). Council Regulation (EEC) No. 3508/92 was repealed by Article 153(1) of Council Regulation (EC) No. 1782/2003, but continues to apply to applications for direct payments in respect of the calendar years preceding 2005.back [8] O.J. No. L 160, 26.6.99, p.21, corrected by Corrigendum to Council Regulation (EC) No. 1254/1999 (O.J. No. L 263, 18.10.00, p.34) and amended by Council Regulation (EC) No. 1455/2001 (O.J. No. L 198, 21.7.01, p.58), Commission Regulation (EC) No. 1512/2001 (O.J. No. L 201, 26.7.01, p.1), Commission Regulation (EC) No. 2345/2001 (O.J. No. L 315, 1.12.01, p.29) and Council Regulation (EC) No. 1782/2003 (O.J. No. L 270, 21.10.03, p.1).back [9] O.J. No. L 160, 26.6.99, p.80.back [10] O.J. No. L 341, 22.12.01, p.3.back [11] O.J. No. L 82, 26.3.84, p.67, as amended by Commission decision 91/25/EEC altering the limits of the less-favoured areas in the United Kingdom within the meaning of Council Directive 75/268/EEC (O.J. No. L 16, 22.1.91, p.25).back [12] 1992 c.4; section 20(1)(f) was amended by the Tax Credits Act 2002 (c.21), Schedule 6; section 62 was amended by the Pensions Act 1995 (c.26), section 131 and Schedule 4, paragraph 7; and section 63 was amended by the Tax Credits Act 2002 (c.21), Schedule 6.back [13] S.I. 1996/1500, amended by S.I. 1997/33, 1998/206 and 1999/375, and revoked by S.S.I. 1999/187, regulation 23.back [14] S.S.I. 1999/187; revoked by S.S.I. 2001/50, regulation 23.back [15] S.S.I. 2001/50; revoked by S.S.I. 2002/139, regulation 26.back [20] S.I. 1983/1950, as amended by S.I. 1993/3119 and S.I. 1995/2922 and, as regards Scotland, by S.S.I. 2001/52, 55, 101 and 390.back [22] S.S.I. 2000/347, amended by S.S.I. 2001/50, 226 and 300, 2002/139 and 228, and 2003/302.back [23] Regulation 3 was substituted by S.S.I. 2001/226, regulation 2(3), and amended by S.S.I. 2002/139 and 2003/129.back [25] S.S.I. 2001/206, amended by S.S.I. 2001/248.back [26] S.I. 1998/2746, amended by S.S.I. 2000/323.back [31] S.I. 1986/1510, amended by S.I. 1990/2487, 1994/3142 and 1997/188.back [32] S.I. 1995/887, amended by S.I. 1996/1940, 1997/7 and 2499, 1998/2760, 1999/1228, S.S.I. 2001/161, 202 and 454 and 2002/279.back [35] S.I. 1994/2716, amended by S.I. 1997/3055 and S.S.I. 2000/323.back [38] Sensitive habitants, important for biodiversity reasons, may include juniper and montone scrub, herb-rich swords, already coded areas and wetland habitants as well as other natural and semi-natural habitats.back
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