The Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2004

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"the Commission Regulation" means Commission Regulation (EC) No. 796/2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in the Council Regulation[2];

"control report" means a control report pursuant to Article 48 of the Commission Regulation, and "provisional control report" shall be a draft control report detailing all the information required in a control report;

"the Council Regulation" means Council Regulation (EC) No. 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No. 2019/93, (EC) No. 1452/2001, (EC) No. 1453/2001, (EC) No. 1454/2001, (EC) No. 1868/94, (EC) No. 1251/1999, (EC) No. 1254/1999, (EC) No. 1673/2000, (EEC) No. 2358/71 and (EC) No. 2529/2001[3], amended by Council Regulation (EC) No. 21/2004[4], Council Regulation (EC) No. 583/2004[5] and Council Regulation (EC) No. 864/2004[6];

"electronic communication" means an electronic communication as defined in the Electronic Communications Act 2000[7] which has been recorded and is consequently capable of being reproduced;

"farmer" has the same meaning as in Article 2(a) of the Council Regulation;

"growing season" means the growing season which ends on or before 15th October;

"holding" has the same meaning as in Article 2(b) of the Council Regulation;

"non compliance" has the same meaning as in Article 2(35) of the Commission Regulation;

"overgrazing" means grazing land with livestock or other animals 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;

"spring" means the period beginning on 1st March and ending on 31st May in any calendar year;

"the Scottish Environment Protection Agency" means the Scottish Environment Protection Agency established under section 20 of the Environment Act 1995[8];

"Scottish Natural Heritage" means Scottish Natural Heritage established under section 1 of the Natural Heritage (Scotland) Act 1991[9];

"site of special scientific interest" means land designated as a site of special scientific interest pursuant to section 28 of the Wildlife and Countryside Act 1981 or section 3(6) of the Nature Conservation (Scotland) Act 2004[10];

"the Uncultivated Land and Semi-Natural Areas Regulations" means the Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) (Scotland) Regulations 2002[11]; and

"winter" means the period beginning on the day after harvest and ending on the last day of February in the following calendar year.

    (2) Other expressions used in these Regulations have, unless the context otherwise requires, the meaning they bear in the Council Regulation and the Commission Regulation.

    (3) Unless the context otherwise requires, any reference in these Regulations to a numbered paragraph or sub-paragraph is a reference to the paragraph so numbered in the regulation or Schedule to these Regulations, or to the sub-paragraph so numbered in the paragraph, in which that reference occurs.

    (4) Except in relation to a management regime, approval or consent under paragraphs 10(2), 11(4), 12(2)(a), 14, 15(1) or 16(1) of the Schedule to these Regulations, where this paragraph shall only apply if the farmer so consents, or has contacted the Scottish Ministers by way of an electronic communication in relation to an approval or consent, any reference in these Regulations to anything done in writing or produced in written form includes a reference to an electronic communication.

Designation
     3. The Scottish Ministers shall be the competent national authority for the purposes of providing the list of statutory management requirements and good agricultural and environmental condition required by Article 3(2) of the Council Regulation.

Good agricultural and environmental condition
     4.  - (1) The standards of good agricultural and environmental condition referred to in Article 5 of the Council Regulation are specified in this regulation and the Schedule to these Regulations.

    (2) The land must be maintained in a condition that would make it reasonably practicable for an authorised person (and any person who may accompany an authorised person) to exercise any of the powers specified in regulation 6 as necessary to ascertain whether any of the statutory management requirements under Article 3 of the Council Regulation or any requirement of this regulation or the Schedule to these Regulations has been complied with.

Competent Control Authority
     5.  - (1) The Scottish Ministers are designated as the Competent Control Authority for the purposes of the derogation in Article 42(2) of the Commission Regulation.

    (2) The Scottish Ministers may require the relevant authorities to carry out controls for the purposes of Article 9 and Chapters I and III of Title III of the Commission Regulation.

    (3) The relevant authorities shall-

(a) send to the Scottish Ministers a provisional control report; and

(b) for the purposes of Article 65 of the Commission Regulation where a non-compliance is established as a consequence of any kind of checks, notify the Scottish Ministers of any non-compliance established.

    (4) The Scottish Ministers shall pursuant to Article 48 of the Commission Regulation establish the final control report and where the Scottish Ministers are not the Paying Agency, send the control report to the Paying Agency.

    (5) In this regulation, "the relevant authorities" means-

(a) Scottish Natural Heritage; and

(b) the Scottish Environment Protection Agency.

Powers of authorised persons
     6.  - (1) In addition to any existing power of entry an authorised person may exercise any of the powers specified in this regulation for the purpose of-

(a) providing a control report or a provisional control report;

(b) establishing whether there has been a non-compliance; or

(c) ascertaining whether an offence under these Regulations has been or is being committed.

    (2) An authorised person shall, on producing, if so required, some duly authenticated document showing that person's authority, have a right at all reasonable hours to enter any land (excluding any building used only as a dwelling) which is or which such person has reasonable cause to believe to be a holding occupied by, or in the possession of, a farmer or employee, agent, contractor or tenant of the farmer.

    (3) An authorised person may-

(a) carry out any inquiries, checks, examinations and tests;

(b) take any samples;

(c) inspect all or any part of the land farmed, laid fallow or withdrawn from agricultural production by a farmer including land set-aside pursuant to Article 54 of the Council Regulation;

(d) inspect any crops growing on that land or kept on it;

(e) mark any animal or other thing for identification purposes;

(f) have access to, inspect and copy any records (in whatever form they are held) kept under these Regulations, or remove such records to enable them to be copied; and

(g) have access to, inspect and check the operation of, any computer and any associated apparatus or material which is or has been in use in connection with the records; and for this purpose may require any person having charge of, or otherwise concerned with the operation of, the computer, apparatus or material to afford the authorised person such assistance as may reasonably be required and, where a record is kept by means of a computer, may require the records to be produced in a form in which they can be taken away.

    (4) An authorised person entering any premises by virtue of this regulation may be accompanied by-

(a) such other persons as the authorised person considers necessary; and

(b) any representative of the European Commission acting for the purposes of the Council Regulation and the Commission Regulation.

    (5) If an authorised person enters any unoccupied premises the authorised person shall leave them as effectively secured against unauthorised entry as before those premises were entered.

Assistance to authorised persons
     7. A farmer or any employee, agent, contractor or tenant of a farmer shall give an authorised person such assistance as the authorised person may reasonably request so as to enable the authorised person to exercise any power conferred by regulation 6.

Offences and penalties
     8.  - (1) Any person who-

(a) intentionally obstructs an authorised person (or person accompanying an authorised person and acting under the authorised person's instructions) in the exercise of a power conferred by regulation 6; or

(b) without reasonable cause fails to comply with a request made under regulation 7,

shall be guilty of an offence.

    (2) Nothing in paragraph (1)(b) shall be construed as requiring any person to answer any question if to do so might incriminate that person.

    (3) A person guilty of an offence under paragraph (1) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Offences of bodies corporate
     9.  - (1) Where an offence under these Regulations committed by a body corporate or a partnership is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of any director, manager, secretary or similar officer of the body corporate, or any person who was purporting to act in any such capacity (or in the case of a partnership, a partner or a person who was purporting to act as such), that officer or person as well as the body corporate or the partnership, as the case may be, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

    (2) Where the affairs of a body corporate are managed by its members, the provisions of paragraph (1) shall apply in relation to the acts and defaults of a member in connection with the members' functions of management as if the member were a director of the body corporate.


ROSS FINNIE
A member of the Scottish Executive

St Andrew's House, Edinburgh
30th November 2004

Muirburning
     6. A farmer must comply with the requirements of the Muirburn Code[12].

(a) the prior written consent of-


(i) subject to sub-paragraph (3), Scottish Natural Heritage for land within a site of special scientific interest;

(ii) the Scottish Ministers for land under an agri environment agreement in connection with support paid under Chapter VI of Title II of Council Regulation (EC) 1257/1999 as amended[13];



(b) approval under the Uncultivated Land and Semi-Natural Areas Regulations[14];

(c) any consent or approval by or under any other enactment which would prohibit that ploughing up.

    (3) This paragraph shall not apply where the necessary consent or approval would be the consent of Scottish Natural Heritage at a site of special scientific interest so designated by consequence of its status as a European site within the meaning of the Conservation (Natural Habitats, &c.) Regulations 1994[15].

Works on rough grazings and other semi-natural areas
     13.  - (1) A farmer must not undertake new drainage works, plough up, clear, level, re-seed or cultivate rough grazings and other semi-natural areas without approval under the Uncultivated Land and Semi-Natural Areas Regulations.

    (2) In this paragraph, "rough grazings and other semi-natural areas" means land containing semi-natural vegetation including heathland, heather moorland, bog, unimproved grassland and rough grassland which is used or suitable for grazing.

Pesticides, lime and fertiliser on rough grazings and other semi-natural areas
     14. A farmer must not apply pesticides, lime or fertiliser to rough grazings and other semi-natural areas, except-

(a) as approved under the Uncultivated Land and Semi-Natural Areas Regulations;

(b) in the case of lime or fertiliser, where no conservation damage to the diversity of species in those areas will result;

(c) in the case of herbicides, to control injurious weeds to which the Weeds Act 1959[16] applies;

(d) to control bracken with Asulam or other herbicides approved within the meaning of the Control of Pesticides Regulations 1986[17] or the Plant Protection Products (Scotland) Regulations 2003[18]; or

(e) to control other plants, with the prior written consent of the Scottish Ministers.

Retention of landscape features

Boundary features
     15.  - (1) A farmer must not remove, destroy or damage drystane or flagstone dykes, turf and stone-faced banks, walls, hedges and hedgerow trees, boundary trees or watercourses which serve as boundaries to agricultural land without the prior written consent of-

(a) the Scottish Ministers; or

(b) by or under any enactment, another authority as shall be notified to the farmer by the Scottish Ministers when the farmer applies to them for consent.

    (2) A farmer must not trim a hedge in the period beginning on 1st March and ending on 31st July, except only to the extent necessary for the purposes of road safety.

    (3) Written consent under sub-paragraph (1) is not required to widen field entrances to enable access for livestock or farm machinery.

    (4) In this paragraph "remove, destroy or damage" does not include-

(a) trimming a hedge; or

(b) lopping branches from hedgerow trees.

Landscape features
     16.  - (1) A farmer must prevent the deterioration of non-productive landscape features on the land, including shelter belts, copses and ponds, except with the prior written consent of-

(a) the Scottish Ministers; or

(b) by or under any enactment, another authority as shall be notified to the farmer by the Scottish Ministers when the farmer applies to them for consent.

    (2) In this paragraph, "deterioration" means-

(a) in relation to shelter belts and copses-


(i) not maintaining functional stock proof fences around those features; or

(ii) severe poaching where feeding or other livestock husbandry practices have occurred within those features because the farmer has not reduced the livestock numbers so as to cause the turf to recover to the extent that there is no longer a predominantly muddy surface by any time during the growing season in the calendar year following the date when that severe poaching first occurred; or



(b) not maintaining ponds on the holding by allowing eutrophication or by drainage.

    (3) In this paragraph "severe poaching" means the cutting up of turf to the destruction of the underlying vegetation leading to a predominantly muddy surface from trampling by livestock.

Protected historic environment
     17. A farmer must not alter, or cause (whether directly or indirectly) the damage or destruction of the following buildings, gardens and landscapes without the relevant prior consent or permission, where that consent or permission is required to allow that alteration, damage or destruction:-

(a) a building for the time being included in the Schedule of monuments compiled and maintained under section 1 of the Ancient Monuments and Archaeological Areas Act 1979[19] without prior scheduled monument consent[20] within the meaning of that Act;

(b) a listed building within the meaning of section 1(4) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997[21] without prior listed building consent under section 7 of that Act; or

(c) a historic garden or designed landscape within the meaning of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992[22] in respect of which consultation is required before grant of planning permission under article 15(1)(j)(iv) of that Order.

Avoiding the encroachment of unwanted vegetation on agricultural land

Encroachment of vegetation
     18.  - (1) Subject to sub-paragraph (2), a farmer must maintain land in a condition where vegetation does not encroach onto the land to the point that the land is not capable of

(a) being used for the production of agricultural products; or

(b) being put in that condition by any time during the growing season in the calendar year following the date when the encroachment occurred.

    (2) The requirement in sub-paragraph (1) does not apply-

(a) to the encroachment of native species in the case of-


(i) the recolonisation of trees across a native woodland boundary;

(ii) the recolonisation of gorse, birch and juniper sub-species to the extent that it forms an area of mixed habitats; or

(iii) the reversion of land to wet grassland or wetland; or



(b) where there is no degradation of the environmental and agricultural value of the land and the farmer has prior to that encroachment declared any environmental gain to be achieved which is relied on under this paragraph-



(i) in the farmer's aid application under Article 22 of the Council Regulation; or

(ii) in any other prior application for a direct payment.

[2] O.J. No. L 141, 30.04.2004, p.18.back

[3] O.J. No. L 270, 21.10.2003, p.1.back

[4] O.J. No. L 5, 9.1.04, p. 8.back

[5] O.J. No. L 91, 30.3.04, p. 1.back

[6] O.J. No. L 206, 9.6.04, p. 20.back

[7] 2000 c.7.back

[8] 1995 c.25.back

[9] 1991 c.28.back

[10] Section 28 of the Wildlife and Countryside Act 1981 (c.69) is revoked by paragraph 4 of schedule 7 to the Nature Conservation (Scotland) Act 2004 (asp 6) as a consequence of the coming into force on 29th November 2004 of Part 2 of that Act, subject to transitional arrangements contained in schedule 5 to that Act.back

[11] S.S.I. 2002/6.back

[12] Published in 2004 by the Scottish Executive Environment and Rural Affairs Department ("SEERAD") and available from SEERAD, Pentland House, 47 Robb's Loan, Edinburgh EH14 1TY.back

[13] O.J. No. L 160, 26.6.1999, p.80, amended by Commission Regulation (EC) No. 1783/2003 (O.J. No. L 270, 21.10.2003, p.70), the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (O.J. L 236, 30.09.2003, p.33, Council Regulation (EC) No. 576/2004 (O.J. L 90, 27.3.2004), p. 1 and Council Regulation (EC) No. 583/2004 (O.J. No. L 91, 30.3.2004, p.1).back

[14] S.S.I. 2002/6.back

[15] S.I. 1994/2716, amended by S.S.I. 2004/475.back

[16] 1959 c.54.back

[17] S.I. 1986/1510, amended by S.I. 1990/2487, 1994/3142 and 1997/188.back

[18] S.S.I. 2003/579, amended by S.S.I. 2004/368.back

[19] 1979 c.46.back

[20] Certain works (including agricultural, horticultural and forestry works) have scheduled monument consent by virtue of the Ancient Monuments (Class Consents) (Scotland) Order 1996 (S.I. 1996/1507).back

[21] 1997 c.9.back

[22] S.I. 1992/224, to which there are amendments not relevant to these Regulations.back