Statutory Instrument 1997 No. 330 (S.23)

The Countryside Premium Scheme (Scotland) Regulations 1997

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© Crown Copyright 1997

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"Commission Regulation" means Commission Regulation (EC) No.746/96[4] laying down detailed rules for the application of the Council Regulation;

"conservation audit" means a report of a survey of eligible land which identifies the extent and location of features of conservation interest (including flora and fauna, geological and physiological features and features of archaeological interest) and the opportunities for enhancement of such features;

"Council Regulation" means Council Regulation (EEC) No.2078/92[5] on agricultural production methods compatible with the requirements of the protection of the environment and the maintenance of the countryside as last amended by Commission Regulation (EC) No. 2772/95[6];

"environmentally sensitive area" means an area designated as an environmentally sensitive area under section 18 of the Agriculture Act 1986[7];

"eligible land" means land which does not lie within an environmentally sensitive area and which is used for agriculture, is set-aside land or is a habitat site as defined in regulation 2(1) of the Habitats (Scotland) Regulations 1994[8];

"grazings committee" means a committee appointed under section 47(1) or (3) of the Crofters (Scotland) Act 1993[9] and includes a grazings constable;

"IACS" means the integrated administration and control system established by Council Regulation (EEC) No.3508/92[10]

"landlord" means-

(a) in the case of an agricultural holding to which the Agricultural Holdings (Scotland) Act 1991[11] (the "1991 Act") applies, the landlord within the meaning of section 85 of that Act;

(b) in the case of a croft within the meaning of the Crofters (Scotland) Act 1993 the landlord within the meaning of section 61(1) of that Act;

(c) in the case of a holding within the meaning of the Small Landholders (Scotland) Act 1911[12] to which the 1991 Act does not apply, the same as it means in the 1911 Act;

and, where appropriate, includes a head tenant;

"moorland" means land with predominantly semi-natural upland vegetation or comprising predominantly rock outcrops and semi-natural vegetation used primarily for rough grazing;

"relevant period" means a period of not less than 5 years or, in the case of an undertaking under these Regulations which is in substitution for an undertaking given under any of the Regulations mentioned in regulation 7(1) of these Regulations, a period which together with the expired period of the undertaking under those Regulations forms a continuous period of not less than 5 years;

"set-aside land" means set aside land as defined in the Arable Area Payments Regulations 1996[13];

"tenant" means-

(a) in the case of an agricultural holding to which the Agricultural Holdings (Scotland) Act 1991 (the "1991 Act") applies, the tenant within the meaning of section 85 of that Act;

(b) in the case of a croft within the meaning of the Crofters (Scotland) Act 1993, the crofter within the meaning of section 3(3) of that Act;

(c) in the case of a holding within the meaning of the Small Landholders (Scotland) Act 1911 to which the 1991 Act does not apply, the tenant within the meaning of section 2(2) of the 1911 Act;

and, where appropriate, includes a sub-tenant.

    (2) Any reference in these Regulations to a numbered regulation or Schedule shall be construed as a reference to the regulation or Schedule so numbered in these Regulations.

    (3) Words and phrases used in Schedules 1 to 4 and not defined in paragraph (1) shall be construed in accordance with Schedule 5.

Grants for purposes conducive to conservation
     3 .  - (1) The Secretary of State may make payment of a grant in respect of an undertaking to which these Regulations apply to an applicant who-

(a) is the lawful occupier of the eligible land to which such undertaking relates; and

(b) has made an application for grant which has been accepted by the Secretary of State.

    (2) These regulations apply to an undertaking by the applicant, for the relevant period-

(a) to follow, in relation to the whole of the eligible land to which the undertaking relates, the general environmental conditions set out in Schedule 1; and

(b) to carry out or, as the case may be, to carry out and maintain at least one of the activities referred to in paragraph (3).

    (3) The activities mentioned in paragraph (2) are-

(a) the management activities set out in column 1 of Schedule 2 to be undertaken on a site which forms part of the eligible land to which the undertaking relates and which meets the criteria specified in column 2 of that Schedule in relation to that activity; and

(b) the capital activities set out in column 1 of Schedule 3 to be undertaken and maintained on any part of the eligible land to which the undertaking relates.

    (4) The Secretary of State may make payment of a grant towards the cost of a conservation audit and a moorland management plan prepared in relation to an application for grant where such audit and, as the case may be, such plan have been prepared in accordance with any requirements made by the Secretary of State as to the form or content of such audit or plan.

Applications for grant
     4 .  - (1) An application for grant shall be made in writing at such time and in such form and shall contain such information as the Secretary of State may require.

    (2) An application for grant under regulation 3(1) shall include-

(a) a copy of a conservation audit carried out in relation to the eligible land to which the application relates;

(b) a map which shows all of that land and which identifies the habitats and features thereof relevant to the activities which the applicant proposes to undertake;

(c) a statement of such activities;

(d) where the conservation audit identifies moorland which would benefit from management and the applicant proposes to undertake any of the activities set out in Schedule 2 or 3 to benefit all or on any part of the identified moorland, a moorland management plan for the relevant period in relation to all or such part of the identified moorland;

(e) where the applicant proposes to undertake any of the capital activities set out in Schedule 3, an estimate of the payments for such activities sought for each year of the proposed undertaking;

(f) the proposed date of commencement of the undertaking; and

(g) where an application is made by a grazings committee-


(i) the written consent of a majority of the crofters ordinarily resident in the township and sharing in the common grazing to the application;

(ii) evidence that notice has been given in accordance with regulation 5(4); and

(iii) confirmation from the Crofters Commission that the Commission has approved the application or, as the case may be, has received no representation under regulation 5(5).

Crofters common grazings
     5 .  - (1) Subject to paragraph (4), a grazings committee may make an application for grant in relation to a common grazing with the consent of a majority of the crofters ordinarily resident in the township and sharing in the common grazing.

    (2) Where an undertaking is given by a grazings committee such undertaking shall include an obligation upon the committee to bind their successors in office to the undertaking.

    (3) Subject to paragraph (4), where an undertaking is given by a grazings committee payments by way of grant in respect of that undertaking shall be made to the clerk of the committee who shall divide such payment among the crofters who share in the common grazing in such proportion as may be determined by the grazings committee.

    (4) Where a grazings committee propose to apply under paragraph (1) they shall prior to making the application give notice of their intention to do so and of their proposed division, under paragraph (3), of grant, by advertisement or otherwise to the crofters ordinarily resident in the township and sharing in the common grazing.

    (5) Any such crofter as is mentioned in paragraph (4) may within one month of the date of the notice under that paragraph make representation in respect of the proposals to the Crofters Commission who may approve them with or without modification or reject them.

Restrictions on acceptance of application
     6 .  - (1) The Secretary of State shall not accept an application for grant in relation to any eligible land which is occupied by a tenant unless he is satisfied that the tenant has notified the landlord of his intention to make the application.

    (2) The Secretary of State shall refuse to accept an application for grant in relation to any eligible land where-

(a) he is satisfied that the use of the land in accordance with the proposals contained in the application would frustrate the purposes of any assistance previously given or to be given out of money provided by Parliament or the European Community;

(b) he is satisfied that the payment of grant under these Regulations would duplicate any assistance previously given out of money provided by Parliament or by the European Community;

(c) the applicant is prohibited from giving the undertaking under these regulations by application of a penalty pursuant to Article 20(2) of the Commission Regulation (reimbursement of aid and penalties); or

(d) the applicant is excluded from all aid under the Council Regulation by virtue of article 20(3) of the Commission Regulation and the grant in respect of the proposed undertaking would include such aid.

    (3) The Secretary of State shall not accept an application for grant without first having agreed with the applicant the date of commencement of the undertaking which shall in no circumstances be earlier than the date of submission of the application.

Transformation of undertakings
     7 .  - (1) A beneficiary under the Habitats (Scotland) Regulations 1994, the Set-Aside Access (Scotland) Regulations 1994[14] or the Heather Moorland (Livestock Extensification) (Scotland) Regulations 1995[15] may apply to substitute for the unexpired period of an undertaking under any of those Regulations an undertaking to which these Regulations apply.

    (2) The Secretary of State may accept an application under paragraph (1) only where he is satisfied that the conditions set out in article 13 (transformation of undertakings) of the Commission Regulation are met.

    (3) The acceptance by the Secretary of State of an application under paragraph (1) shall not give rise to any right or liability under these Regulations for anything done prior to the date of commencement of the undertaking to which these Regulations apply except to the extent that payment is provided under these Regulations for any period which commenced on or after that date in respect of stock disposal prior to that date.

Amount of grant
     8 .  - (1) Subject to the provisions of this regulation, the grant payable under regulation 3(1) shall be calculated with reference to the activities to be undertaken and in relation to each such activity shall be at a rate not exceeding the maximum payment rate specified in column 2 of Schedule 4 corresponding to that activity.

    (2) The grant payable under regulation 3(1) in respect of an undertaking, excluding any amount payable in respect of stock disposal, shall not exceed the sum of £30,000 over the relevant period or, in the case of an undertaking relating to common grazing, £60,000 over such period or, in either case, such lower sum as may be determined in accordance with the provisions of this regulation.

    (3) Where an undertaking is at the date of its commencement a subsequent undertaking, the sum specified in paragraph (2) in relation to that undertaking shall be reduced to the extent that the amount mentioned in paragraph (4) relates to the same period as the subsequent undertaking.

    (4) The amount referred to in paragraph (3) is the amount of grant payable, including any amount already paid, under these Regulations to the applicant, or to any person who together with the applicant is a farmer for the purposes of IACS, in respect of any prior undertaking.

    (5) For the purposes of this regulation an undertaking is a subsequent undertaking-

(a) if it is given by an applicant who has given a prior undertaking; or

(b) if any person mentioned in paragraph (4) has given a prior undertaking and both undertakings relate to eligible land on the holding for the purposes of IACS of the farmer.

    (6) For the purposes of this regulation an undertaking is a prior undertaking if it is an undertaking under these Regulations the agreed date of commencement of which is earlier than the date of commencement of another undertaking under these regulations given by the same applicant or by a person mentioned in paragraph (4).

    (7) Where the agreed date of commencement of an undertaking is the same as the date of commencement of another undertaking given by the same applicant or by a person mentioned in paragraph (4), the Secretary of State shall determine the order in which such undertakings commenced and for the purposes of this regulation an undertaking shall be deemed to have a date of commencement earlier than another where the Secretary of State determines under this paragraph that it commenced before another undertaking.

    (8) Where this paragraph applies, the Secretary of State shall review the sum specified in paragraph (2), or such lower sum as is determined after application of the provisions of this regulation, including the prior application of this paragraph, in relation to an undertaking and shall reduce such sum to the extent that payment of it would result in the applicant or any person mentioned in paragraph (4) receiving grant under these Regulations which he would not have received had the applicant been the applicant at the date of commencement of the undertaking or been established as being a person who together with others was a farmer for the purposes of IACS at that date.

    (9) Paragraph (8) applies-

(a) where a new occupier of all or any part of the land to which an undertaking relates takes on the undertaking in accordance with regulation 10; and

(b) where after the date of commencement of the undertaking the applicant becomes or is established as having been a person who together with others is or was a farmer for the purpose of IACS.

    (10) The provisions of paragraphs (2) to (9) shall not apply to an undertaking which is in substitution for the unexpired period of an undertaking under any of the Regulations mentioned in regulation 7(1).

    (11) The grant payable under regulation 3(4) in respect of a conservation audit or a moorland management plan shall not exceed the maximum payment rate specified in column 2 of Schedule 4 in relation to such audit or plan.

Claims and payment
     9 .  - (1) A claim for grant under regulation 3(1) shall be made at such time and in such form and shall be accompanied by such information as the Secretary of State may require.

    (2) Payment of grant under regulation 3(1) shall be made-

(a) in the case of a payment in relation to a management activity included in an undertaking, by annual instalment paid in arrear; and

(b) in the case of a payment in relation to a capital activity included in an undertaking, upon completion of the work.

    (3) Payment of grant as provided in paragraph (2) shall be made only where the Secretary of State is satisfied that-

(a) the general environmental conditions set out in Schedule 1 have been followed during the period to the date of payment; and

(b) the management requirements set out in column 3 of Schedule 2 or, as the case may be, the specification set out in column 2 of Schedule 3 in relation to the activity have been met.

    (4) Payment of grant under regulation 3(4) shall be made upon submission of an application for grant in accordance with regulation 4.

    (5) The provisions of this regulation are, insofar as the grant claimed includes aid under the Council Regulation subject to Article 10 (combination of aids) and Article 14(2) and (3) (rules governing undertakings and payment procedures) of the Commission Regulation.

Change of occupation
     10 .  - (1) Where during the period of an undertaking, there is a change of occupation of all or any part of the land to which that undertaking relates the former occupier (or, if he has died, his executors) shall within 3 months notify the Secretary of State in writing of the change of occupation, and shall supply to the Secretary of State such information relating to that change in such form and within such period as the Secretary of State may determine.

    (2) A new occupier of all or any part of the land who wishes to take on the undertaking shall furnish the Secretary of State with such information in such form and within such period following the change of occupation as the Secretary of State may determine.

    (3) A new occupier of the land may take on the undertaking where the Secretary of State is satisfied that-

(a) the former occupier had complied with the undertaking to the date of the change of occupation; and

(b) the new occupier is the lawful occupier of the land and has since the date of change of occupation complied with the undertaking.

    (4) A new occupier of any part of the land or, as the case may be, the former occupier of all the land may take on the undertaking insofar as it extends to that part of the land which he occupies or as the case may be continues to occupy where the Secretary of State is satisfied that-

(a) such new occupier or, as the case may be, such former occupier of all the land, is the lawful occupier of the part of the land which he occupies and has since the date of change of occupation complied or, as the case may be, continued to comply with the undertaking insofar as it extends to the part of the land which he occupies; and

(b) it is reasonable for the occupier to do so having regard to the activities included in the undertaking and the part of the land which is occupied by the new occupier or, as the case may be, continues to be occupied by the former occupier of all the land.

    (5) Where occupation of the land is divided the Secretary of State shall determine-

(a) the extent to which the activities included in the undertaking relate to any part of the land occupied by a new occupier or, as the case may be, the former occupier of all the land; and

(b) the proportion, if any, of the grant which would be payable under paragraph (7) for the remainder of the period of the undertaking in respect of that part of the land.

    (6) Where the Secretary of State is satisfied as specified in paragraph (3), he shall, subject to regulation 8, make payments of the grant for the remainder of the period of the undertaking to the new occupier of the land who has taken on the undertaking.

    (7) Where the Secretary of State is satisfied as specified in paragraph (4) he shall, subject to regulation 8, make payments of such proportion of the grant, if any, as he has determined under paragraph (5) are due for the remainder of the period of the undertaking to the new occupier or, as the case may be, former occupier of all the land who has taken on the undertaking.

    (8) Where within 3 months from the date of change of occupation the undertaking has not been taken on in accordance with paragraph (3) or, as the case may be, paragraph (4), the Secretary of State may-

(a) withhold the whole or any part of any payment of grant under these Regulations due to the former occupier in respect of the undertaking; and

(b) recover from the former occupier or his executors the whole or any part of any payment of grant under these Regulations already made to him in respect of the undertaking.

    (9) In the application of this regulation to a common grazing "change of occupation" includes the apportionment to a crofter of any land from the common grazing during the period of the undertaking but does not include a change in the membership of the grazings committee.

    (10) The provisions of this regulation are, insofar as the grant paid under these Regulations includes aid under the Council Regulation, subject to Article 11 (transfer of holding) and Article 12 (force majeure) of the Commission Regulation and where by virtue of Article 11 an applicant for grant is required to reimburse, in accordance with Article 20(1) of the Commission Regulation, the aid paid, the rate of interest shall be that provided in regulation 13(1).

Obligation to permit entry and inspection
     11 .  - (1) An applicant shall permit any person duly authorised by the Secretary of State, accompanied by such persons acting under his instructions as appear to that authorised person to be necessary for the purpose, at all reasonable hours and on production on demand of some duly authenticated document showing his authority, if so required, to enter upon the land to which an undertaking or, as the case may be, a proposed undertaking relates for the purpose of-

(a) carrying out any inspection of such land or any document or record in the possession or under the control of the applicant relating to, or which the authorised person may reasonably suspect relates to, the application with a view to verifying the accuracy of any particulars given in the application, in a claim under regulation 9(1) or under regulation 10(1); and

(b) ascertaining whether the undertaking given or taken on or, as the case may be, proposed to be given or taken on by him under these Regulations has been duly complied with.

    (2) An applicant shall render all reasonable assistance to the authorised person in relation to the matters mentioned in paragraph (1), and in particular shall-

(a) produce any document or record which may be required by the authorised person for inspection;

(b) permit the authorised person to take copies or extracts from any such document or record;

(c) where any such document or record is kept by means of a computer, produce it in a form in which it may easily be read and taken away; and

(d) at the request of the authorised person, accompany him in making the inspection of any land and identify any area of land which relates to the application or to any change of occupation notified under regulation 10.

Withholding and recovery of grant
     12 .  - (1) Where an applicant-

(a) in making the application, or in furnishing any information in connection with the application for grant or under regulation 9(1) or 10(2), has made a statement which was false or misleading in a material respect;

(b) has failed to do something which he undertook to do if the grant was made; or

(c) is in breach of any condition subject to which the grant was made,

the Secretary of State may withhold the whole or any part of any grant payable to that applicant, and may recover the whole or any part of any such grant already paid to him.

    (2) Before withholding or recovering any grant under paragraph (1) or under regulation 10(8), the Secretary of State shall-

(a) give to the applicant for grant a written explanation of the reasons for the proposed withholding or recovery;

(b) afford the applicant for grant an opportunity of appearing before and being heard by a person appointed for that purpose by the Secretary of State; and

(c) consider the report by the person so appointed and supply a copy of the report to the applicant for grant.

    (3) Insofar as the grant paid under these Regulations includes aid under the Council Regulation-

(a) the words "in a material respect" in paragraph 1 shall be of no effect; and

(b) the Secretary of State may insofar as permitted by Article 20(2) of the Commission Regulation, withhold from or, as the case may be, require an applicant to whom paragraph (1) applies to pay an amount not exceeding 10% of the aid payable, including any amount already paid, in respect of the undertaking in addition to recovering or withholding the aid under that paragraph.

Rate of interest
     13 .  - (1) Where an applicant is by virtue of Article 20(1) (reimbursement of aid and penalties) of the Commission Regulation required to reimburse the amount of a wrongful payment with interest for the period between payment and the reimbursement, the rate of interest shall be one percentage point above the sterling three month London interbank offered rate applicable during that period.

    (2) In any proceedings for recovery of interest calculated at the rate provided in paragraph (1), a certificate of the Secretary of State stating such rate applicable during a period specified in the certificate shall be conclusive evidence of that rate if the certificate also states that the Bank of England notified the Secretary of State of that rate.

Recovery of payments
     14 . Where an amount falls to be paid to the Secretary of State by virtue of (or by virtue of an action taken under) these Regulations or the Commission Regulation, such amount shall be recoverable as a debt.

Lindsay
Parliamentary Under Secretary of State, Scottish Office

St Andrew's House, Edinburgh
10th February 1997


We consent,

Roger M Knapman
Bowen Wells
Two of the Lords Commissioners of Her Majesty's Treasury

11th February 1997

[2] 1972 c.68. back

[3] 1995 c.25; section 95(5)(c) provides that the appropriate Minister as respects Scotland means the Secretary of State. back

[4] OJ No.L102, 25.4.96, p.19. back

[5] OJ No.L215, 30.7.92, p.85. back

[6] OJ No. L288, 1.12.95, p.35. back

[7] 1986 c.49. back

[8] S.I. 1994/2710 as amended by S.I. 1996/3035. back

[9] 1993 c.44. back

[10] OJ No.L355 5.12.92, p.1. back

[11] 1991 c.55. back

[12] 1911 c.49. back

[13] S.I. 1996/3142. back

[14] S.I. 1994/3085. back

[15] S.I. 1995/891. back