Title, commencement and interpretation

1.  (1)  These Regulations may be cited as the Common Agricultural Policy Direct Payments and Support Schemes (Cross Compliance) Regulations (Northern Ireland) 2014 and shall come into operation on 1st January 2015.

(2) The Interpretation Act (Northern Ireland) 1954(3) shall apply to these Regulations as it applies to an Act of the Assembly.

(3) In these Regulations-

"agri-environment agreement" means an agreement entered into under a measure supported by the European Fund for Rural Development and forming part of the Northern Ireland Rural Development Programme approved by the European Commission under Article 10 of Council Regulation (EU) No. 1305/2013 or under a measure listed in Article 36 of Council Regulation 1698/2005;

"authorised person" means any person authorised by the Department to act in matters relating to these Regulations, the Horizontal Regulation, the Commission Implementing Regulation or the Commission Delegated Regulation;

"the Commission Delegated Regulation" means Commission Delegated Regulation 640/2014 of the European Parliament and of the Council with regard to the integrated administration and control system and conditions for refusal or withdrawal of payments and administrative penalties applicable to direct payments, rural development support and cross compliance;

"the Commission Implementing Regulation" means Commission Implementing Regulation No 809/2014 laying down rules for the application of Regulation (EU) 1306/2013 of the European Parliament and of the Council with regard to the integrated administration and control system, rural development measures and cross compliance;

"Commission Regulation (EU) 1120/2009" means Commission Regulation (EC) No 1120/2009 laying down detailed rules for the implementation of the single payment scheme provided for in Title III of Council Regulation (EC) No 73/2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers(4);

"Council Regulation 1698/2005" means Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD)

"the Department" means the Department of Agriculture and Rural Development;

"the Direct Payment Regulation" means Regulation (EU) No 1307/2013 of the European Parliament and of the Council establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation No 637/2008 and Council Regulation (EC) No 73/2009(5);

"the Horizontal Regulation" means Regulation (EU) No 1306/2013 of the European Parliament and of the Council on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008(6);

"non compliance" means contravention of any rule on cross compliance for the purposes of Article 93 of the Horizontal Regulation;

"permanent pasture" has the meaning given to it in Article 2 of Commission Regulation 1120/2009(7).

(4) Any reference in these Regulations to Community instrument is a reference to that instrument as amended on the date these Regulations are made.

(5) Other expressions used in these Regulations shall be construed in accordance with the Direct Payment Regulation.

Standards of good agricultural and environmental condition

2.  (1)  The standards of good agricultural and environmental condition set out in Schedule 1 apply as minimum requirements for the purposes of Article 94(1) of, and Annex II to the Horizontal Regulation.

(2) Any action required to comply with an agri-environment agreement shall not constitute non compliance.

Permanent Pasture

3.  (1)  If it is established that the ratio in Article 37(1) of the Commission Delegated Regulation has decreased in 2014 at national or regional level, the Department may prohibit a farmer from converting land under permanent pasture, except in the circumstances mentioned in Article 37(2) of that Regulation or with prior authorisation from the Department.

(2) If it is established that the ratio in Article 37(1) of the Commission Delegated Regulation has decreased in 2014 at national or regional level by more than 5% the Department shall prohibit a farmer from converting land under permanent pasture except in the circumstances mentioned in Article 37(2) of the Regulation or with prior authorisation from the Department.

(3) Any authorisation given by the Department under paragraph (1) or (2) may be subject to the conditions referred to in the third sub-paragraph of Article 37(1) of the Commission Delegated Regulation.

(4) Where it is established that the obligation referred to in Article 3(2) of Regulation 1122/2009 cannot be ensured in 2014 the Department shall oblige a farmer to reconvert land into land under permanent pasture in accordance with Article 37(3) of the Commission Delegated Regulation.

(5) This Regulation shall apply only to the year 2015.

Competent Control Authority

4.  (1)  For the purposes of Article 67 of the Commission Implementing Regulation-

(a)the Department of the Environment is a specialist control body who shall bear the responsibility for carrying out the controls in respect of SMR 1 to 3 and paragraphs 1 to 3 of Schedule 1;

(b)the Health and Safety Executive for Northern Ireland is the specialist control body who should bear the responsibility of carrying out controls in respect of SMR 10; and

(c)the Department is the specialist control body who shall bear the responsibility of carrying out controls in respect of SMR 4 to13 and all other paragraphs in Schedule 1.

(2) In this regulation, any reference to a numbered SMR is a reference to the Statutory Management Requirement bearing that number in Annex II to the Horizontal Regulation.

Powers of authorised persons

5.  (1)  An authorised person may exercise any of the powers specified in this regulation for the purposes of -

(a)providing the control report pursuant to Article 72 of the Commission Implementing Regulation;

(b)establishing whether there has been non-compliance in any case; or

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

(2) A person so authorised, on producing, if so required, some duly authenticated document showing the person's authority to do so, have a right at all reasonable hours to enter any land, other than a building used only as a dwelling.

(3) An authorised person may-

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

(b)take samples;

(c)inspect all of any part of the land, (whether it is farmed or is withdrawn from agricultural production) and any livestock, crops, machinery or equipment;

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

(e)have access to, inspect and copy any documents or records (in whatever form they are held) or remove such records to enable them to be copied;

(f)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 documents or records; and for this purpose require any person having charge of, or otherwise concerned with the operation of, the computer, apparatus or material to afford such assistance as is reasonably required and, where a document or record is kept by means of a computer, require the document or record to be produced in a form in which it can be taken away;

(g)remove a carcase found on the land for the purpose of carrying out a post-mortem examination on it;

(h)take a photograph of anything on the land; and

(i)remove anything reasonably believed to be evidence of any non-compliance.

(4) An authorised person entering any premises by virtue of this regulation may take with him-

(a)such other persons as he considers necessary; and

(b)any representative of the European Commission acting for the purposes of the Horizontal Regulation, the Commission Implementing Regulation and the Commission Delegated Regulation.

(5) If an authorised person enters any unoccupied premises he shall leave them as effectively secured against unauthorised entry as he found them.

(6) An authorised person who enters any land under a power under other legislation may exercise any of the powers specified in this regulation for the purposes of enforcing these Regulations.

Assistance to authorised persons

6.  A farmer or any employee, agent, contractor or tenant of a farmer shall give an authorised person such assistance as may be reasonably requested so as to enable the authorised person to exercise any power conferred on the authorised person by regulation 5.

Offences and penalties

7.  (1)  Any person who-

(a)intentionally obstructs an authorised person (or accompanying person acting under the authorised person's instructions) in the exercise of a power conferred on the authorised person by regulation 5; or

(b)without reasonable cause fails to comply with a request made under regulation 6, 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 him.

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

Revocation

8.  (1)  The Regulations specified in Schedule 2 are hereby revoked.

(2) The provisions revoked by paragraph (1) shall continue to apply in relation to a single application (within the meaning of the Common Agricultural Policy Single Payment and Support Schemes (Integrated Administration and Control Systems) Regulations 2009) as those provisions had effect before paragraph (1) came into force.

Sealed with the Official Seal of the Department of Agriculture and Rural Development on 25th November 2014

Andrew Elliott

A senior officer of the

Department of Agriculture and Rural Development

Regulation 2(1)

SCHEDULE 1STANDARDS OF GOOD AGRICULTURAL AND ENVIRONMENTAL CONDITION

Establishment of buffer strips along water courses

1.  A farmer shall comply with Articles 9(4), 9(5) and 9(6) of the Nitrates Action Programme Regulations (Northern Ireland) 2014.

Irrigation Authorisations

2.  (1)  If a farmer is abstracting or impounding more than 10m³ but less than 20m³ of water for irrigation purposes in any 24 hour period from underground strata or waterways the activity must be authorised under regulation 5 of the Water Abstraction and Impoundment (Licensing) Regulations (Northern Ireland) 2006(8) and adhere to the requirements of the authorisation.

(2) If a farmer is abstracting or impounding 20m³ or more of water from underground strata and waterways for irrigation purposes in any 24 hour period the activity must be authorised by licence under regulation 10 of the Water Abstraction and Impoundment (Licensing) Regulations (Northern Ireland) 2006 and adhere to the requirements of the licence.

Protection of ground water against pollution

3.  (1)  A farmer shall comply with

(a)Article 7 of the Water Order(9) in so far as it relates to groundwater; or

(b)regulation 19 of the Groundwater (Northern Ireland) Regulations 2009(10).

(c)a notice or any condition of a notice served under regulation 24 or 25 of the Groundwater (Northern Ireland) Regulations 2009,

(2) A farmer shall ensure that the requirements concerning the siting, operation and maintenance of sheep dipping facilities in the Code of Good Agricultural Practice for the Prevention of Pollution to Water, Air and Soil(11) are complied with.

Minimum soil cover

4.  (1)  A farmer shall ensure that after harvesting a crop of cereals (other than maize), oil seeds or grain legumes that from harvest until 15th January in the following year one of the following conditions is met on that land:

(a)the stubble of the harvested crop remains in the land; or

(b)the land is sown with a crop which will take up nitrogen.

(2) The Department shall vary or suspend any of the requirements in sub paragraph (1) where in its opinion–

(a)the farmer has prepared the land as a seedbed but is unable to sow the crop within 10 days (because to do so would result in a breach of paragraph 5(2)) or

(b)an area is affected by extreme weather conditions which make it impracticable to comply.

(3) Where the Department has varied or suspended any requirements under sub paragraph (2), it shall publish directions to the farmers in the area concerned stating, with reasons, the details and duration of the variation or suspension, and the farmers shall comply with the requirements as varied in the directions.

(4) The farmer shall ensure that residues of crops harvested after 1st November are not disturbed until just before sowing the spring crop on that land.

(5) Sub-paragraph (1) does not apply in relation to any land between 1 November and 15 January where:

(i)the land is used for a ploughing match organised by the Northern Ireland Ploughing Association or any body affiliated to it; and

(ii)that association or body has received a derogation from the Department.

Minimum land management reflecting site specific conditions to limit erosion

5.  (1)  A farmer shall prevent soil from being excessively trampled, poached or rutted, including on bank sides and along water courses.

(2) A farmer shall not carry out any cultivations if water is standing on the surface, or if the soil is waterlogged.

(3) A farmer shall ensure that supplementary feeding sites and sacrifice areas are rotated on a minimum of an annual basis.

(4) A farmer shall minimise soil erosion by not permitting excessive trampling, poaching or vehicle rutting.

(5) A farmer shall not cause runoff to waterways where a supplementary feeding site or sacrifice area has been established.

(6) Where a sacrifice area is permitted, the land on which it is located shall:

(a)be ploughed and sown in the following spring;

(b)be allowed to regenerate naturally the following spring provided that the land has at least 90% grass coverage by 31st of May in that year; or

(c)be surface seeded provided that the land has at least 90% grass coverage by 31st of May in that year.

(7) A farmer shall not permit land to be overgrazed.

(8) A farmer shall not permit the burning of heather, gorse, whin or fern between 15th April and 31st August.

6.  (1)  Paragraphs 5(3) to 5(7) do not apply:

(a)to land where these requirements conflict with the commitments under management agreements entered into by the farmer in relation to any Area of Special Scientific Interest, Special Protection Area or Special Area of Conservation;

(b)to land which is located within 5 metres from a gateway or laneway and is not a semi-natural habitat;

(c)to any archaeological site within 10 metres from waterways;

(d)to land which is located within 50 metres from any borehole or wells;

(e)to land which is located within 250 metres from a borehole which is used for a public water supply; or

(f)where overgrazing is a necessary consequence of measures taken to ensure animal welfare during periods of extreme weather conditions.

7.  (1)  Paragraphs 4(1) and (3) and paragraphs 5(1) and (2) do not apply where:

(a)soil is waterlogged only within 5 metres of a gateway or other access point and access is required to an area of land that is not waterlogged;

(b)the waterlogged soil is on an established track to land that is not waterlogged;

(c)poaching of soil is a necessary consequence of mechanical operations that are required to improve the drainage of the waterlogged soil;

(d)poaching of soil is a necessary consequence of works that are required to ensure animal or human welfare;

(e)poaching of soil is a necessary consequence of harvesting a crop of fresh vegetables or fruit to meet contractual deadlines or where such produce would deteriorate if not harvested as a matter of urgency;

(f)poaching of soil is a necessary consequence of measures taken to ensure animal welfare during periods of extreme weather conditions.

(2) The Department shall vary or suspend any of the requirements in sub paragraphs 4(1) and (3) and sub paragraphs 5(1) and (2) in relation to an area and for a period of not more than two months, where in its opinion–

(a)an area is affected by extreme weather conditions; and

(b)those weather conditions justify the variation or suspension of the requirement in this paragraph, taking into consideration the economic impact of the weather conditions and the environmental effects of any variation or suspension of the requirements.

(3) Where the Department has varied or suspended any requirements under sub paragraph (2), it shall publish directions to the farmers in the area concerned stating, with reasons, the details and duration of the variation or suspension, and the farmers shall comply with the requirement as varied in the directions.

Maintenance of soil organic matter levels

8.  (1)  A farmer shall not permit the burning of cereal straw, cereal stubble, or residues of oil-seed rape, field beans harvested dry or peas harvested dry on agricultural land unless the burning is for the purposes of disease control or the elimination of plant pests where a notice has been served under Article 32 of the Plant Health Order (Northern Ireland) 2006(12).

(2) The Department shall vary or suspend any of the requirements in sub paragraph (1) when in its opinion an area is affected by extreme weather conditions which make it impracticable to comply with them.

(3) A farmer shall not plough, cultivate or intensify (including the extraction of peat, sand or gravel) semi-natural habitats unless he has complied with the Environmental Impact Assessment (Agriculture) Regulations (Northern Ireland) 2007(13).

(4) Where the Department has varied or suspended any requirements under sub paragraph (2), it shall publish directions to the farmers in the area concerned stating, with reasons, the details and duration of the variation or suspension, and the farmers shall comply with the requirements as varied in the directions.

Retention of landscape features

9.  (1)  A farmer must prevent encroachment by invasive species.

(2) Sub paragraph (1) does not require a farmer to take any particular measure to prevent the encroachment by invasive species where taking such a measure conflicts with the management required of Areas of Special Scientific Interest, Special Protection Areas, Special Areas of Conservation, or archaeological sites.

(3) Except with the prior written approval of the Department, a farmer shall not permit the removal of any landscape feature including the infilling of any open sheugh or ditch or the laying of a drainage pipe in any open sheugh or ditch.

(4) Where a farmer has received permission from the Department to remove a landscape feature the farmer shall carry out any mitigating action in the written approval within the deadline specified therein.

(5) Sub paragraph (3) does not apply in the case of a hedgerow where there are health and safety reasons for hedgerow removal unless a Tree Preservation Order is in place in relation to that hedgerow;

(6) Sub paragraph (3) does not apply in the case of a permanently dry sheugh or ditch or a field boundary within, or marking the boundary of non-agricultural land.

(7) A farmer shall ensure that any archaeological site found on his land is retained without impairment.

(8) A farmer shall not permit the carrying out of hedge, tree or scrub cutting, trimming, or laying between 1st March and 31st August, except where this is necessary for health and safety reasons.

(9) A farmer shall ensure that no supplementary feeding site or sacrifice area is located within 10 metres of an archaeological site.

Compliance with Statutory Provisions

10.  (1)  A farmer shall comply with any stop notice served upon him under regulation 22(1) and any reinstatement notice served upon him under regulation 24(1) of the Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) Regulation (Northern Ireland) 2006(14).

Interpretation

11.  In this schedule:

"archaeological site" means a historic or archaeological site which has been identified by the Department of the Environment in the Northern Ireland Sites and Monuments Record;

"area of Special Scientific Interest" is an area of land that is of special interest by reason of its, fauna, or geological, physiographical or other features that has been declared an area of special scientific interest by the Department of the Environment pursuant to Article 28 of the Environment (Northern Ireland) Order 2002(15) or previously in accordance with Article 24 of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985(16);

"borehole" means a hole which has been drilled in land in order to provide a water supply whether or not currently used for this purpose;

"groundwater" has the meaning assigned to it by regulation 2(1) of the Groundwater (Northern Ireland) Regulations 2009;

"intensify" means to increase the productivity of land for agriculture;

"invasive species" means rhododendron, Giant Hogweed, Japanese Knotweed, Himalayan Balsam, wild oat (Avena fatua L, and Avena lodoviciana Durieu) dock (Rumex obtusifolius L and Rumex crispus L.) thistle (Cirsium vulgare (Savi) Ten and Circium arvense (L.) Scop.) and ragwort (Senecio jacobaea L.);

"landscape feature" means dry stone walls, sheughs or ditches, hedgerows, including trees in hedgerows, and earthbanks;

"mechanical operations" means field operations, for example, harvesting, manure spreading, ploughing or discing;

"overgrazing" means grazing land with livestock in such numbers as to damage the growth, quality of species composition of vegetation on that land to a significant degree;

"ploughing" means making furrows in land mechanically, by breaking and turning over the soil;

"poaching" means the prolonged trampling of waterlogged soil by animals or humans or the use of machinery or vehicles on waterlogged soil;

"sacrifice area" means a supplementary feeding site which is grazed bare by livestock;

"scrub" means areas which contain shrubs, stunted trees or brambles. Scrub may be open or dense and contain hawthorn, blackthorn, gorse (whin), bramble, honeysuckle, dog rose, bushy willows (sally) or stunted hazel with few or no mature trees present;

"semi-natural habitat" without prejudice to the generality of the expression includes an area which is not subject to an intensive farming regime, such as calcareous grassland; acid grassland; bracken; dwarf shrub heath; fen, marsh and swamp; bog; montane habitats; inland rock; neutral grassland; broadleaved, mixed and yew woodland; standing water and canals; species-rich upland or lowland hay meadow; and coastal and floodplain grazing marsh;

"sheugh or ditch" means an open channel with water in it for at least part of the year and no more than 2 metres wide at the base. Naturally flowing streams and rivers of any width are excluded as are watercourses of any width maintained by the Rivers Agency;

"Special Area of Conservation" means an area of land designated as a Special Area of conservation by the Department of the Environment pursuant to Article 4 of Council Directive 92/43/EEC on the conservation of Natural Habitats and of Wild Fauna and Flora(17);

"Special Protection Area" means an area of land classified as a Special Protection Area by the Department of the Environment pursuant to Article 4 of Directive 2009/147/EC on the conservation of wild birds(18) (the codified version of Council Directive 79/409/EEC as amended(19));

"supplementary feeding site" means any land under the control of a farmer (other than a farm building or farmyard) where concentrates, fodder or mineral licks are fed to livestock;

"tree preservation order" has the same meaning as in Article 65 of the Planning Order (Northern Ireland) 1991(20);

"Water Order" means the Water Order (Northern Ireland) Order 1999(21);

"waterlogged" means a situation when the watertable rises into the root zone of the plant and the soil is saturated with water. The soil is boggy under foot;

"waterway" has the same meaning as in Article 2(2) of the Water (Northern Ireland) Order 1999.

Regulation 8(1)

SCHEDULE 2Regulations to be revoked

The Common Agricultural Policy Single Payment and Support Schemes (Cross Compliance) Regulations (Northern Ireland) 2005(22).

The Common Agricultural Policy Single Payment and Support Schemes (Cross Compliance) (Amendment) Regulations (Northern Ireland) 2006(23).

The Common Agricultural Policy Single Payment and Support Schemes (Cross Compliance) (Amendment) Regulations (Northern Ireland) 2009(24).

The Common Agricultural Policy Single Payment and Support Schemes (Cross Compliance) (Amendment) Regulations (Northern Ireland) 2010(25).

The Common Agricultural Policy Single Payment and Support Schemes (Cross Compliance) (Amendment) Regulations (Northern Ireland) 2012(26).

The Common Agricultural Policy Single Payment and Support Schemes (Cross Compliance) (Amendment) Regulations (Northern Ireland) 2014(27).

EXPLANATORY NOTE

(This note is not part of the Regulations)

In Northern Ireland these Regulations supplement and make provision for the administration and enforcement of Regulation (EU) No. 1306/2013 (O.J. No L347, 20.12.13, p549) ("the Horizontal Regulation"), Commission Delegated Regulation (EU) No 640/2014 ("the Commission Delegated Regulation) and Commission Implementing Regulation (EU) No 809/2014 ("the Commission Implementing Regulation) in relation to cross compliance under the revised system of direct support schemes under the Common Agricultural Policy to come into force on 1st January 2015.

Cross compliance links the payment of direct aid to farmers under the Common Agricultural Policy to compliance with a range of laws and standards (see Article 91 of the Horizontal Regulation). Annex II to the Horizontal Regulation contains a list of "statutory management requirements" in areas of Community law and sets the framework for "standards for good agricultural and environmental condition of land". Under Article 94 of the Horizontal Regulation Member States must set out standards of good agricultural and environmental condition which will apply to all farmers.

The Regulations provide as follows:

Regulation 2, by reference to the Schedule sets out the standards of good agricultural and environmental condition which will apply in Northern Ireland as required under Article 94 of the Horizontal Regulation. Article 2(2) provides that farmers with agri-environment commitments which directly and necessarily conflict with the standards will not be penalised for breaching the standards. The standards in the Schedule cover the following areas-

• Establishment of buffer strips along water courses

• Irrigation authorisations

• Protection of ground water against pollution

• Minimum soil cover

• Minimum land management reflecting site specific conditions to limit erosion

• Maintenance of soil organic matter levels

• Retention of landscape features

Regulation 3 gives the Department of Agriculture and Rural Development the power to prohibit farmers from converting land under permanent pasture, and to oblige farmers to reconvert land to permanent pasture where the exercise of these powers is necessary in order for the United Kingdom to meet the requirements of Article 37 of the Delegated Regulation.

Regulation 4 makes the Department, the Department of the Environment and the Health and Safety Executive for Northern Ireland responsible for carrying out the controls on the statutory management requirements or the good agricultural and environmental condition standards set out in these Regulations.

Regulations 5 to 7 provide enforcement powers for an authorised person. These powers are in addition to any existing power of entry and are for the purpose of providing a control report, establishing a breach of cross compliance or ascertaining whether an offence under these Regulations has been or is being committed.

Regulation 8 revokes the Common Agricultural Policy Single Payment and Support Schemes (Cross Compliance) 2005 Regulations and all subsequent amendments. These provisions continue to apply in relation to a single application (within the meaning of the Common Agricultural Policy Single Payment and Support Schemes (Integrated Administration and Control Systems) Regulations 2009) as those provisions had effect before the revocation came into force.

A booklet setting out the standards in the schedule will be available on the DARD intranet at www.dardni.gov.uk. Further information and a hard copy may be obtained from local DARD direct offices.