Citation, commencement and extent

1. These Regulations may be cited as the Heather Moorland (Livestock Extensification) (Scotland) Regulations 1995, shall come into force on 24th April 1995 and shall apply to Scotland only.

Interpretation

2.-(1) In these Regulations, unless the context otherwise requires-

"application" means an application for aid under the scheme, made in accordance with regulation 6 and "applicant" and "apply" shall be construed accordingly;

"beneficiary" means a person or grazing committee whose application has been accepted by the Secretary of State;

"compensatory allowance" means the annual compensatory allowance in respect of sheep paid under and in accordance with the Hill Livestock (Compensatory Allowances) Regulations 1984(3), the Hill Livestock (Compensatory Allowances) Regulations 1993(4) or the Hill Livestock (Compensatory Allowances) Regulations 1994(5);

"ewe" means a female sheep which on the last preceding qualifying date for compensatory allowances is at least one year old;

"extensification obligations" means the obligations assumed by a beneficiary by virtue of the undertakings referred to in regulation 3 or 10;

"extensification period" means the period of five consecutive years from the date specified in an application as the date of entry to the scheme;

"grazings committee" means a committee appointed under section 47(1) or (3) of the Crofters (Scotland) Act 1993(6);

"heather moorland" means areas of land in which heather (calluna vulgaris) or other dwarf shrubs including bell heather (erica cinerea), cross-leaved heath (erica tetralix), crowberry (empetrum nigrum), blaeberry (vaccinium myrtillus) or bog myrtle (myrica gale), occur throughout the vegetation;

"herb rich grassland" means land used for grazing or mowing which is not normally treated with mineral fertiliser or lime and does not constitute rough grazing, but which is floristically diverse;

"holding" means all the production units farmed by an applicant or beneficiary;

"initial stocking rate" means the number of livestock units per hectare calculated at the date of application, taking account of the number of ewes and other relevant livestock on the moorland in the participating production unit or common grazing; in the case of applicants who are participating in the Sheep Pilot Extensification Scheme, the date of application means the date of application for that scheme;

"landlord" means-

"livestock unit" means-

calculated over the twelve months period immediately preceding the application;

"management plan" means a statement of the proposed regime of muirburn, supplementary feeding, and shepherding that the applicant proposes for the moorland on his production unit or common grazing taking into account the management requirements of the Schedule to these Regulations;

"modifying existing drains" means deepening or altering the course of existing ditches or culverts, recutting hill grips or altering outfalls from under drainage systems;

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

"muirburn" has the same meaning as in section 39(1)(f) of the Hill Farming Act 1946(8);

"new drains" means cutting new grips or ditches and laying new tiles or pipes;

"overgrazing" means grazing land with livestock in such numbers as adversely to affect the growth, quality or species composition of vegetation (other than vegetation normally grazed to destruction) on that land to a significant degree;

"participating production unit" means a production unit in respect of which an undertaking is given to comply with the obligations described in regulation 3 and which has been accepted into the scheme;

"production unit" means land, other than a common grazing, farmed by an applicant or beneficiary as a single unit, having regard to supplies of machinery, livestock, feeding stuffs and manpower; and which contains at least 20 hectares of heather moorland;

"qualifying date" means-

"reference flock" means, having regard to the production unit or common grazing-

whichever is the smallest;

"relevant livestock" means cattle, farmed goats, horses, ponies and farmed deer;

"scheme" means the scheme to reduce the proportion of sheep per forage area as specified in Article 2(1)(c) of Council Regulation (EEC) No.2078/92(9) on agricultural production methods compatible with the requirements of the protection of the environment and the maintenance of the countryside;

"Sheep Pilot Extensification Scheme" means the scheme established by Council Regulation (EEC) No.797/85(10) as regards the set-aside of arable land and the extensification and conversion of production as amended by Council Regulation (EEC) No.1094/88 of 25th April 1988(11) as read with Commission Regulation (EEC) No. 4115/88 of 21st December 1988 laying down detailed rules for applying said Scheme(12) and Council Regulation (EEC) No.591/89 of 6th March 1989(13);

"specified stocking rate" means 0.15 livestock units per hectare taking into account the number of ewes and other relevant livestock on the moorland on the participating production unit or common grazing; except where there is a prior written agreement with the Secretary of State to a lower figure of not less than 0.08 livestock units per hectare;

"tenant" means-

and, where appropriate, includes a sub-tenant;

"wetlands" means ground normally saturated with water for a significant proportion of the year.

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

Aid for moorland extensification

3. Subject to the provisions of these Regulations, the Secretary of State may make payments of aid under the scheme to an applicant who-

(a)undertakes, in such form as the Secretary of State reasonably may require, for the duration of the extensification period-

(i)to ensure that the stocking rate of ewes and relevant livestock on the moorland on each participating production unit or common grazing does not exceed the specified stocking rate;

(ii)to use for the purposes of grazing or forage an area of land at least equal in size to the area of land used to support the reference flock for grazing or forage during the 12 months preceding the application, except for those areas included in a conservation scheme acceptable to the Secretary of State;

(iii)to observe in relation to each participating production unit or common grazing the management requirements in the Schedule;

(iv)to manage the moorland on each participating production unit or common grazing in accordance with a management plan agreed with the Secretary of State;

(v)subject to regulation 8, to ensure that the number of ewes on his holding does not exceed the number of ewes kept there during the year used for the purpose of calculating the reference flock less the reduction in the number of ewes required to comply with paragraph (a)(i) above;

(vi)to ensure a minimum reduction of 10 ewes in the reference flock;

(vii)subject to regulation 8, to ensure that the numbers of relevant livestock (in terms of livestock units) kept on the production unit or common grazing do not exceed the numbers of them kept there during the twelve months preceding the date of application;

(b)satisfies the conditions of eligibility specified in regulation 4;

(c)has made an application in accordance with regulation 6 which has been accepted by the Secretary of State; and

(d)complies with any requirements made by the Secretary of State under that regulation.

Conditions of eligibility

4.-(1) An applicant shall be eligible to make an application if at the date of application-

(a)the applicant is either the occupier of the production unit to be entered into the scheme and has occupied that production unit for a period of at least 12 months, or subject to regulation 5, a grazings committee;

(b)compensatory allowances have been received for the reference flock in respect of 1994 and any subsequent year in respect of which such allowances may be paid; and

(c)the applicant occupies a production unit or common grazing where the initial stocking rate is at or above 0.15 livestock units per hectare on the moorland on the participating production unit.

Crofters common grazings

5.-(1) Subject to paragraph (4) below, a grazings committee shall be eligible to apply 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, provided the common grazing contains at least 20 hectares of heather moorland.

(2) All obligations undertaken by a grazings committee in applying to enter the scheme shall be binding upon all their successors in office.

(3) Subject to paragraph (4) below, payments by way of aid to a grazings committee shall be divided by them among the crofters who share in the common grazing in such proportions as may be determined by the grazings committee.

(4) A grazings committee shall give notice of their proposals under paragraph (1) and (3) above by advertisement or otherwise to the crofters ordinarily resident in the township, and sharing in the common grazing and any such crofter may within one month of the date of such notice make representation in respect of the proposals to the Crofters Commission who may approve them with or without modification or reject them.

Applications for aid

6.-(1) An application shall be made at such time and in such form as the Secretary of State reasonably may require and shall include-

(a)a map of each production unit or common grazing to be entered into the scheme;

(b)a management plan;

(c)a declaration that the applicant is entitled to farm each production unit in respect of which an application has been made for the duration of the extensification period.

(2) An applicant shall furnish to the Secretary of State such further information and evidence in relation to the application as the Secretary of State reasonably may require.

Restrictions on acceptance of applications

7.-(1) The Secretary of State shall not accept an application unless he is satisfied that, having regard to-

(a)the condition of the moorland on the applicant's production unit or common grazing at the time of the submission of the application;

(b)the management plan which has been proposed in relation to that moorland; and

(c)the right of any other person to use the production unit or common grazing for grazing;

the proposals for reduction in stocking rate will result in significant environmental benefit to the moorland on the applicant's production unit or common grazing.

(2) The Secretary of State shall not accept an application unless he is satisfied that the tenant has notified the landlord of that land in writing of his intention to make the application.

(3) The Secretary of State may refuse an application where he is satisfied that the applicant is or is likely to be, for the whole or any part of the extensification period, unable to comply with the extensification obligations.

(4) The Secretary of State shall not accept an application in respect of moorland situated in an Environmentally Sensitive Area designated under section 18 of the Agriculture Act 1986(14).

(5) The Secretary of State may refuse to accept an application where he is satisfied that-

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

(b)the payment of aid under these Regulations would duplicate any assistance previously given or to be given out of money provided by Parliament or by the European Community.

Applications to increase ewe numbers

8.-(1) A beneficiary may increase the number of ewes kept on his holding above the number required by virtue of regulation 3(a)(v) where he has permission from the Secretary of State in accordance with this regulation and the increase is in accordance with such permission.

(2) A beneficiary may apply to the Secretary of State for permission to increase the number of ewes to be kept on his holding where such increase is or would be the result of the enlargement of the beneficiary's holding during the extensification period.

(3) An application under paragraph (2) above shall be made in such form and shall contain such information as the Secretary of State reasonably may require.

(4) The Secretary of State shall not accept an application under paragraph (2) above unless he is satisfied that the proposed increase will not frustrate the fulfilment of the extensification obligations assumed by the beneficiary.

(5) Without prejudice to the generality of paragraph (4) above, the Secretary of State shall not accept an application under paragraph (2) above where the proposed increase exceeds the maximum number of ewes which were kept on the acquired land in any of the three years preceding the acquisition of that land by the beneficiary.

(6) In paragraph (5) above, "acquired land" means the land the acquisition of which has resulted or would result in the enlargement of the beneficiary's holding referred to in paragraph (2) above.

Prohibition of lease or transfer of unused quota

9.-(1) Notwithstanding regulation 9 of the Sheep Annual Premium and Suckler Cow Premium Quotas Regulations 1993(15) ("the Quotas Regulations"), a beneficiary shall not be entitled to lease or transfer any quota rights unused as a result of his participation in the scheme during the period of such participation.

(2) In this regulation the expressions "lease", "transfer" and "quota" have the same meanings as in the Quotas Regulations.

Change of occupation

10.-(1) Where there is a change of occupation, during the extensification period, of the whole or any part of a beneficiary's holding-

(a)the beneficiary (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 of occupation in such form and within such period as the Secretary of State reasonably may determine;

(b)subject to the provisions of this regulation, the new occupier of that holding or part may give an undertaking in writing to the Secretary of State to comply, for the remainder of the extensification period, with the extensification obligations assumed by the original occupier relating to that holding or part.

(2) Where there is a change of occupation of part of a holding the Secretary of State shall determine the extent to which the extensification obligations assumed by the original occupier relate to that part.

(3) A new occupier who gives an undertaking to comply with the extensification obligations assumed by the original occupier shall supply to the Secretary of State such information in such form and within such period following the change of occupation as the Secretary of State reasonably may determine.

(4) Where the Secretary of State has accepted an undertaking from a new occupier to comply with the extensification obligations undertaken by the original occupier-

(a)the new occupier shall be deemed to be a beneficiary; and

(b)his undertaking to comply with those extensification obligations shall be deemed to take effect on the date of the acceptance by the Secretary of State of that undertaking.

(5) Where within three months from the date of change of occupation a new occupier has not given an undertaking to comply with the extensification obligations assumed by the original occupier, the Secretary of State may-

(a)withhold the whole or any part of any payments of aid under the scheme due to the original occupier; and

(b)recover from that original occupier or his executors the whole or any part of any payments of aid under the scheme already made to him.

(6) Paragraph (5) above shall not apply where the change of occupation of a holding or part of a holding is the result of-

(a)the compulsory purchase of that holding or part; or

(b)the compulsory purchase of part of a holding and the beneficiary continues to comply with his extensification obligations, as adjusted in accordance with paragraph (7) below, in respect of the remaining part of the holding;

(c)the death of the original occupier, and-

(i)that original occupier occupied that holding or part as a tenant; and

(ii)following the death of that original occupier the tenancy or lease under which he occupied that holding or part was terminated by the landlord under sections 11(6) or 12(3) of the Agricultural Holdings (Scotland) Act 1991;

(d)resumption by the landlord under section 21(7)(a) of the Agricultural Holdings (Scotland) Act 1991;

(e)the termination of a tenancy following the operation of a notice to quit to which the Land Court has consented under section 22(1) of the Agricultural Holdings (Scotland) Act 1991 having been satisfied as to any of the matters specified in section 24(1) of that Act, or the termination of a tenancy following the service of a notice to quit under the provisions of section 22(2)(b) of that Act;

(f)the resumption of the croft or part thereof which the Land Court has authorised as being for a reasonable purpose in terms of section 20 of the Crofters (Scotland) Act 1993; or

(g)the resumption of a small landholding or part thereof which the Land Court has authorised as being for a reasonable purpose in terms of section 2 of the Crofters Holdings (Scotland) Act 1886(16).

(7) Where all or part of the land which has been compulsorily purchased was used for grazing or forage on a participating production unit, the area so used shall be subtracted from the total area required to be used for the purposes of grazing or forage by the beneficiary and the stocking rate adjusted accordingly.

(8) For the purposes of this regulation-

(a)in its application 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 scheme but does not include a change in the membership of the grazings committee;

(b)in relation to any change of occupation "original occupier" means the occupier immediately before such change.

Amounts of aid and claims

11.-(1) Subject to regulations 5(3), 10(5) and 13(2), payment of aid to a beneficiary shall be by way of five payments made annually, in arrear.

(2) The amount of each such payment shall be £25 multiplied by the figure calculated in accordance with paragraph (3) below.

(3) The figure referred to in paragraph (2) above is the number equal to the difference between the reference flock and the greatest number of ewes which may be kept on the beneficiary's production unit or common grazing without the beneficiary failing to comply with the undertaking in regulation 3(a)(i).

(4) The rate of payment specified in paragraph (2) above may be reviewed by the Secretary of State from time to time.

(5) A claim for each annual payment under paragraph (1) above shall be made at such time and in such form and shall contain such information as the Secretary of State reasonably may require.

Obligation to permit entry and inspection

12.-(1) An applicant or beneficiary 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 times and on production on demand of some duly authenticated document showing his authority to enter upon the holding or common grazing for the purpose of-

(a)carrying out any inspection of such holding or common grazing or any document or record in the possession or under the control of the applicant or beneficiary relating to, or which the authorised person may reasonably suspect relates to, an application, with a view to verifying the accuracy of any particulars given in an application or claim under regulation 11(5) or in any undertaking made by a new occupier pursuant to regulation 10(1)(b); and

(b)ascertaining whether the applicant or beneficiary has duly complied with any undertaking given by him under these Regulations.

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

(a)produce such document or record as may be required by that officer 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 is concerned in any application or in any undertaking given by a new occupier under regulation 10 to comply with the obligations undertaken by the original beneficiary.

Withholding and recovery of aid and termination of undertaking

13.-(1) Where any person with a view to obtaining the payment of aid under the scheme to himself or any other person, makes any statement or furnishes any information which is false or misleading in a material respect, the Secretary of State may withhold the whole or part of any aid under the scheme payable to that person or to such other person, and may recover the whole or any part of any such aid already paid to that person or to such other person.

(2) Where a beneficiary-

(a)fails without reasonable excuse to comply with any of his obligations under these Regulations; or

(b)fails without reasonable excuse to permit entry or inspection by an authorised person or to render all reasonable assistance to such authorised person as required by regulation 12;

the Secretary of State may withhold the whole or any part of any aid under the scheme payable to that beneficiary, and may recover the whole or any part of any such aid already paid to him.

(3) In addition to withholding or recovering aid under paragraph (1) or (2) above, the Secretary of State may treat as terminated the undertakings given by the beneficiary under these Regulations.

(4) Before withholding or recovering any aid under regulation 10(5), or paragraphs (1) and (2) above, the Secretary of State shall-

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

(b)afford the beneficiary 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 beneficiary.

False statements

14. If any person, for the purposes of obtaining for himself or any other person any aid under the scheme, knowingly or recklessly furnishes information which is false or misleading in a material particular, that person shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.

Regulation 3(a)(iii)

SCHEDULEMANAGEMENT REQUIREMENTS

1. As regards all moorland comprised in a participating production unit or common grazing-

(a)the beneficiary shall not apply herbicides, pesticides, lime or fertiliser (including farmyard manure and slurry) to the moorland except to control bracken, spear thistle, creeping or field thistle, curled dock, broadleaved dock, ragwort, or to carry out stump treatment. With the prior written consent of the Secretary of State other plants may be controlled. Herbicides used for these purposes shall be applied by means of weed wiper or spot treatment, hand spraying, tractor mounted sprayers or, with the prior written consent of the Secretary of State, by other methods;

(b)the beneficiary shall avoid damaging the rough grazings by installing new drains, modifying existing drains, ploughing, levelling, re-seeding, chain-harrowing, rolling or otherwise cultivating the land;

(c)the beneficiary shall not damage, destroy or remove native or semi-natural woodland, stockproof walls, traditional weatherproof farm buildings, features of historical or archaeological interest or value.

2. As regards other land comprised in a participating production unit or common grazing-

(a)the beneficiary shall not damage, destroy or remove stockproof walls, hedges, traditional weatherproof farm buildings, features of historical or archaeological interest or value, lochs, ponds, streams or other watercourses;

(b)the beneficiary shall not damage or destroy any areas of herb rich grassland, wetlands, native or semi-natural woodland, field and hedgerow trees, or other areas of high conservation value. The beneficiary may, however, apply herbicides to control bracken, spear thistle, creeping or field thistle, curled dock, broadleaved dock, or ragwort but herbicides used for these purposes shall be applied by means of weed wiper or spot treatment, hand spraying, tractor mounted sprayers or, with the prior written consent of the Secretary of State, by other methods and other plants may also be controlled with the prior written consent of the Secretary of State;

(c)the beneficiary shall not graze any land with livestock in such numbers as to adversely affect to a significant degree, the growth, quality or species composition natural or semi-natural vegetation on that land.

Explanatory Note

(This note is not part of the Regulations)

These Regulations apply to Scotland and make provision for the payment of aid to farmers who undertake to reduce the proportion of sheep per forage area pursuant to Article 2(1)(c) of Council Regulation (EEC) No. 2078/92 (OJ No. L 215, 30.7.92, p.85) on agricultural methods compatible with the requirements of the protection of the environment and the maintenance of the countryside ("the Agri-environmental Regulation").

The Regulations-

(a)define the "specified stocking rate" which a sheep farmer or grazing committee have to meet on their heather moorland so as to be eligible for aid, and also define "heather moorland" and "relevant livestock" (regulation 2(1));

(b)enable the Secretary of State to make payments of aid to applicants satisfying the conditions of and applying in accordance with the Regulations (regulation 3);

(c)specify the conditions of eligibility to be satisfied by applicants for aid (regulation 4);

(d)specify the conditions for the participation of crofters common grazings committees (regulation 5);

(e)specify the requirements in relation to applications for aid and the documents to accompany such applications (regulation 6);

(f)specify restrictions on the acceptance of applications by the Secretary of State (regulation 7);

(g)make provision for an increase in ewe numbers kept on a holding (regulation 8);

(h)make provision prohibiting transfer or lease of unused quota by participants in the scheme. Producers who give undertakings under the Regulations will be participating in an extensification programme in accordance with the measure referred to in Article 2(1)(c) of the Agri-environmental Regulation. Accordingly the provision of Article 7(4) of Commission Regulation (EEC) No.3567/92 (OJ No.L362, 11.12.92, p.41) as amended by Commission Regulation (EC) No.1720/94, OJ No.L181, 15.7.94, p.6) laying down detailed rules for the application of the individual limits, national reserves and transfer of rights in the sheepmeat and goat-meat sector, will apply. Such producers will not be permitted to transfer or lease any quota released as a result of their participation in the scheme for the duration of their participation in the scheme (regulation 9);

(i)make provision for payment of aid to a new occupant where there has been a change in the occupation of the whole or part of a holding due to the death of a beneficiary or otherwise (regulation 10);

(j)specify the amounts, period and method of payment of aid (regulation 11);

(k)require an applicant or beneficiary to permit an authorised person to enter premises and inspect premises, documents and records and to give reasonable assistance to the authorised person (regulation 12);

(l)specify circumstances when the Secretary of State may withhold aid or recover payments already made (regulation 13); and

(m)create offences and prescribe penalties (regulation 14).