3.—(1) Payment of less favoured area support may be made to an applicant in respect of a Scheme Year only if—
(a)subject to paragraphs (2) and (3), that applicant has given an undertaking to continue to use eligible land for a period of not less than five years from the first payment made under—
(i)these Regulations;
(ii)the 2007 Regulations; or
(iii)the 2005 Regulations; and
(b)that applicant has, in the opinion of the Scottish Ministers, met the requirements of cross compliance on the applicant’s holding throughout the Scheme Year.
(2) An applicant may be released from the undertaking referred to in paragraph (1)(a)—
(a)if the applicant has, during the period for which the undertaking was given, transferred all or part of the holding to another person and that person agrees to take over the undertaking;
(b)if the applicant has, during the period for which the undertaking was given, transferred all or part of the holding to an organisation, which in the opinion of the Scottish Ministers, has the main objective of nature conservation and where the transfer is for the principle purpose of securing a permanent change of land use into nature conservation with an associated benefit to the environment; or
(c)if, in the opinion of Scottish Ministers, the applicant is prevented from continuing to discharge that undertaking by reason of any material circumstances beyond the control of that person.
(3) In the event that the applicant has ceased farming and the person to whom all or part of the holding has been transferred does not agree to be bound by the undertaking referred to in paragraph (1)(a), the Scottish Ministers may, if satisfied that the applicant has, at the time of the cessation of farming, honoured a significant proportion of the undertaking, release the applicant from that undertaking.
4. The Scottish Ministers may, on such occasions as they consider fit, in respect of the Scheme Year in question pay less favoured area support to an applicant who actively farms eligible land which is not less than 3 hectares.
5.—(1) Eligible land comprises the number of hectares of forage area in a less favoured area with—
(a)a less favoured area support grazing category attributed to it by the Scottish Ministers prior to 1st January 2007; and
(b)one of the land use codes specified in column 2 of Schedule 2 corresponding to the entry in column 1 of Schedule 2 relating to the use of the land,
as declared by the applicant in a single application in respect of the Scheme Year to which payment relates.
(2) Eligible land includes land in respect of which the applicant has a right of use pursuant to a short term let, seasonal grazing or common grazing or other such arrangement.
(3) If an application for less favoured area support relates to land situated outwith the dairy ring fence area and all or part of that land was used for dairy activity in the Scheme Year 2009 or in the first year of application, where the applicant did not submit a single application or claim less favoured area support in or prior to 2009, the Scottish Ministers shall determine the area of ineligible land attributable to dairy activity.
(4) The ineligible area referred to in paragraph (3) shall be deducted from the eligible area identified in accordance with paragraph (1).
6.—(1) A decision by the Scottish Ministers to make a payment under regulation 4 must be in accordance with Article 82 of Commission Regulation 1122/2009.
(2) For the purposes of paragraph 6 of Article 82 of Commission Regulation 1122/2009, the Scottish Ministers must grant less favoured area support to the transferor of a holding if—
(a)the transferor has been in continuous occupation of the holding for a period of not less than 183 calendar days in the Scheme Year concerned; and
(b)the requirements of paragraphs 2 to 5 of Article 82 of Commission Regulation 1122/2009 have, in the opinion of the Scottish Ministers, been fulfilled.