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The Organic Aid (Scotland) Regulations 2004

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Change of occupation

16.—(1) Where there is a change of occupation, during the specified conversion period or the specified maintenance period, as the case may be, of the whole or part of a farm or part of a farm in respect of which an undertaking has been given under these Regulations–

(a)the former occupier (or, if the former occupier has died, the former occupier’s executors) shall within 3 months notify the Scottish Ministers in writing of the change of occupation, and shall supply to the Scottish Ministers such information relating to that change of occupation in such form and within such period as the Scottish Ministers reasonably may require;

(b)subject to the provisions of this regulation, the new occupier of the farm or part of a farm may give an undertaking to the Scottish Ministers to comply, for the remainder of the specified conversion period or specified maintenance period, as the case may, with the obligations assumed by the former occupier under an undertaking relating to that farm or part of a farm; and

(c)subject to the provisions of this regulation, the Scottish Ministers shall accept an undertaking from the new occupier.

(2) Where occupation of the farm or part of a farm in respect of which an undertaking has been given under these Regulations is divided, the Scottish Ministers shall determine the extent to which the obligations in the undertaking relate to any part, having regard to–

(a)the area of land comprised in that part and in the remainder of the original farm or part of a farm; and

(b)the use to which that part is put.

(3) The Scottish Ministers shall not accept an undertaking from a new occupier of a farm or part of a farm to comply with the obligations assumed by the former occupier unless they are satisfied that–

(a)the new occupier occupies the farm or part of a farm as an owner or tenant, or as the executor of the former occupier;

(b)the former occupier has complied with the undertaking to the date of the change of occupation; and

(c)the new occupier has since the date of the change of occupation complied with the undertaking.

(4) The Scottish Ministers shall not accept an undertaking from a new occupier of a farm or part of a farm–

(a)unless–

(i)the new occupier complies with the conditions in regulation 5(1)(a), (c) and (d) and the farm or part of a farm complies with regulation 5(2)(e) in the case of a conversion grant or a capital grant; and

(ii)the new occupier complies with the conditions in regulation 8(1)(a) and (c) to (e) in the case of a maintenance grant;

(b)from a new occupier who occupies the farm or part of a farm as a tenant unless the Scottish Ministers are satisfied that the new occupier has notified the landlord, and in the case of a sub-tenant, the owner of the land and the mid-landlord, in writing that he intends to give the undertaking; or

(c)where payment of grant under these Regulations would duplicate any assistance previously given or to be given out of money provided by or under any statutory provision or by the European Community.

(5) A new occupier who wishes to undertake the obligations assumed by the former occupier or who gives an undertaking to comply with the obligations assumed by the former occupier shall–

(a)undertake to farm the new occupier’s holding in accordance with the obligations set out in Schedule 4 for the remainder of the specified conversion period or specified maintenance period as the case may be; and

(b)supply to the Scottish Ministers such information in such form and within such period following the change of occupation as the Scottish Ministers reasonably may require.

(6) Where the Scottish Ministers have accepted an undertaking from a new occupier to comply with the obligations assumed by the former occupier that undertaking to comply with the obligations assumed by the former occupier shall be deemed to take effect on the date of the acceptance by the Scottish Ministers of that undertaking.

(7) Where within 3 months from the date of change of occupation a new occupier has not given an undertaking to comply with the obligations assumed by the former occupier, the Scottish Ministers may–

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

(b)recover from the former occupier or make a claim in the former occupier’s executry for the whole or any part of any payment awarded under these Regulations and already made to the former occupier in respect of the undertaking.

(8) Paragraph (7) shall not apply where the change of occupation of a farm or part of a farm is the result of–

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

(b)the death of the former occupier and–

(i)that former occupier occupied that farm or part as a tenant; and

(ii)following the death of that former occupier the tenancy or lease under which the former occupier occupied that farm or part of a farm was terminated by the landlord under sections 11(6) or 12(3) of the 1991 Act or sections 21(2) or 22(2) of the 2003 Act;

(c)resumption by the landlord under section 21(7)(a) of the 1991 Act or section 17(1) of the 2003 Act;

(d)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 1991 Act 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;

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

(f)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(1);

provided that the former occupier or the former occupier’s executor, as the case may be, notifies the Scottish Ministers in writing of the reason for the change of occupation within 10 working days of the date on which the former occupier or the former occupier’s executor is in a position to do so and provided that, if the Scottish Ministers so request, the former occupier or the former occupier’s executor, as the case may be, supplies the Scottish Ministers with relevant evidence of the reason for the change of occupation to the reasonable satisfaction of the Scottish Ministers.

(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 specified conversion period or the specified maintenance period, as the case may be, but does not include a change in the membership of the grazings committee.

(10) The provisions of this regulation are, in so far as the grants paid under these Regulations include aid under Regulation 1257/99, subject to Article 30 (transfer of holding) and Article 33 (force majeure) of the Commission Regulation and where by virtue of Article 30 a beneficiary is required to reimburse, in accordance with Article 62a(2) (recovery of undue payments) of the Commission Regulation and Article 49 (recovery of undue payments) of Regulation 2419/2001, the grant paid, the rate of interest shall be that provided in regulation 21(1).

(11) Where–

(a)there has been a change of occupation of the whole or part of a farm or part of a farm to which an undertaking under these Regulations relates;

(b)the new occupier has, within 3 months of the date of change of occupation, undertaken to comply with the obligations of the former occupier; and

(c)the Scottish Ministers have accepted that undertaking of the new occupier,

the former occupier shall be released from the former occupier’s undertaking except in respect of any breach or other matter occurring before the acceptance by the Scottish Ministers of the new occupier’s undertaking.

(1)

1886 c. 29; section 2 is to be read with the Small Landholders (Scotland) Act 1911 (c. 49), section 19, and the Small Landholders and Agricultural Holdings (Scotland) Act 1931 (c. 44), section 8(1).

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