The Rural Development Contracts (Rural Priorities) (Scotland) Regulations 2008

Citation, commencement and extent S

1.—(1) These Regulations may be cited as the Rural Development Contracts (Rural Priorities) (Scotland) Regulations 2008 and come into force on 29th March 2008.

(2) These Regulations extend to Scotland only.

Interpretation S

2.—(1) In these Regulations–

“1911 Act” means the Small Landholders (Scotland) Act 1911 M1 ;

“1991 Act” means the Agricultural Holdings (Scotland) Act 1991 M2 ;

“1993 Act” means the Crofters (Scotland) Act 1993 M3 ;

“2003 Act” means the Agricultural Holdings (Scotland) Act 2003 M4 ;

“activities” means the activities referred to in regulation 9(1) and columns 2 and 3 of Schedule 2, and “activity” is construed accordingly;

“applicant” means a person who has submitted an application for aid pursuant to regulation 3, the result of which is still pending;

“application for aid” means an application for aid under these Regulations, and “application” is construed accordingly;

“approved proposal” means a proposal for the receipt of aid which the Scottish Ministers have approved under these Regulations for the payment of aid, and “approve” and “approval” are construed accordingly;

[F1 “area related options” means those rural priorities options numbered 15 to 57, 60 and 61 and 74 to [F2 78] in Schedule 2;]

“authorised person” means a person who is authorised by the Scottish Ministers under regulation 14, either generally or specifically, to act in relation to matters arising under these Regulations;

“beneficiary” means–

(a)

a person whose application for aid has been approved by the Scottish Ministers; or

(b)

a person who takes on an undertaking on a change of occupation as provided in regulation 13;

“capital items” means the capital items referred to in regulation 9 and column 1 of Schedule 3 and any specific capital items referred to in any rural priorities options and includes the outcome plan in regulation 5, and “capital item” is construed accordingly;

“Commission Regulation 796/2004” means Commission Regulation (EC) No. 796/2004 laying down detailed rules for the implementation of cross compliance, modulation and the integrated administration and control system provided for in F3 ... [F4 Council Regulation 73/2009] establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers M5 ;

“Commission Regulation 1974/2006” means Commission Regulation (EC) No. 1974/2006, as amended by Commission Regulations (EC) No. 434/2007 M6 and (EC) 1236/2007 M7 laying down detailed rules for the application of Council Regulation (EC) No. 1698/2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) M8 ;

“Commission Regulation 1975/2006” means Commission Regulation (EC) No. 1975/2006 M9 as corrected by Commission Regulation (EC) No. 1396/2007 M10 laying down detailed rules for the implementation of Council Regulation (EC) No. 1698/2005, as regards the implementation of control procedures as well as cross compliance in respect of rural development support measures;

“compliance requirements” means the compliance requirements specified in regulation 9(5);

F5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“Council Regulation 1698/2005” means Council Regulation (EC) No. 1698/2005 M11 , as amended by Council Regulations (EC) No. 1944/2006 M12 and (EC) No. 2012/2006 M13 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD);

[F6 “Council Regulation 73/2009” means Council Regulation (EC) 73/2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No. 1290/2005, (EC) No. 247/2006, (EC) No. 378/2007 and repealing Regulation (EC) No. 1782/2003]

“Crofters Commission” means the Crofters Commission established under section 1 of the Crofters (Scotland) Act 1955 M14 ;

“eligible land” means land which is eligible in accordance with regulation 7 as read with any relevant specific requirements under the particular rural priorities options;

“grazings committee” means a committee appointed under section 47(1) or (3) of the 1993 Act and includes a grazing constable;

“holding” means all the production units managed by a farmer that are situated within Scotland;

“IACS Regulations” means the Common Agricultural Policy Single Payment and Support Schemes (Integrated Administration and Control System) Regulations 2005 M15 ;

“IACS year” has the meaning given to it in regulation 2(1) of the IACS Regulations;

“landlord” means–

(a)

in the case of an agricultural lease constituting a 1991 Act tenancy within the meaning of the 2003 Act, the landlord within the meaning of section 85 of the 1991 Act;

(b)

in the case of a lease constituting a limited duration tenancy or short limited duration tenancy under the 2003 Act, the landlord within the meaning of section 93 of that Act;

(c)

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

(d)

in the case of a holding within the meaning of the 1911 Act to which the 1991 Act does not apply, the same as it means in the 1911 Act,

and, where appropriate, includes a head tenant;

“programme guidance” means the guidance published by the Scottish Ministers from time to time under regulation 21 M16 ;

“regional priorities” means those descriptions of those national policy outcomes which have been identified as regionally important as outlined in the programme guidance;

“relevant period” means the period of the undertaking as determined under regulation 9(2) and the relevant period may be different for each different undertaking;

“rural priorities options” means the options set out in Schedule 2;

“single application” has the meaning given to it in Article 2(11) of Commission Regulation 796/2004;

“tenant” means–

(a)

in the case of an agricultural lease constituting a 1991 Act tenancy within the meaning of the 2003 Act, the tenant within the meaning of section 85 of the 1991 Act;

(b)

in the case of a lease constituting a limited duration tenancy or short limited duration tenancy under the 2003 Act, the tenant within the meaning of section 93 of that Act;

(c)

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

(d)

in the case of a holding within the meaning of the 1911 Act to which the 1991 Act does not apply, the landholder within the meaning of section 2(2) of the 1911 Act,

and, where appropriate, includes a sub tenant; and

“undertaking” means an undertaking or undertakings in writing given by a beneficiary in accordance with regulation 9.

(2) A reference in these Regulations to anything done in writing or produced in written form includes a reference to an electronic communication, as defined in section 15 of the Electronic Communications Act 2000 M17 which has been recorded and is consequently capable of being reproduced.

(3) Unless the context otherwise requires, any reference in these Regulations to a numbered regulation or numbered Schedule will be construed as a reference to the regulation or Schedule so numbered in these Regulations.

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

(5) Words and phrases used in Schedules 2 to 4 and not defined in paragraph (1) or in the particular Schedule will be construed in accordance with Schedule 1.

Textual Amendments

F1 Words in reg. 2 substituted (28.6.2008) by The Rural Development Contracts (Rural Priorities) (Scotland) Amendment Regulations 2008 (S.S.I. 2008/233), regs. 1, 3

F2 Word in reg. 2 substituted (18.12.2009) by The Rural Development Contracts (Rural Priorities) (Scotland) Amendment (No. 4) Regulations 2009 (S.S.I. 2009/411), regs. 1, 3

F3 Words in reg. 2 omitted (7.11.2009) by virtue of The Rural Development Contracts (Rural Priorities) (Scotland) Amendment (No. 3) Regulations 2009 (S.S.I. 2009/335), regs. 1, 3(a)

F4 Words in reg. 2 inserted (7.11.2009) by The Rural Development Contracts (Rural Priorities) (Scotland) Amendment (No. 3) Regulations 2009 (S.S.I. 2009/335), regs. 1, 3(a)

F5 Words in reg. 2 omitted (7.11.2009) by virtue of The Rural Development Contracts (Rural Priorities) (Scotland) Amendment (No. 3) Regulations 2009 (S.S.I. 2009/335), regs. 1, 3(b)

F6 Words in reg. 2 inserted (7.11.2009) by The Rural Development Contracts (Rural Priorities) (Scotland) Amendment (No. 3) Regulations 2009 (S.S.I. 2009/335), regs. 1, 3(b)

Marginal Citations

M1 1911 c. 49.

M2 1991 c. 55.

M3 1993 c. 44.

M4 2003 asp 11.

M5 O.J. No. L 141, 30.4.2004, p.18 as last relevantly amended by Commission Regulation (EC) No. 1550/2007 (O.J. No. L 337, 21.12.2007, p.79).

M6 O.J. No. L 104, 21.4.2007, p.8.

M7 O.J. No. L 280, 24.10.2007, p.3.

M8 O.J. L 368, 23.12.2006, p.15.

M9 O.J. No. L 368, 23.12.2006, p.74.

M10 O.J. No. L 311, 29.11.2007, p.3.

M11 O.J. No. L 277, 21.20.2005, p.1.

M12 O.J. No. L 367, 22.12.2006, p.23.

M13 O.J. No. L 384, 29.12.2006, p.8.

M14 1955 c. 21 repealed by the Crofters (Scotland) Act 1993 (c. 4) which continued in existence the Crofters Commission.

M15 S.I. 2005/218.

M16 The programme guidance is available online at www.scotland.gov.uk or from Scottish Government Rural Directorate, Pentland House, Robb's Loan, Edinburgh, EH14 1TY.

M17 2000 c. 7 as amended by paragraph 158 of Schedule 17 to the Communications Act 2003 (c. 21).

Application for aid S

3.—(1) Subject to paragraph (5), an application for aid must be submitted in writing for approval to such authority and in such form and manner as the Scottish Ministers may reasonably require.

(2) An application for aid by a grazings committee must include–

(a) the written consent of a majority of the crofters ordinarily resident in the township and sharing in the common grazing which is the subject of the proposal;

(b) evidence that notice has been given in accordance with regulation 6(4); and

(c) confirmation from the Crofters Commission that it has approved the proposal or, as the case may be, has received no representation under regulation 6(5).

(3) The Scottish Ministers may at any time suspend the operation of the programme provided for by these Regulations and, while so suspended, no application for aid under paragraph (1) may be submitted to them.

(4) An applicant may submit more than one application under this regulation.

(5) The application for aid must include an undertaking.

(6) Where such undertaking specifies activities under area related options, the applicant must be either–

(a) the owner of the eligible land; and

(i) in lawful actual occupation of that land; or

(ii) have undertaken jointly with any tenant to assume the obligations under their activities or an undertaking (regulation 13 applying in the case where the tenant's tenancy has ended); or

(b) the tenant of the eligible land who is in lawful actual occupation of that land–

(i) under a lease which will run until the end of the relevant period of the undertaking;

(ii) under a lease with security of tenure by virtue of any statutory provision until the end of that period; or

(iii) in the case where neither (i) nor (ii) applies where the tenant has jointly with the landlord given the undertaking until the end of that period (in which case regulation 13 shall apply);

(7) Where there is more than one relevant period in relation to an undertaking or undertakings the longer of the relevant periods is deemed to be the relevant period for the purposes of paragraph (6).

(8) An applicant must provide any information and evidence the Scottish Ministers reasonably require in order to consider the application.

Payment of aid S

4.—(1) Subject to the provisions of these Regulations, the Scottish Ministers may make payment of aid to a beneficiary who has given an undertaking.

(2) Where such undertaking includes activities or capital items under area related options, the Scottish Ministers may make payment of aid to a beneficiary who is the owner or tenant of the eligible land to which the undertaking relates and is in lawful occupation of that land or, in the case of an owner, has jointly with the tenant, given such undertaking.

(3) Payment of aid shall be made subject to the condition that the beneficiary complies with the undertaking.

Outcome plans S

5.—(1) An application for aid may include an outcome plan which must be in writing, in such form and contain such information as the Scottish Ministers may reasonably require.

(2) Subject to paragraph (4), the Scottish Ministers may contribute towards the costs of an outcome plan at the rate of 50% of the total cost subject to a maximum payment of £200 per applicant.

(3) Where the Scottish Ministers approve, an applicant may submit an outcome plan which has been prepared by a specialist or following specialist advice.

(4) The Scottish Ministers may contribute towards the cost of an outcome plan approved under paragraph (3) at the rate of 50% of the total cost subject to a maximum payment of £400 per applicant.

Crofters common grazings S

6.—(1) Subject to paragraph (4), a grazings committee may, with the consent of a majority of the crofters ordinarily resident in the township and sharing in the common grazing, submit an application for aid in relation to that common grazing.

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

(3) Subject to paragraph (4), payments of aid to a grazings committee must be made to the clerk of the grazings committee and the clerk shall–

(a) divide the aid among the eligible crofters in such proportion as determined by the grazings committee; or

(b) reimburse the aid accordingly.

(4) Prior to submitting an application for aid a grazings committee must give notice of their intention to do so and of their proposed division of the aid or reimbursement under paragraph (3), by serving notice in writing of the proposed application and the proposed division of aid or reimbursement on all crofters sharing in that 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 representations in respect of the proposed application and the proposed division of aid or reimbursement to the Crofters Commission who may approve the proposed application and the proposed division of aid or reimbursement with or without modification, or reject them.

(6) Where the Crofters Commission receives representations under paragraph (5) in respect of a proposed application the grazings committee will only be entitled to submit the proposed application, incorporating any modification made by the Crofters Commission, approved by the Crofters Commission under paragraph (5).

(7) Where an undertaking is given by a grazings committee, the actings in relation to the relevant common grazing or part of the common grazing of any crofter with a share in that common grazing or part, and any breach of the undertaking by such a crofter, will be deemed to be the actings of, or a breach by, the grazings committee for the purposes of these Regulations.

Eligible land S

7.—(1) Where an undertaking includes activities and capital items under area related options, land is eligible to have such activities or capital items carried out on it if it is land in Scotland declared in the single application and–

(a) the land is–

(i) comprised in an agricultural parcel in accordance with [F7 Article 19 of Council Regulation 73/2009] and Article 12(1)(d) of Commission Regulation 796/2004 and given a unique identification number compatible with the identification system for agricultural parcels referred to in [F8 Article 17 of Council Regulation 73/2009]; or

(ii) approved for that purpose and given a unique identification number compatible with the identification system for agricultural parcels referred to in [F9 Article 17 of Council Regulation 73/2009] by the Scottish Ministers; and

(b) compliant with any particular eligibility or site requirements specified in column 2 of Schedule 2 in relation to the particular activity under the relevant area related option.

(2) In declaring the land in the application for aid under paragraph (1), the applicant must use the unique identification number for each reference parcel of land under or compatible with the identification system for agricultural parcels referred to in [F10 Article 17 of Council Regulation 73/2009] and Article 6 of Commission Regulation 796/2004 where that number exists at the date of the application.

Textual Amendments

F7 Words in reg. 7(1)(a)(i) substituted (7.11.2009) by virtue of The Rural Development Contracts (Rural Priorities) (Scotland) Amendment (No. 3) Regulations 2009 (S.S.I. 2009/335), regs. 1, 4(a)

F8 Words in reg. 7(1)(a)(i) substituted (7.11.2009) by The Rural Development Contracts (Rural Priorities) (Scotland) Amendment (No. 3) Regulations 2009 (S.S.I. 2009/335), regs. 1, 4(b)

F9 Words in reg. 7(1)(a)(ii) substituted (7.11.2009) by The Rural Development Contracts (Rural Priorities) (Scotland) Amendment (No. 3) Regulations 2009 (S.S.I. 2009/335), regs. 1, 4(b)

F10 Words in reg. 7(2) substituted (7.11.2009) by The Rural Development Contracts (Rural Priorities) (Scotland) Amendment (No. 3) Regulations 2009 (S.S.I. 2009/335), regs. 1, 4(b)

Determination of applications for aid S

8.—(1) The Scottish Ministers may approve (in whole or in part) or may reject an application for aid and in determining whether an application should be so approved or rejected, they must have regard to–

(a) the extent to which the application–

(i) meets regional priorities; and

(ii) is feasible and economically viable;

(b) the aid likely to be required and how that value compares with other applications; and

(c) the value for money which the application represents having regard to sub-paragraphs (a) and (b).

(2) Approval of an application for aid may be subject to such conditions as the Scottish Ministers think fit.

(3) The Scottish Ministers must notify the applicant in writing of their decision in respect of the application and notify the applicant whose application has been approved under this paragraph of any conditions relating to such approval which they have imposed under paragraph (2) above.

(4) The Scottish Ministers may vary an approval of an application as they think fit including any conditions subject to which it was given.

(5) Before varying an approval or conditions attached to an approval in accordance with paragraph (4), the Scottish Ministers must–

(a) give to the beneficiary written notification of the variation or amendment proposed;

(b) give the beneficiary an opportunity to make representations about the proposed variation within such time and in such form as the Scottish Ministers may require; and

(c) consider any such representations.

(6) Before approving an application, the Scottish Ministers may consult such persons as they consider appropriate.

Undertakings S

9.—(1) A beneficiary must give the Scottish Ministers an undertaking to carry out, or as the case may be, to carry out and maintain at least one of the activities set out in column 2 of Schedule 2 in accordance with the eligibility conditions and requirements set out in the paragraph which begins that Schedule and that column and, as the case may be, column 3 of that Schedule in relation to that activity unless an activity must be undertaken in conjunction with another activity under either the same or a different rural priorities option as set out in Schedule 2.

(2) Each undertaking given must be for a period as determined by the Scottish Ministers (“the relevant period”) and in the case of an undertaking to carry out activities under area related options the relevant period must be not less than 5 years.

(3) More than one relevant period may apply in relation to different undertakings or activities to be carried out or carried out and maintained in terms of an undertaking.

(4) The date of commencement of each undertaking and such activity shall be determined by the Scottish Ministers.

(5) Where an undertaking given under paragraph (1) specifies an activity or activities under any of the rural priorities options numbered 15 to 57 [F11 and 74 to 77] the beneficiary must also undertake, in relation to the whole of the beneficiary's holding, to comply with the following compliance requirements–

(a) the statutory management requirements established by [F12 Article 5 of and Annex II to Council Regulation 73/2009] as amended from time to time;

(b) the good agricultural and environmental conditions specified in regulation 4 of and the Schedule to the Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2004 M18 ;

(c) the historic environment condition specified in Part 1 of Schedule 4 to these Regulations;

(d) the requirements applicable under the enactments specified in Part 2 of Schedule 4 to these Regulations.

(6) Where an undertaking given under paragraph (1) specifies an activity or activities under [F13 any of] the rural priorities options, the Woodland creation option numbered 60, or the Sustainable management of forests and woodlands option numbered 61 [F14 or the controlled livestock grazing of woodland option numbered 78] and no activity or activities under any of the rural priorities options numbered 15 to 57 [F15 and 74 to 77] are specified in such undertaking the beneficiary must also undertake, in relation to the whole of the beneficiary's holding to comply with the compliance requirements in paragraph (5)(a) and (b).

(7) Where an undertaking given under paragraph (1) specifies an activity or activities under area related options the beneficiary may also undertake to carry out one or more of the capital items set out in column 1 of Schedule 3.

(8) A beneficiary must give the Scottish Ministers any other such undertakings as the Scottish Ministers consider appropriate for the purposes of these Regulations.

Textual Amendments

F11 Words in reg. 9(5) inserted (28.6.2008) by The Rural Development Contracts (Rural Priorities) (Scotland) Amendment Regulations 2008 (S.S.I. 2008/233), regs. 1, 4

F12 Words in reg. 9(5)(a) substituted (7.11.2009) by The Rural Development Contracts (Rural Priorities) (Scotland) Amendment (No. 3) Regulations 2009 (S.S.I. 2009/335), regs. 1, 5

F13 Words in reg. 9(6) substituted (18.12.2009) by The Rural Development Contracts (Rural Priorities) (Scotland) Amendment (No. 4) Regulations 2009 (S.S.I. 2009/411), regs. 1, 4(a)

F14 Words in reg. 9(6) inserted (18.12.2009) by The Rural Development Contracts (Rural Priorities) (Scotland) Amendment (No. 4) Regulations 2009 (S.S.I. 2009/411), regs. 1, 4(b)

F15 Words in reg. 9(6) inserted (28.6.2008) by The Rural Development Contracts (Rural Priorities) (Scotland) Amendment Regulations 2008 (S.S.I. 2008/233), regs. 1, 4

Marginal Citations

M18 S.S.I. 2004/518 as amended by S.S.I. 2005/143 and 2007/99.

Restrictions on approval of applications and payment of aid S

10.—(1) The Scottish Ministers must not approve an application for aid in relation to any eligible land which is occupied by a tenant unless they are satisfied that the tenant has notified the landlord, and in the case of a sub tenant, the owner of the eligible land and the head tenant, of the intention of that tenant to submit an application for aid.

(2) The Scottish Ministers must not pay aid–

(a) if they are satisfied that the use of the land in accordance with the proposals contained in an application for aid would frustrate the purposes of any assistance previously given or to be given out of money provided by or under any statutory provision or by the European Community;

(b) if they are satisfied that any payment 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;

(c) where the beneficiary is excluded from support under Council Regulation (EC) No. 1257/1999 M19 or Council Regulation 1698/2005 by application of a penalty consequent upon Articles 18, 23 or 31 of Commission Regulation 1975/2006.

(3) For the purposes of paragraph (2)(b), a sum duplicates such assistance if it is, or would be, paid for any of the same purposes.

Marginal Citations

M19 O.J. No. 160, 26.06.1999, p.80 as last amended by Council Regulation (EC) No. 1698/2005 (O.J. No. L 277, 21.10.2005, p.1).

Rates of payment for activities undertaken S

11.  The amount of aid payable under regulation 4 shall be calculated with reference to–

(a) the activity or activities undertaken, and the maximum rate of payment in respect of each activity described in column 2 of Schedule 2 shall be the rate shown opposite the entry for that activity in column 3 of that Schedule; and

(b) where appropriate, the capital item or items undertaken, and the maximum rate of payment in respect of each capital item described in column 1 of Schedule 3 shall be the rate shown opposite the entry for that capital item in column 2 of that Schedule.

Claims and payment S

12.—(1) Payment of aid under regulation 4 shall be made only on receipt of a claim for payment made by the beneficiary in writing in such form and manner and at such time as the Scottish Ministers from time to time require.

(2) The beneficiary must provide all particulars and information relating to such claim and copies of such documents and records relating thereto as the Scottish Ministers may reasonably require.

(3) The Scottish Ministers may make payments of aid by lump sums or instalments and in particular payment of aid shall be made–

(a) in the case of a payment relating to an activity under area related options [F16 (except those area related options numbered 74 to 77)] included in an undertaking, by annual payments paid in arrears, and the claim for such payment must–

(i) be submitted in accordance with the deadline for single applications as specified in regulation 6 of the IACS Regulations for the IACS year which begins in the calendar year in which the particular undertaking commences;

(ii) contain the information specified in Article 12 of Commission Regulation 796/2004 in relation to single applications; and

(iii) specify the unique identification number for each reference parcel of land under or compatible with the identification system for agricultural parcels referred to in [F17 Article 17 of Council Regulation 73/2009] and Article 6 of Commission Regulation 796/2004; and

(b) in the case of a payment relating to a capital item, excluding those capital items set out in Schedule 3, included in an undertaking, upon completion of the work and following production of evidence that the amount of eligible expenditure for which aid is claimed has been defrayed, including details of any discount thereon received.

(4) Paragraph (3)(a) applies to both agricultural and non-agricultural land.

(5) Payment as provided in paragraph (1) shall be made only where the Scottish Ministers are satisfied that–

(a) the eligibility conditions and requirements set out in the paragraph which begins Schedule 2 and in column 2 of that Schedule and, as the case may be, column 3 of that Schedule, in relation to that activity have been met; and

(b) where an undertaking specifies an activity or activities under an area related option the relevant compliance requirements as undertaken in terms of regulation 9(5) have been complied with.

(6) The provisions of these Regulations are, insofar as the aid claimed includes aid under Council Regulation 1698/2005, subject to Article 5 of Council Regulation 1698/2005 and Article 2 and paragraphs 5 and 6 of Article 27 of Commission Regulation 1974/2006.

Textual Amendments

F16 Words in reg. 12(3)(a) inserted (28.6.2008) by The Rural Development Contracts (Rural Priorities) (Scotland) Amendment Regulations 2008 (S.S.I. 2008/233), regs. 1, 5

F17 Words in reg. 12(3)(a)(iii) substituted (7.11.2009) by The Rural Development Contracts (Rural Priorities) (Scotland) Amendment (No. 3) Regulations 2009 (S.S.I. 2009/335), regs. 1, 6

Change of occupation of land S

13.—(1) Where during the relevant period of an undertaking, there is a change of occupation of all or any part of the land to which that undertaking relates, subject to the provisions of this regulation, the Scottish Ministers shall accept an undertaking from the new occupier.

(2) Where such a change of occupation occurs the former occupier (or, if that occupier has died, the occupier's executors) must within 3 months notify the Scottish Ministers in writing of the change of occupation, and must supply to the Scottish Ministers such information relating to that change in such form and within such period as the Scottish Ministers may determine.

(3) A new occupier of all or any part of the land who wishes to take on the undertaking, or a landlord who has undertaken jointly with the tenant, to assume any undertaking and who becomes a new occupier when the tenancy ends, must furnish the Scottish Ministers with such information in such form and within such period following the change of occupation as the Scottish Ministers may determine.

(4) A new occupier of all or any part of the land may take on the undertaking where the Scottish Ministers are 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 the change of occupation complied with the undertaking.

(5) A new occupier of all or any part of the land or, as the case may be, the former occupier of all or any part of the land may take on the undertaking insofar as it extends to that part of the land which that person occupies, or as the case may be continues to occupy, where the Scottish Ministers are satisfied that–

(a) such new occupier or, as the case may be, such former occupier of all of the land, is the lawful occupier of the part of the land which that person 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 that person 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.

(6) Where an undertaking specifies activities under area related options and where, during the period of an undertaking, an occupier increases the area of their landholding the occupier must comply with the relevant compliance requirements as regards the increased area of landholding and, if the occupier wishes the undertaking to also apply to the increased area of landholding, the occupier must submit to the Scottish Ministers an application for aid in accordance with regulation 3.

(7) Where occupation of the land is divided, the Scottish Ministers 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 any payments which would be payable under paragraph (8) for the remainder of the period of the undertaking in respect of that part of the land.

(8) Where the Scottish Ministers are satisfied as specified in paragraph (4), they shall, subject to regulation 4, make payments for the remainder of the period of the undertaking to the new occupier of the land who has taken on the undertaking.

(9) Where the Scottish Ministers are satisfied as to the matters specified in paragraph (5), they shall, subject to regulation 4, make payments of such proportion, if any, as they have determined under paragraph (7) 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.

(10) Where within 3 months from the date of change of occupation the undertaking has not been taken on in accordance with paragraph (4) or, as the case may be, paragraph (5), 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 made under these Regulations already made to that person in respect of the undertaking.

(11) 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.

(12) The provisions of this regulation are, insofar as the aid paid under these Regulations includes aid under Council Regulation 1698/2005, subject to Articles 44 and 45 (transfer of holding) and Article 47 (force majeure or exceptional circumstances) of Commission Regulation 1974/2006, and where a beneficiary is required to reimburse the aid paid, interest shall be payable thereon at the rate calculated in accordance with that provided in regulation 19.

Powers of authorised persons S

14.—(1) The Scottish Ministers may authorise a person, either generally or specifically, to act in relation to matters arising under these Regulations, and an authorised person may at all reasonable hours, on producing, if so required, some duly authenticated document showing the authorised person's authority, enter on any land or premises–

(a) to which an application for aid or undertaking relates; or

(b) on which the authorised person has reasonable grounds to believe that documents relating to an application for aid or undertaking are being kept, for any of the purposes mentioned in paragraph (2).

(2) The purposes referred to in paragraph (1) are–

(a) inspecting the land to which the application or undertaking relates;

(b) verifying the accuracy of any information provided by an applicant or a beneficiary or on the applicant's or the beneficiary's behalf, relating to an application, a claim for aid or an undertaking;

(c) determining whether or not a beneficiary has complied with an undertaking; or

(d) providing a control report in accordance with Article 13 or 19(2) of Commission Regulation 1975/2996.

(3) An authorised person who has entered any land or premises under paragraph (1) may–

(a) inspect the land and any premises, plant, machinery, equipment, document or record on it which that person reasonably believes relates to an application, a claim for payment of aid or an undertaking;

(b) require the applicant or the beneficiary, or any employee or agent of such applicant or beneficiary, to produce, or secure the production of, any document or supply any additional information in the applicant's or beneficiary's possession or under the applicant's or the beneficiary's control relating to an application, a claim for payment of aid or an undertaking, as the case may be;

(c) where any information referred to in sub paragraph (b) is kept by means of a computer, have access to any computer and any associated apparatus or material which is or has been used for storing that information and require that information to be reproduced in a form in which it may be easily read and can be taken away;

(d) require copies of or extracts from any such document or other record referred to in sub paragraphs (a) or (b) to be produced;

(e) retain a copy of any document produced to the authorised person;

(f) seize and retain any document or other record which that person reasonably believes may be required as evidence in proceedings under these Regulations; and

(g) in so far as may be necessary for the purposes of paragraph (2)(b) or (c), inspect and count livestock on the land or premises and may, for this purpose, require the applicant or the beneficiary, or any employee or agent of such applicant or beneficiary, to arrange for the collection, penning and securing of such livestock.

(4) An authorised person who enters any land or premises under paragraph (1) for the purposes referred to in paragraph (2)(c) or (d) may exercise, in addition to the powers specified in paragraph (3), any of the powers specified in Regulation 6(3) of the Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2004 M20 .

(5) An applicant or beneficiary or any employee or agent of such applicant or beneficiary must give an authorised person all reasonable assistance in relation to the matters mentioned in paragraphs (1) and (3) above.

(6) An authorised person entering any land under paragraph (1) may be accompanied by–

(a) any official of the European Commission; and

(b) such other person as the authorised person considers necessary,

and paragraphs (3) and (4) shall apply to that person when acting under the instructions of an authorised person as they apply to an authorised person.

(7) An authorised person will not be liable in any proceedings for anything done in exercise of the powers conferred on an authorised person by these Regulations if a court, hearing such proceedings, is satisfied that–

(a) the act was done in good faith;

(b) there were reasonable grounds for doing it; and

(c) it was done with reasonable skill and care.

(8) Paragraph (1) above applies to any land used for the purposes of a dwellinghouse only where reasonable notice of its intended exercise has been given to all residents of that dwellinghouse.

Marginal Citations

M20 S.S.I. 2004/518 as amended by S.S.I. 2005/143 and 2007/99.

Breaches of undertakings etc. S

15.—(1) Where–

(a) any information furnished to the Scottish Ministers by the applicant or beneficiary or on the applicant's or beneficiary's behalf, is false or misleading in a material respect;

(b) the beneficiary is in breach of any of the terms of an undertaking or any condition subject to which approval was given or payment of aid was made;

(c) the beneficiary is in breach of any requirement to which the beneficiary is subject under these Regulations or under Council Regulation 1698/2005, Commission Regulation 1974/2006 or Commission Regulation 1975/2006; or

(d) the whole or any part of any sum paid or payable under an undertaking duplicates assistance provided or to be provided out of monies made available by–

(i) the European Community; or

(ii) under any statutory provision,

the Scottish Ministers may exercise any of the powers specified in regulation 17.

(2) For the purposes of paragraph (1)(d), a sum duplicates such assistance if it is, or would be, paid for any of the same purposes.

(3) Where–

(a) there is a change of occupation under regulation 13 and the beneficiary has transferred all or part of the land to which an undertaking relates to another person (“the successor”);

(b) the successor has, within three months of the date of the transfer, given notice to the Scottish Ministers to assume the undertaking in place of the beneficiary; and

(c) the Scottish Ministers have accepted that undertaking,

the beneficiary shall be released from their undertaking with effect from the date of the acceptance by the Scottish Ministers of the successor's undertaking other than in respect of any breach or other matter occurring before the date last mentioned.

Other cases in which recovery etc. powers apply S

16.  The Scottish Ministers may exercise the powers specified in paragraph (1)(a) to (d) of regulation 17 where they are satisfied that–

(a) there has been a material change in the nature, scale or timing of the activities or capital items in relation to which an undertaking has been made;

(b) the activities or capital items in relation to which an undertaking has been made are delayed or are unlikely to be completed;

(c) the applicant or beneficiary has intentionally obstructed an authorised person (or a person accompanying that person and acting under that person's instructions) in the exercise of the powers under regulation 14 or failed to comply with a requirement imposed under regulation 14(3)(b) to (g);

(d) sums paid are otherwise not due under these Regulations; or

(e) the European Commission has decided that the aid paid, or to be paid, does not comply with Council Regulation 1698/2005, Commission Regulation 1974/2006 or Commission Regulation 1975/2006.

Powers of recovery etc. of the Scottish Ministers S

17.—(1) The powers conferred by regulations 15 and 16 are–

(a) to apply a reduction to any payment of aid made, or to be made to the applicant or beneficiary under these Regulations;

(b) to revoke or vary (including any conditions subject to which it was given) the approval in respect of the whole or any part of a payment of aid to be made;

(c) to withhold the whole or any part of the aid payable to the beneficiary; and

(d) to recover on demand the whole or any part of any aid already paid to a beneficiary.

(2) Where the powers specified in paragraph (1) are exercised and the Scottish Ministers also think that the applicant or beneficiary acted recklessly, the Scottish Ministers may also require the beneficiary to pay to the Scottish Ministers an additional sum equal to no more than 10% of the aid paid or payable to the beneficiary.

(3) Where the Scottish Ministers take any step specified in paragraph (1), the Scottish Ministers may also suspend or terminate the undertaking, and thereupon any entitlement of the beneficiary to aid in respect of the unexpired period of the undertaking shall likewise be suspended or terminated, as the case may be.

(4) A reduction under paragraph (1)(a) must be applied in accordance with Council Regulation 1975/2006.

(5) Before the Scottish Ministers do anything under paragraph (1), (2) or (3), they must–

(a) give the applicant or beneficiary in respect of whom such a step is proposed to be taken, written notification of that step, and if appropriate the amount by which it is proposed that the aid be reduced or the amount of such aid which it is proposed be withheld or recovered;

(b) give that applicant or beneficiary an opportunity to make representations about the proposed step, within such time and in such form as they think fit; and

(c) consider such representations.

Information and records S

18.—(1) A beneficiary must–

(a) retain all invoices, accounts and other relevant documents in relation to the application for aid or undertaking and produce them for inspection if required to do so by the Scottish Ministers; and

(b) provide such additional information in relation to the application for aid, undertaking or aid paid in pursuance of the application for aid or undertaking as the Scottish Ministers may require.

(2) The duties in paragraph (1) apply–

(a) in the case of a payment of aid for the purchase of heritable property, for a period of 10 years;

(b) in any other case, for a period of 6 years;

(in either case) following the last payment of aid under these Regulations.

(3) If the beneficiary transfers the original of any such document to another person in the normal course of business, the beneficiary must keep a copy of that document for that period.

(4) Paragraph (1) does not apply where the document has been removed by any person lawfully authorised to remove it.

Recovery of interest S

19.—(1) Where the Scottish Ministers exercise the power conferred by regulation 17(1)(d) they may also recover on demand interest on the sum to be recovered at a rate of interest one per cent above the sterling 3 month London interbank offered rate on a day to day basis from the date of demand of repayment until the date of recovery.

(2) In any proceedings for recovery under these Regulations, a certificate issued by the Scottish Ministers stating the rate or rates of interest, the amount of such interest recoverable and the period for which such interest is calculated shall, unless the contrary is shown, be conclusive of those matters.

Sums payable to the Scottish Ministers be recoverable as a debt S

20.  Where an amount falls to be paid to the Scottish Ministers by virtue of (or by virtue of an action taken under) these Regulations, such an amount is recoverable as a debt.

Guidance S

21.—(1) The Scottish Ministers may publish guidance from time to time on–

(a) the circumstances in which they will normally apply a reduction under regulation 17(1)(a), and the amount such a reduction will normally be; and

(b) generally, how they intend to perform their functions under these Regulations.

(2) The Scottish Ministers must have regard to any guidance published under paragraph (1) when performing their functions under these Regulations.

Offences S

22.—(1) A person is guilty of an offence if–

(a) for the purposes of obtaining any financial assistance under these Regulations for themselves or any other person, they knowingly or recklessly make a statement which is false or misleading in any material particular; or

(b) they intentionally obstruct an authorised person (or a person accompanying that person and acting under that person's instructions) in the exercise of the powers under regulation 14.

(2) A person guilty of an offence under paragraph (1) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(3) Proceedings for an offence under these Regulations may be commenced within the period of 12 months from the date on which the offence was committed.

(4) Section 136(3) of the Criminal Procedure (Scotland) Act 1995 M21 (date of commencement of proceedings) shall apply for the purposes of this regulation as it applies for the purposes of that section.

(5) Where an offence under paragraph (1) is committed by a body corporate or a partnership and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or similar officer of the body corporate, or any person who was purporting to act in such a capacity (or in the case of a partnership, a partner or a person who was purporting to act as such), that person as well as the body corporate or the partnership, as the case may be, is guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(6) Where the affairs of a body corporate are managed by its members, paragraph (5) applies in relation to the acts and defaults of a member in connection with the member's management functions as if the member were a director of the body corporate.

Marginal Citations

M21 1995 c. 46.

Right of appeal S

23.  The Agricultural Subsidies (Appeals) (Scotland) Regulations 2004 M22 are amended by inserting after regulation 4(t)–

“(u) a decision by the Scottish Ministers to withhold any aid due or recover any aid paid (in whole or in part) or require payment of any sum under the Rural Development Contracts (Rural Priorities) (Scotland) Regulations 2008, in terms of those Regulations.”.

Marginal Citations

M22 S.S.I. 2004/381 as amended by S.S.I. 2005/117, 225 and 569 and 2007/439.

RICHARD LOCHHEAD

A member of the Scottish Executive

St Andrew's House,

Edinburgh