The Land Management Contracts (Menu Scheme) (Scotland) Regulations 2005

Made: 21st April 2005

Laid before the Scottish Parliament: 22nd April 2005

Coming into force: 15th May 2005

The Scottish Ministers in exercise of the powers conferred by section 2(2) of the European Communities Act 1972[^f00001] and of all other powers enabling them in that behalf, hereby make the following Regulations:

Citation, commencement and extent

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• (1) These Regulations may be cited as the Land Management Contracts (Menu Scheme) (Scotland) Regulations 2005 and shall come into force on 15th May 2005.

• (2) These Regulations extend to Scotland only.

Interpretation

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• (1) In these Regulations–

• “1911 Act” means the Small Landholders (Scotland) Act 1911[^f00002];

• “1991 Act” means the Agricultural Holdings (Scotland) Act 1991[^f00003];

• “1993 Act” means the Crofters (Scotland) Act 1993[^f00004];

• “2003 Act” means the Agricultural Holdings (Scotland) Act 2003[^f00005];

• “5 year commitment” means the applicant must undertake to carry out, or carry out and maintain, the activities (or at least one activity) in respect of a relevant Menu Option in Schedule 1 and an undertaking to be granted under regulation 4(2) for 5 scheme years and the applicant must be either– the owner of the eligible land and– in lawful actual occupation of that land; or have undertaken, jointly with the tenant, to assume the obligations under their activities or an undertaking to be granted under regulation 4(2) as specified in the application for aid (in the case where the tenant’s tenancy has ended, when regulation 12 shall apply); or the tenant of the eligible land who is in lawful actual occupation of that land under a lease– which will run at least until the end of the period of 5 years commencing on the date the applicant assumes the obligations under the undertaking to be granted under regulation 4(2) as specified in the application; with security of tenure by virtue of any statutory provision until the end of that period; or where the tenant has jointly with the landlord undertaken to assume the obligations under their activities or an undertaking to be granted under regulation 4(2) as specified in the tenant applicant’s application for aid until the end of that period (in which case regulation 12 shall apply);

• “the Act of Accession” means the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded[^f00006];

• “activities” means the activities referred to in regulation 4(2) and column 2 of Schedule 1 and “activity” shall be construed accordingly;

• “agri environment scheme” means an arrangement which is or was– regulated by statutory instrument providing for the payment of aid to persons who enter into an agreement in relation to the use or management of land; and approved by the Commission of the European Communities under either– Article 44 of Council Regulation 1257/1999 as part of a rural development plan drawn up pursuant to Article 41 of that Regulation and containing measures pursuant to Articles 22 to 24 of that Regulation; or Article 7 of Council Regulation (EEC) No. 2078/1992 on agricultural production methods compatible with the requirements of the protection of the environment and the maintenance of the countryside[^f00007];

• “applicant” means a person who has made an application for aid in accordance with regulation 3 of these Regulations and in regulations 13 to 18 includes a person whose application for aid has been accepted and a person who takes on an undertaking on a change of occupation as provided in regulation 12;

• “application for aid” means an application for aid under these Regulations;

• “authorised person” means a person who is authorised by the Scottish Ministers under regulation 13, either generally or specifically, to act in relation to matters arising under these Regulations;

• “Council Regulation 1257/1999” means Council Regulation (EC) No. 1257/1999[^f00008] on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations, as amended by Commission Regulation (EC) No. 1783/2003[^f00009], the Act of Accession[^f00010], Council Regulation (EC) No. 567/2004[^f00011] and Council Regulation (EC) No. 583/2004[^f00012];

• “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 Council Regulation (EC) No. 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers[^f00013], as amended by Commission Regulation (EC) No. 239/2005[^f00014];

• “Commission Regulation 817/2004” means Commission Regulation (EC) No. 817/2004 laying down detailed rules for the application of Council Regulation (EC) No. 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF)[^f00015];

• “Council Regulation 1782/2003” means Council Regulation (EC) No. 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers[^f00016], as amended by Council Regulation (EC) No. 21/2004[^f00017], Council Regulation (EC) No. 583/2004[^f00018], Council Regulation (EC) No. 864/2004[^f00019] and Commission Regulation (EC) No. 118/2005[^f00020];

• “eligible land” means land which is eligible in accordance with regulation 7;

• “IACS Regulations” means the Common Agricultural Policy Single Payment and Support Schemes (Integrated Administration and Control System) Regulations 2005[^f00021];

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

• “landlord” means– 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; 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; 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; 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;

• “relevant competent authority” has the meaning given to it in regulation 5 of the IACS Regulations;

• “scheme year” means the year commencing on the last date for submission of the single application under regulation 6 of the IACS Regulations and Article 20 of Commission Regulation 796/2004 and having the same period as the IACS year;

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

• “tenant” means– 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; 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; 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; 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;

• “undertaking” means an undertaking mentioned in regulation 4(2).

• (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[^f00022] 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, shall 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 1 and 2 and not defined in paragraph (1) shall be construed in accordance with Schedule 3.

Applications for aid

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• (1) Subject to paragraph (4), an application for aid shall be made in writing to such authority, at such time, in such form and shall contain such information as the Scottish Ministers may reasonably require.

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

• (3) Where an application for aid is made in respect of a scheme year, applicants must also submit a single application to a relevant competent authority in accordance with the IACS Regulations for the IACS year which begins in the calendar year in which that scheme year begins.

Payment of aid

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• (1) Subject to the provisions of these Regulations, the Scottish Ministers may make payment of aid in respect of an undertaking to which these Regulations apply, to an applicant–

• (a) who is the owner or tenant of the eligible land to which such an undertaking relates and is in lawful actual occupation of that land or, in the case of an owner, has undertaken, jointly with the tenant, to assume the obligations under their activities or any undertaking to be granted under paragraph (2); and

• (b) whose application for aid has been accepted by the Scottish Ministers.

• (2) These Regulations apply to an undertaking in writing by the applicant to carry out, or as the case may be, to carry out and maintain, at least one of the activities referred to in Schedule 1.

Maximum amount of aid payable

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The maximum amount of aid payable to an applicant under these Regulations in respect of a scheme year shall be calculable as the sum of the allowance allocated to each individual whole hectare of land in Scotland comprised in the agricultural parcels declared in the single application submitted to the relevant competent authority by the applicant in accordance with Article 22 of Council Regulation 1782/2003 and Article 12(1)(d) of Commission Regulation 796/2004 as set out in the following table:

Restrictions on acceptance of applications for aid

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• (1) The Scottish Ministers shall not accept an application for aid–

• (a) which is received by them after the closing date for applications, as specified in regulation 3(1);

• (b) 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 make an application;

• (c) if they are satisfied that the use of the land in accordance with the proposals contained in the application 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;

• (d) 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;

• (e) where the applicant is prohibited from giving the undertaking under these Regulations by application of a penalty consequent upon Article 73 of Commission Regulation 817/2004 (which requires Member States to determine a system of penalties for breaches of the obligations entered into and of regulatory provisions applicable to the case); or

• (f) where the applicant is excluded from all aid under Chapter VI of Title II of Council Regulation 1257/1999 by virtue of Article 72 of Commission Regulation 817/2004 (which requires a person who, intentionally or by reason of serious negligence, makes a false declaration to be excluded from all rural development measures falling under the relevant chapter of Council Regulation 1257/1999) and the payment of aid in respect of the proposed undertaking would include such aid.

• (2) The Scottish Ministers shall not accept an application for aid without first having agreed with the applicant the date of commencement of the undertaking, which shall in no circumstances be earlier than the date on which the application was accepted.

Eligible land

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• (1) Land shall be eligible to have activities carried out on it if it is land in Scotland declared in the application for aid and the land is–

• (a) comprised in an agricultural parcel declared in the single application submitted to the relevant competent authority by the applicant in accordance with Article 22 of Council Regulation 1782/2003 and Article 12(1)(d) of Commission Regulation 796/2004; or

• (b) approved for that purpose and given an unique identification number compatible with the identification system for agricultural parcels referred to in Article 20 of Council Regulation 1782/2003 by the Scottish Ministers.

• (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 Article 20 of Council Regulation 1782/2003 and Article 6 of Commission Regulation 796/2004 where that number exists at the date of the application.

Transfer of a holding

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• (1) In determining eligible land under regulation 7 the decision of the Scottish Ministers shall be in accordance with Article 74 of Commission Regulation 796/2004 as appropriate.

• (2) For the purpose of paragraph 6 of Article 74 of Commission Regulation 796/2004, the Scottish Ministers shall grant aid to the transferor of a holding of eligible land, if the transferor fulfils the conditions laid down by paragraphs 2 to 5 of Article 74 of Commission Regulation 796/2004.

Determination of applications for aid

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• (1) The Scottish Ministers may approve (in whole or in part) or may reject an application for aid made under regulation 3, and in determining whether an application should be so approved or rejected, they shall have regard to–

• (a) the environmental benefits expected to be derived from the carrying out of the activities described in the application;

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

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

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

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

• (4) Before varying an approval or amending conditions attached to an approval in accordance with paragraph (3), the Scottish Ministers shall–

• (a) give to the person to whom the approval has been granted written notification of the action proposed to be taken;

• (b) give that person an opportunity to make representations about the action proposed to be taken within such time and in such form as the Scottish Ministers may require; and

• (c) consider any such representations.

Rates of payment for activities undertaken

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The amount of aid payable under regulation 4 shall, subject to the maximum amount of aid per hectare calculated under regulation 5, any maximum limit per hectare provided for in Annex I of Council Regulation 1257/1999 and the provisions of these Regulations, be calculated with reference to the activity or activities undertaken, and the rate of payment in respect of each activity described in column 2 of Schedule 1 shall be the rate shown opposite the entry for that activity in column 3 of that Schedule.

Claims and payment

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• (1) A claim for payment of aid under regulation 4–