The Less Favoured Area Support Scheme (Scotland) Regulations 2005

Made: 10th November 2005

Laid before the Scottish Parliament: 11th November 2005

Coming into force: 2nd December 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 application

1

• (1) These Regulations may be cited as the Less Favoured Area Support Scheme (Scotland) Regulations 2005 and shall come into force on 2nd December 2005.

• (2) These Regulations apply to holdings in respect of which the Scottish Ministers are the competent authority, in accordance with the Common Agricultural Policy Single Payment and Support Schemes (Integrated Administration and Control System) Regulations 2005[^f00002].

Interpretation

2

• (1) In these Regulations, unless the context otherwise requires–

• “agricultural” includes the use of land– for the purposes of horticulture, fruit growing, seed growing, dairy farming and livestock breeding and keeping; as grazing land, meadow land, osier land, market gardens and nursery grounds; and for woodlands, where that use is ancillary to the use of land for other agricultural purposes;

• “alpaca” means any alpaca of any breed which are kept by way of business for the primary purpose of fibre production;

• “animal” means any animal (including fish, reptiles or amphibians) bred or kept for the production of food, wool, skin or fur or for other farming purposes;

• “applicant” means a person who has made an application for less favoured area support under these Regulations in accordance with regulation 3;

• “area aid application” has the same meaning as in Article 6 of Council Regulation 3508/1992;

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

• “cattle” for the purposes of regulation 11 (enterprise mix), means– suckler cows and heifers; and for those applicants maintaining a dairy herd in the islands of Shetland, the islands of Orkney, the islands of Islay, Jura, Arran, Bute, Great Cumbrae, Little Cumbrae and the Kintyre Peninsula south of Tarbert, any other islands in the Outer Hebrides and the Inner Hebrides, or part of the Cowal peninsula as defined in Schedule 10, a livestock unit for each 5730 litres of milk quota held, which the Scottish Ministers determine are to be taken into account from time to time;

• “CLOPS” means cereals, linseed, oils and proteins corresponding to the types and use codes detailed in Schedule 4;

• “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[^f00003] ;

• “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);

• “common grazing” has the same meaning as it has for the purpose of Article 11 of Commission Regulation 817/2004;

• “competent authority” has the same meaning as in regulation 5 of the Common Agricultural Policy Single Payment and Support Schemes (Integrated Administration and Control System) Regulations 2005;

• “Council Regulation 3508/1992” means Council Regulation (EEC) No. 3508/1992 establishing an Integrated Administration and Control System for certain Community aid schemes[^f00004];

• “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[^f00005];

• “Council Regulation 1257/1999” means Council Regulation (EC) No. 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations[^f00006];

• “cross-border holding” means a holding in the United Kingdom which is situated partly in Scotland;

• “designated maps” means the four maps numbered 1 to 4, each such map being marked “Map of less-favoured farming areas in Scotland”, dated 5th May 1991, signed by the Secretary of State for Scotland and deposited at the offices of the Scottish Executive Environment and Rural Affairs Department, Pentland House, 47 Robb’s Loan, Edinburgh EH14 1TY;

• “eligible agricultural activity” means one or more of the following activities which, in the opinion of the Scottish Ministers are undertaken for a period or periods totalling not less than 183 days in the 2005 calendar year;– maintaining a herd of suckler cows; maintaining a flock of sheep comprising females of the ovine species which have lambed at least once or are at least 1 year old by 15th May in the Scheme year; maintaining a dairy herd in– the islands of Shetland; the islands of Orkney; the islands of Islay, Jura, Arran, Bute, Great Cumbrae, Little Cumbrae and the Kintyre Peninsula south of Tarbert; any other islands in the Outer Hebrides and the Inner Hebrides; or part of the Cowal peninsula as defined in Schedule 10; maintaining a breeding herd of farmed deer for meat production; maintaining a breeding herd of goats for fibre production; maintaining a breeding herd of alpaca for fibre production; or maintaining a breeding herd of llamas for fibre production;

• “eligible land” has the same meaning as in regulation 6;

• “eligible livestock unit” means a livestock unit determined in accordance with regulation 10(4) and Part I of Schedule 1;

• “farmed deer” means any deer (of any species) which are managed on a holding enclosed by a deer-proof barrier and are kept on the holding by way of business for the primary purpose of the production of meat;

• “forage area” has the same meaning as in Article 131(2)(b) of Council Regulation 1782/2003;

• “goat” means any goat (of any species) which is kept by way of business for the primary purpose of fibre production;

• “holding” has the same meaning as in Article 2(b) of Council Regulation 1782/2003;

• “less favoured area” means the land shown coloured in blue or in pink on the designated maps– which is situated in an area included in the list of less favoured farming areas adopted by Council Directive 84/169/EEC concerning the Community list of less-favoured farming areas within the meaning of Article 21 of Council Regulation (EC) No. 950/97[^f00007]; and which is, in the opinion of the Scottish Ministers, inherently suitable for extensive livestock production but not for the production of crops in quantity materially greater than that necessary to feed such livestock as are capable of being maintained on such land, and whose agricultural production is, in the opinion of the Scottish Ministers, restricted in its range by, or any combination of, soil, relief, aspect or climate;

• “livestock” means suckler cow, dairy cow, beef heifer, dairy heifer, sheep, goat, farmed deer, alpaca and llama;

• “livestock unit” means a unit of measurement of livestock numbers, and each of the following constitute one livestock unit:– one suckler cow; 1.66 heifers 8 months and over; 6.66 breeding ewes; 6.66 breeding female goats; 3.33 breeding female farmed deer 27 months and over; 5 breeding female farmed deer over 6 months but less than 27 months; 3.33 breeding female alpaca; 5730 litres of milk quota; 3.33 breeding female llamas;

• “llama” means any llama of any breed which is kept by way of business for the primary purpose of fibre production;

• “maximum stocking density” means 1.40 livestock units per hectare;

• “minimum stocking density” means 0.12 livestock units per hectare;

• “payable area” means the adjusted area of land on which less favoured area support is to be paid, calculated in accordance with regulation 9 and, where appropriate, regulation 11;

• “rough grazings and other semi-natural areas” means land containing semi-natural vegetation including heathland, heather moorland, bog, unimproved grassland and rough grassland which is used or suitable for grazing;

• “Scheme Year” means a calendar year commencing on 1st January;

• “Scheme 2005 payment” means the sum to which the applicant is entitled in respect of the period from 1st January 2004 to 31st December 2004;

• “Scheme 2006 payment” means the sum to which the applicant is entitled in respect of the period from 1st January 2005 to 31st December 2005;

• “shared grazing” means land used for grazing within a field used by two or more producers;

• “Sheep Annual Premium Scheme” means the Sheep Annual Premium Regulations 1992[^f00008];

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

• “suckler cow” means an adult female bovine animal kept in a regular breeding herd which is not maintained primarily for the production of milk;

• “Suckler Cow Premium Scheme” means the Suckler Cow Premium (Scotland) Regulations 2001[^f00009];

• “the 1996 Regulations” means the Hill Livestock (Compensatory Allowances) Regulations 1996[^f00010];

• “the 1999 Regulations” means the Hill Livestock (Compensatory Allowances) (Scotland) Regulations 1999[^f00011];

• “the 2001 Regulations” means the Less Favoured Area Support Scheme (Scotland) Regulations 2001[^f00012];

• “the 2002 Regulations” means the Less Favoured Area Support Scheme (Scotland) Regulations 2002[^f00013];

• “the 2003 Regulations” means the Less Favoured Area Support Scheme (Scotland) Regulations 2003[^f00014];

• “the 2004 Regulations” means the Less Favoured Area Support Scheme (Scotland) Regulations 2004[^f00015];

• “usual good farming practices” means those practices undertaken on a holding in compliance with– the provisions of environmental legislation set out in Part I of Schedule 2; and the verifiable standards set out in Part II of Schedule 2.

• (2) Unless the context otherwise requires, any reference in these Regulations to a numbered regulation or paragraph or to a Schedule is a reference to the regulation or paragraph of the regulation or the Schedule so numbered in these Regulations.

• (3) Any 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 Electronic Communications Act 2000[^f00016], which has been recorded and is consequently capable of being reproduced.

Applications for payment of less favoured area support

3

• (1) An application for less favoured area support shall be in such form and shall contain such particulars relating to that application as the Scottish Ministers may reasonably require.

• (2) An applicant shall submit the application for less favoured area support in respect of the Scheme Year in question to the Scottish Ministers on or before a date each year which the Scottish Ministers shall determine from time to time.

• (3) Subject to paragraph (4), if an applicant submits an application for less favoured area support in respect of the relevant Scheme Year later than the date determined by the Scottish Ministers, the Scottish Ministers must reduce, or as the case may be exclude the applicant from, payment of less favoured area support in accordance with Article 21 of Commission Regulation 796/2004.

• (4) Paragraph (3) shall not apply to an applicant who has not previously claimed any subsidy dependent upon an area aid application, who submits a claim form in accordance with regulation 6(1)(b).

Eligibility for payment of less favoured area support

4

• (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, in such form as the Scottish Ministers may reasonably require, to continue to use eligible land for eligible agricultural activities for a period of not less than five years from the first payment made under–

• (i) these Regulations;

• (ii) the 2004 Regulations;

• (iii) the 2003 Regulations;

• (iv) the 2002 Regulations;

• (v) the 2001 Regulations;

• (vi) the 1999 Regulations; or

• (vii) the 1996 Regulations;

• (b) that applicant applies usual good farming practices on their holding;

• (c) that applicant does not use on the holding any of the substances referred to in Article 14.2 of Council Regulation 1257/1999; and

• (d) that applicant complies with the environmental controls set out in Schedule 3 in respect of the holding.

• (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, where the applicant has ceased farming during the period for which the undertaking was given, the applicant’s successor agrees to take over the undertaking; or

• (c) if, in the opinion of the 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 applicant’s successor does not agree to be bound by the undertaking referred to in paragraph (1), 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.

Payment of less favoured area support

5

The Scottish Ministers may pay, on such occasions as they consider fit, in respect of the Scheme Year in question to an applicant less favoured area support for carrying out eligible agricultural activity on eligible land which is not less than 3 hectares.

Eligible land

6

• (1) Subject to paragraph (2), eligible land comprises the number of hectares of forage area in a less favoured area–

• (a) as declared in a single application submitted to the Scottish Ministers, on or before 15th May in the Scheme Year for which payment is to be made, by the applicant in accordance with Article 11 of Council Regulation 796/2004; or

• (b) where the applicant has not previously claimed any subsidy dependent upon a single application form, as declared by the applicant in a form which the Scottish Ministers shall from time to time specify.

• (2) Where the forage area contains land used for CLOPS, the number of hectares declared for CLOPS and treated as eligible land for the purposes of the Scheme 2006 payment of the applicant shall not exceed the number of hectares of CLOPS for which an applicant received a Scheme 2005 payment.

• (3) Eligible land includes land in respect of which the applicant has a right of use pursuant to arrangements such as short term lets, seasonal grazing and common grazing.

• (4) If an application made in accordance with regulation 3 relates in part to land upon which an activity is carried out which is not an eligible agricultural activity for the purposes of these Regulations, the Scottish Ministers shall determine the area of land which is to be attributed to the eligible agricultural activity.

Transfer of a holding

7

• (1) In determining eligible land under regulation 6(1), 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 less favoured area support to the transferor of a holding, if the transferor–

• (a) fulfils the conditions laid down by paragraphs 2 to 5 of Article 74 of Commission Regulation 796/2004; and

• (b) has been in continuous occupation of the holding for a period of not less than 183 calendar days in the Scheme Year concerned.

Amount of less favoured area support

8

• (1) Subject to paragraph (2) and regulation 13 (minimum payment), the amount of less favoured area support shall be calculated in accordance with the following formula:–

$$LFAS=P×R$ Where LFAS is the amount of less favoured area support payable; P is the payable area calculated in accordance with regulation 9 and, where appropriate, adjusted in accordance with regulation 11; and R is the rate of payment determined in accordance with regulation 12.$

• (2) Where an applicant has eligible land in more than one grazing category (as determined for the purposes of regulation 9) then–

• (a) the calculation in paragraph (1) shall be applied in respect of the total area of eligible land in each grazing category and, for the purposes of each calculation–

• (i) P is the payable area of land in each grazing category calculated in accordance with regulation 9 and, where appropriate, adjusted in accordance with regulation 11; and