The Dairy Produce Quotas Regulations 1991

Where, in terms of a notice given by the Minister under regulation 14, an apportionment or prospective apportionment is to be carried out by the Scottish Land Court, any fee payable by the Minister to the Court shall be recoverable by him as a debt due from the other parties to the case jointly or severally.

28

Any person having an interest in the holding to which the apportionment or prospective apportionment relates shall be entitled to be a party to the proceedings before the Scottish Land Court. The Minister shall be entitled to be a party where the apportionment follows on a notice given by him under regulation 14.

SCHEDULE 6 — APPORTIONMENTS AND PROSPECTIVE APPORTIONMENTS BY ARBITRATION—NORTHERN IRELAND

1

Paragraphs 3 to 18 below shall apply to every arbitration in Northern Ireland.

2

• (1) The Arbitration Act (Northern Ireland) 1937[^f00026] shall, except insofar as it is inconsistent with paragraphs 3 to 18 below, apply to every arbitration in Northern Ireland as if that arbitration were pursuant to an arbitration agreement and as if paragraphs 3 to 17 below were contained in an arbitration agreement.

• (2) In this paragraph “arbitration agreement” has the same meaning as in section 30 of the Arbitration Act (Northern Ireland) 1937.

Appointment of arbitrator

3

• (1) In any case where an apportionment is to be carried out by arbitration an arbitrator shall be appointed by agreement between the transferor and transferee within the period of two months referred to in regulation 8(1)(a) (referred to in this paragraph as “the relevant period”) and the appointment of the arbitrator within 14 days from the date of the appointment.

• (2) Notwithstanding subparagraph (1) above, the transferor or the transferee may at any time within the relevant period make an application to the President of the Law Society of Northern Ireland (referred to in this Schedule as “the President”) for the appointment of an arbitrator and the person who makes such an application to the President shall notify the Minister in writing of that fact within fourteen days from the date of the application.

• (3) If at the expiry of the relevant period an arbitrator has not been appointed by agreement between the transferor and the transferee nor an application made to the President under subparagraph (2) above, the Minister shall make an application to the President for the appointment of an arbitrator.

• (4) Where the Minister gives a notice in accordance with regulation 14 he shall make an application to the President for the appointment of an arbitrator and the Minister shall be a party to the arbitration.

4

• (1) In any case where a prospective apportionment is to be made by arbitration an arbitrator shall be appointed—

• (a) where regulation 14 applies, by the President;

• (b) in any other case, by agreement between the occupier and any other interested party, or, in default, by the President on an application by the occupier.

• (2) Where subparagraph (1)(b) above applies, the occupier shall notify the Minister in writing of the appointment of the arbitrator pursuant to the agreement, or of the application to the President for the appointment of an arbitrator, within fourteen days from the date of the appointment of the arbitrator or the date of the application to the President, as appropriate.

5

An arbitrator appointed in accordance with paragraphs 1, 3 and 4 above shall conduct the arbitration in accordance with this Schedule and shall base his award on findings made by him as to areas used for milk production in the five years preceding the change of occupation, or in the case of a prospective apportionment in the five years preceding the arbitration.

6

No application may be made to the President for an arbitrator to be appointed by him under this Schedule unless the application is accompanied by the fee which shall be £50 for such an application; but once the fee has been paid in connection with any such application no further fee shall be payable in connection with any subsequent application for the President to exercise any function exercisable by him in relation to the arbitration by virtue of this Schedule (including an application for the appointment by him in an appropriate case of a new arbitrator).

7

Where the Minister makes an application to the President under paragraphs 3(3) or (4) above, the fee payable to the President in respect of that application referred to in paragraph 6 above shall be recoverable by the Minister as a debt due from the parties to the arbitration jointly or severally.

8

Any appointment of an arbitrator by the President shall be made by him within fourteen days after receiving the application.

9

If the arbitrator dies, or is incapable of acting, or for seven days after notice from any party requiring him to act fails to act, a new arbitrator may be appointed as if no arbitrator had been appointed.

10

A party to the arbitration shall have power to revoke the appointment of the arbitrator with the consent of all other parties.

11

Every appointment, application, notice, revocation and consent under the foregoing paragraphs shall be in writing.

Statement of case

12

The parties to the arbitration shall, within thirty-five days from the appointment of the arbitrator, deliver to him a statement of their respective cases with all necessary particulars and—

• (a) no amendment or addition to the statement or particulars delivered shall be allowed after the expiry of the said thirty-five days except with the consent of the arbitrator;

• (b) a party to the arbitration shall be confined at the hearing to the matters alleged in the statement and particulars delivered by him and any amendment or addition duly made.

Award

13

The arbitrator shall make and sign his award within fifty-six days of his appointment.

14

The arbitrator shall notify the terms of his award to the Minister within 8 days of the delivery of that award.

15

The arbitrator shall have power to correct in the award any clerical mistake or error arising from any accidental slip or omission.

Reasons for award

16

If requested by any party to the arbitration, on or before the making of the award, to make a statement, either written or oral, of the reasons for the award the arbitrator shall furnish such a statement.

17

For the purposes of this Schedule, an arbitrator appointed by the President shall be taken to have been so appointed at the time when the President executed the instrument of appointment; and in the case of any such arbitrator the periods mentioned in paragraphs 12 and 13 above shall run from that time.

18

Any person having an interest in the holding to which the arbitration relates shall be entitled to make representation to the arbitrator.

SCHEDULE 7 — CONVERSION OF DIRECT SALES QUOTA AND WHOLESALE QUOTA

1

An applicant for the conversion of direct sales quota into wholesale quota or wholesale quota into direct sales quota in respect of a quota year who has both wholesale quota and direct sales quota shall submit his application to the Minister no later than a date to be determined by the Minister in respect of each quota year and published in the Gazette.

2

An application referred to in paragraph 1 shall, in respect of the quota year concerned—

• (a) state the amount of the applicant’s direct sales quota and wholesale quota, his direct sales and wholesale deliveries of dairy produce, and

• (b) provide such other information as may reasonably be required to be provided in order to enable the Minister to assess the factors referred to in Article 6a of Council Regulation 857/84.

3

The Minister shall calculate the amount of the applicant’s direct sales quota or wholesale quota which has not been used in that quota year and which the applicant has available for conversion into wholesale quota or direct sales quota, as the case may be.

4

The Minister shall convert into wholesale quota or direct sales quota, as the case may be, the total amount of direct sales quota or wholesale quota which has not been used in that quota year and which applicants have applied to convert.

SCHEDULE 8 — CALCULATION OF LEVY LIABILITY

Wholesale quota

1

The Minister shall determine the amount, if any, by which the wholesale deliveries of dairy produce to each purchaser exceeds its total purchaser quota after having completed in sequence the steps required by paragraphs 3 to 8.

2

The Minister shall determine the amount of levy to be paid by each purchaser by multiplying the amount, if any, referred to in paragraph 1, by the rate of levy established in accordance with Article 1 of Council Regulation 857/84.

3

The Minister shall determine the amount, if any, by which the quantity of wholesale deliveries of dairy produce to each purchaser must be adjusted to take account of its fat content, calculated in accordance with article 12(2) of the Commission Regulation.

4

The Minister shall determine for each purchaser the amount, if any, taking into account the amount of quota converted in accordance with Schedule 7, by which the purchaser quota of each purchaser exceeds or falls short of the quantity of wholesale deliveries of dairy produce made to it, and where the purchaser operates in more than one region shall make a determination in respect of each such region.

5

The Minister may, at the request of a purchaser which–

• (a) operates in more than one region; and

• (b) has an excess of purchaser quota in relation to the quantity of wholesale deliveries made to it in one region but a shortfall of such quota in another region,

reallocate the excess quota to the region where the shortfall exists, to the extent necessary to offset the purchaser’s potential liability to levy.

6

The Minister shall–

• (a) determine the amount, if any, of excess purchaser quota remaining for each purchaser in each region after the determination in paragraph 4 and any reallocation in accordance with paragraph 5 have been made;

• (b) determine the total of all such amounts in each region.

7

The Minister shall reallocate the amount, if any, referred to in paragraph 6(b) among purchasers within that region in proportion to the amount by which the quantity of wholesale deliveries of dairy produce made to them adjusted to take account of its fat content exceeds the purchaser quota of each such purchaser.

8

The Minister shall determine the amount, if any, by which the purchaser quota of all purchasers in each region exceeds the total quantity of wholesale deliveries of dairy produce made to them, and shall reallocate such amount among purchasers in regions in which the wholesale deliveries exceed the sum of purchaser quotas available, in proportion to the amount by which the wholesale deliveries made to each purchaser exceeds its purchaser quota.

Direct sales quota

9

The Minister shall determine the amount, if any, by which the direct sales quota of all direct sellers, after taking into account the amount of quota converted in accordance with Schedule 7, falls short of the total quantity of dairy produce sold by direct sales by them.

10

The Minister shall determine for each direct seller the amount, if any, taking into account the amount of quota converted in accordance with Schedule 7, by which his direct sales quota falls short of the quanity of dairy produce sold by direct sale by him.

11

The Minister shall determine the aggregate of the amounts, if any, referred to in paragraph 10.

12

The Minister shall determine the total amount of levy payable by multiplying the amount, if any, referred to in paragraph 9 by the rate of levy calculated in accordance with Article 11 of Council Regulation 857/84.

13

The Minister shall calculate the rate of levy per litre, if any, to be paid by each direct seller on the amount, if any, at paragraph 10 by dividing the amount calculated in accordance with paragraph 12 by the aggregate referred to in paragraph 11.

14

Where a direct seller fails to notify the Minister within two months of the end of the quota year of the total quantity of milk or milk products sold by him by direct sales in that year, the Minister may require that rate of levy per litre, to be paid by that direct seller on the quantity not notified shall be the rate calculated in accordance with Article 1 of Council Regulation 857/84.

SCHEDULE 9 — ADDITIONAL MILK PRODUCTS

1

The Minister shall award quota under regulation 24 to a producer whose application for such quota is received by the Minister on or before 11th November 1991.

Primary quota

2

The Minister shall award quota (in this Schedule called “primary quota” to a producer who made sales of additional milk products in the calendar year 1990.

3

• (1) The amount of primary quota shall be 90 per cent of the quantity (in this paragraph called “the base quantity”) of additional milk products sold by the producer determined by the Minister in accordance with the following provisions of this paragraph.

• (2) The base quantity shall be, for each producer, the quantity of all additional milk products made from milk produced on his holding, and sold by him in one of the calendar years 1988, 1989 or 1990, whichever quantity is, in the opinion of the Minister, the greatest.

• (3) In determining the base quantity, the Minister shall take into account of evidence provided by the producer as to the quantities referred to in subparagraph (2) above.

Secondary quota

4

The Minister shall establish from the national direct sales reserve an additional milk products development provision for the purpose of meeting awards of quota made under paragraph 5, and shall publish in the Gazette the amount of quota comprising that provision.

5

The Minister shall award quota (in this Schedule called “secondary quota”) from the additional milk products development provision in accordance with paragraphs 6 to 8 to a producer who before 1st March 1991—

• (a) had expended money or had entered into a contract to expend money to establish, expand or improve facilities available to him for the production or increased production of additional milk products from milk produced on his holding; or

• (b) had expended money or had entered into a contract to expend money to establish, expand or improve facilities available to him for the production or increased production from his own dairy enterprise of milk for the manufacture of additional milk products, and—

• (i) had available facilities for the production of additional milk products from the extra volume of milk to be produced, or

• (ii) had expended money or entered into a contract to expend money to establish such facilities for production, or

• (iii) had entered into a contract for the production on his behalf of additional milk products from the extra volume of milk to be produced.

6

• (1) For the purposes of an award of secondary quota under paragraph 5, the Tribunal shall determine in respect of each producer—

• (a) the quantity of additional milk products made from milk produced on his holding that might reasonably be expected to be produced annually using—

• (i) the facilities available to the producer on 28th February 1991, and

• (ii) the additional facilities expected to be available to the producer on 31st March 1992 by virtue of money expended or a contract entered into as mentioned in paragraph 5(a) and (b) before 1st March 1991;

• (b) the quantity of the additional milk products referred to in subparagraph (a) that might reasonably be expected to be sold by direct sale by the producer annually.

• (2) In making the determination referred to in subparagraph 1(b) the Tribunal shall have regard to the producer’s established pattern of sales of additional milk products and to the producer’s commitment to supply such products.

• (3) For the purposes of an award of secondary quota, the Tribunal may also determine in respect of each producer—

• the quantity, or a part of the quantity, by which the sum of the producer’s wholesale and direct sales quota (other than any primary quota awarded under paragraph 2), taking account of any wholesale and direct sales quota permanently or temporarily transferred by or to him since 28th February 1991, exceeds the quantity of the dairy produce other than additional milk products which that producer may be expected to sell by direct sale or deliver to a purchaser in the quota year ending on 31st March 1992,

if in the Tribunal’s opinion it is fair and reasonable that such a quantity or a part of a quantity should be taken into account in making the award.

7

The Tribunal shall send to the Minister and to the producer a notification of its determination and a written statement of the reasons for that determination.

8

The Minister shall—

• (a) in respect of each determination made by the Tribunal under paragraph 6, deduct from the quantity referred to in paragraph 6(1)(b) the base quantity in respect of which any primary quota is awarded to the producer and the quantity or part of a quantity, if any, referred to in paragraph 6(3);

• (b) aggregate the quantities resulting from the calculations made under sub-paragraph (a) above in respect of all the producers who made applications in accordance with paragraph 1.

9

• (a) If the aggregate determined under paragraph 8(b) exceeds the additional milk products development provision established under paragraph 4, the quota awarded to each producer under paragraph 5 shall be calculated by multiplying the quantity calculated under paragraph 8(a) relating to that producer by a fraction the numerator of which shall be the additional milk products development provision and the denominator of which shall be that aggregate.

• (b) If the said aggregate does not exceed the additional milk products development provision, the quota awarded to each producer under paragraph 5 shall represent 79.8 per cent of the quantity calculated under paragraph 8(a) relating to that producer, and any unallocated part of the additional milk products development provision shall be returned to the national direct sales reserve.

The Register

10

The Minister shall amend the direct sales register which is required to be maintained by regulation 28(1) of these Regulations so as to record the awards made under paragraphs 2 and 5 and shall inform each producer to whom an award relates in writing of that award.

Interpretation

11

In this Schedule—

• (a) “quota” means direct sales quota, unless the context otherwise requires;

• (b) “facilities” includes buildings, plant and equipment used for dairying purposes or for the manufacture of additional milk products but does not include land or cows; and

• (c) a reference to a quantity of additional milk products shall be taken to be a reference to the quantity of milk expressed in kilograms or litres (one kilogram being 0.97116 litres of milk), required to produce the additional milk products in question.

SCHEDULE 10 — DAIRY PRODUCE QUOTA TRIBUNALS

PART 1 — DAIRY PRODUCE QUOTA TRIBUINALS (OTHER THAN FOR SCOTLAND)

1

Each Dairy Produce Quota Tribunal shall consist of up to ninety members appointed by the Minister. The Minister shall designate one of the members of each Tribunal as the Chairman of that Tribunal and may, if he thinks fit, designate another member as the Deputy Chairman.

2

The quorum for any determination by a Dairy Produce Quota Tribunal shall be three.

3

Any determination to be made by a Dairy Produce Quota Tribunal shall be made by a majority.

4

Each Dairy Produce Quota Tribunal may be serviced by a Secretary and such other staff as the Minister may appoint.

5

Any document purporting to be signed by the Chairman or Deputy Chairman of, or the Secretary to, a Dairy Produce Quota Tribunal and purporting to state a determination (or guidance) of the Dairy Produce Quota Tribunal shall in any proceedings be evidence of such a determination (or such guidance).

6

The terms of appointment and the remuneration of the members, Secretary and other staff of a Dairy Produce Quota Tribunal shall be determined by the Minister.

7

Except as otherwise provided in these Regulations, the procedure of a Dairy Produce Quota Tribunal shall be such as the Chairman, or, in the absence of the Chairman, the Deputy Chairman, shall in his discretion determine.

PART II — THE DAIRY PRODUCE QUOTA TRIBUNAL FOR SCOTLAND

8

The Dairy Produce Quota Tribunal shall consist of up to twenty members appointed by the Minister.

9

The Dairy Produce Quota Tribunal shall sit in separate panels, and a determination of any such panel shall be treated as the determination of the Tribunal for the purpose of these Regulations.

10

Each panel constituted under paragraph 9 shall choose their own Chairman.

11

The quorum for any determination by the Dairy Produce Quota Tribunal shall be three.

12

Any determination to be made by the Dairy Produce Quota Tribunal shall be made by a majority.

13

Each panel constituted under paragraph 9 shall be serviced by a Secretary and such other staff as the Minister may appoint.

14

Any document purporting to be signed by the Chairman of, or the Secretary to, a panel constituted under paragraph 9 and purporting to state a determination of the Dairy Produce Quota Tribunal shall in any proceedings be evidence of such a determination.

15

The terms of appointment and the remuneration of—

• (a) the members of the Dairy Produce Quota Tribunal, and

• (b) the Secretary and other staff of a panel constituted under paragraph 9 shall be determined by the Minister.

16

Except as otherwise provided in these Regulations, the procedure of a panel constituted under paragraph 9 shall be such as their Chairman shall in his discretion determine.

17

A panel constituted under paragraph 9 may consult with any person whom the panel consider to be capable of assisting them in reaching their determination and, in the event of such consultation, the applicant whose special case claim is being examined by the panel shall be afforded the opportunity to comment, before the panel reach their determination, on any advice given by that person.

PART III — GENERAL

18

The Dairy Produce Quota Tribunals for England and Wales, Scotland and Northern Ireland shall, if so required by the Ministers, issue a joint written statement of general guidance in respect of the criteria to be used in reaching any determination in relation to direct sales quota, and each Dairy Produce Quota Tribunal shall make its determinations in accordance with those criteria.

SCHEDULE 11 — REVOCATIONS

Regulations revoked	References
The Dairy Produce Quotas Regulations 1989	S.I. 1989/380
The Dairy Produce Quotas (Amendment) Regulations 1990	S.I. 1990/132
The Dairy Produce Quotas (Amendment) (No. 2) Regulations 1990	S.I. 1990/664
The Dairy Produce Quotas (Amendment) (No. 3) Regulations 1990	S.I. 1990/784
The Dairy Produce Quotas (Amendment) Regulations 1991	S.I. 1991/832

Signed

In witness whereof the Official Seal of the Minister of Agriculture, Fisheries and Food is hereunto affixed on 4th October 1991.

John Selwyn Gummer — Minister of Agriculture, Fisheries and Food

Strathclyde — Parliamentary Under Secretary of State, Scottish Office — 8th October 1991

Explanatory note

(This note is not part of the Regulations)

These Regulations consolidate with amendments the Dairy Produce Quotas Regula tions 1989 as amended. The Regulations implement in the United Kingdom—

• (a) article 5c of Council Regulation (EEC) No. 804/68,

• (b) Council Regulation (EEC) No. 857/84, and

• (c) Commission Regulation (EEC) No. 1546/88,

which are referred to as “the Community legislation” in the Regulations (regulation 2 and Schedules 1, 2 and 3). Under the Community legislation, a levy is chargeable on dairy produce sold by direct sale by a producer or delivered by him wholesale to a dairy business, unless the sales or deliveries are within a reference quantity described in that legislation. The Community legislation establishes the system of what are commonly called “milk quotas” and in these Regulations the term “quota” is used to refer to the reference quantities described in the Community legislation.

The principal change introduced by these Regulations is provision for the award of quota to producers making sales of dairy produce other than milk, butter, cream or cheese (for example, yogurt and ice cream), for which quota has not previously been established (regulation 24 and Schedule 9). This provision gives effect to Council Regulation (EEC) No. 306/91 (OJ No. L37, 9.2.91, p. 4) amending the definition of “other milk products” in Article 12 of Council Regulation (EEC) No. 857/84. Applications from producers for awards of quota were invited before the coming into force of these Regulations and the provision establishes 11th November 1991 as the date by which applications must be made. Criteria for entitlement to quota are set out in Schedule 9. Awards will be made of “primary quota” and “secondary quota”; the former will be granted to established producers and the latter to producers who can show that by 1st March 1991 they were committed to developing their production. Secondary quota awards will be based on determinations made by the Dairy Produce Quota Tribunals.

Apart from minor and drafting amendments, the following changes have also been made by these Regulations:

• (a) provisions concerning inter alia recent awards of quota, which are now spent, have been omitted;

• (b) more detailed provision has been made concerning the adjustment of purchaser quotas following changes in deliveries made by producers (regulation 7) and consequential amendments have been made to the requirements for registering wholesale quota (regulation 28);

• (c) the date for notifying temporary transfers of quota has been omitted (regulation 17);

• (d) interest is made payable on amounts of levy not paid to the Intervention Board for Agricultural Produce on the due date (regulation 23);

• (e) the level of fine applicable under the Regulations is linked to the standard scale (regulation 34);

• (f) provision is made for the terms of awards, where the apportionment of quota is determined by arbitration, to be notified to the Minister (Schedules 4, 5 and 6);

• (g) the provisions concerning the conversion of direct sales quota into wholesale quota and vice versa are simplied (Schedule 7);

• (h) the provisions concerning the calculation of liability for levy are amended so as to preclude direct sellers who do not submit their sales declarations by the due date from benefiting from unused quota of other producers (Schedule 8);

• (i) provision is made for the appointment of a Deputy Chairman of the Dairy Produce Quota Tribunals for England and Wales and for Northern Ireland (Schedule 10).

Footnotes

[^f00001]: S. I. 1972/1811.

[^f00002]: 1972 c. 68; section 2 is subject to Schedule 2 to that Act and is to be read, as regards England and Wales, with sections 37, 40 and 46 of the Criminal Justice Act 1982 (c. 48) and S.I. 1984/447, as regards Scotland, with section 289GA of the Criminal Procedure (Scotland) Act 1975 (c. 21) (as inserted by section 66(2) of the Criminal Justice (Scotland) Act 1987 (c. 41)) and, as regards Northern Ireland, with S.I. 1984/703 (N.I.3) and S.R. (N.I.) 1984 No. 253.

[^f00003]: OJ No. L139, 4.6.88, p. 12.

[^f00004]: OJ No. L148, 28.6.68, p. 13 (OJ/SE 1968(1) p. 176).

[^f00005]: OJ No. L90, 1.4.84, p. 13.

[^f00006]: OJ No. L78, 20.3.87, p. 5.

[^f00007]: OJ No. L378, 27.12.89, p. 3.

[^f00008]: 1958 c. 47, to which there are amendments not relevant to these Regulations.

[^f00009]: 1964 c. 13 (N.I.), to which there are amendments not relevant to these Regulations.

[^f00010]: S.I. 1984/1047; amended by S.I. 1984/1538, 1787 and S.I. 1985/509.

[^f00011]: S.I. 1986/470; amended by S.I. 1988/534 and S.I. 1989/16.

[^f00012]: S.I. 1989/380; amended by S.I. 1990/132, 664, 784 and S.I. 1991/832.

[^f00013]: 1986 c. 5.

[^f00014]: 1981 c. 22.

[^f00015]: S.I. 1981/1115 (N.I. 22).

[^f00016]: 1985 c. 48.

[^f00017]: 1958 c. 47, to which there are amendments not relevant to these Regulations.

[^f00018]: 1964 c. 13 (N.I. ), to which there are amendments not relevant to these Regulations.

[^f00019]: 1986 c. 5.

[^f00020]: 1984 c. 28.

[^f00021]: 1950 c. 27, to which there are amendments not relevant to these Regulations.

[^f00022]: 1955 c. 21; section 3(1) was amended by The Crofters (Scotland) Act 1961 (c. 58), Schedule 1, Part II, paragraph 9.

[^f00023]: 1911 c. 49.

[^f00024]: 1949 c. 75.

[^f00025]: 1894 c. 13 (57 and 58 Vict.).

[^f00026]: 1937 c. 8 (N.I.).