The Dairy Produce Quotas (Scotland) Regulations 2005

Regulations 10(2)

SCHEDULE 1 S APPORTIONMENTS AND PROSPECTIVE APPORTIONMENTS BY ARBITRATION OR THE SCOTTISH LAND COURT

PART I S GENERAL

1.—(1) Subject to sub-paragraphs (2) and (3), all apportionments and prospective apportionments in respect of holdings in Scotland shall be carried out by arbitration and the provisions of Part II of this Schedule shall apply. S

(2) The Scottish Land Court shall carry out the apportionment or prospective apportionment where the holding or any part of the holding constitutes or, immediately prior to the transfer giving rise to the apportionment, constituted–

(a) a croft within the meaning of section 3 of the Crofters (Scotland) Act 1993;

(b) a holding within the meaning of section 2 of the Small Landholders (Scotland) Act 1911; or

(c) the holding of a statutory small tenant under section 32 of the Small Landholders (Scotland) Act 1911.

(3) Where sub-paragraph (2) does not apply and the holding or any part of the holding constitutes or, immediately prior to the transfer giving rise to the apportionment, constituted an agricultural holding within the meaning of section 1 of the Agricultural Holdings (Scotland) Act 1991, the Scottish Land Court shall carry out the apportionment or prospective apportionment if requested to do so by a joint application of all parties interested in the apportionment, not later than 28 days after the change of occupation of the holding or part of the holding.

(4) Where the Scottish Land Court carries out any apportionment or prospective apportionment, Part III of this Schedule shall apply.

Commencement Information

I1 Sch. 1 para. 1 in force at 31.3.2005, see reg. 1(2)

2.—(1) An arbiter or the Scottish Land Court, as the case may be, shall decide the apportionment on the basis of findings made by that arbiter or the Scottish Land Court, as to areas used for milk production in the last five-year period during which production took place before the change of occupation or, in the case of a prospective apportionment, in the last five-year period during which production took place before the appointment of the arbiter or the application to the Scottish Land Court. S

(2) Notwithstanding sub-paragraph (1), an arbiter appointed in accordance with paragraph 3(4) shall conduct the arbitration in accordance with this Schedule and shall base the award on findings made by that arbiter as to the areas used for milk production in the last five-year period during which production took place.

(3) Where production has taken place for less than five years before the change of occupation or of appointment of the arbiter or of the application to the Scottish Land Court, the period of production before the change of occupation or the appointment of the arbiter or the application to the Scottish Land Court as the case may be shall be substituted for the five-year period referred to in sub-paragraphs (1) and (2).

Commencement Information

I2 Sch. 1 para. 2 in force at 31.3.2005, see reg. 1(2)

PART II S APPORTIONMENTS CARRIED OUT BY ARBITRATION

3.—(1) Subject to sub-paragraph (4), in any case where an apportionment is to be carried out by arbitration, an arbiter shall be appointed by agreement between the transferor and transferee within the period of 28 days from the change of occupation of the holding or part of the holding and the transferee shall give notice of the appointment of the arbiter to the Scottish Ministers within fourteen days from the date of the appointment. S

(2) Notwithstanding sub-paragraph (1), the transferor or the transferee may at any time within the period of 28 days referred to in sub-paragraph (1) make an application to the Scottish Ministers for the appointment of an arbiter.

(3) If at the expiry of the period of 28 days referred to in sub-paragraph (1) an arbiter has not been appointed by agreement between the transferor and the transferee nor an application made to the Scottish Ministers under sub-paragraph (2), the Scottish Ministers shall at their own instance proceed to appoint an arbiter.

(4) Where an apportionment under regulation 39(4)(b) is to be carried out by arbitration, the producer shall either appoint an arbiter with the agreement of all persons with an interest in the holding or make an application to the Scottish Ministers for the appointment of an arbiter.

Commencement Information

I3 Sch. 1 para. 3 in force at 31.3.2005, see reg. 1(2)

4.—(1) In any case where a prospective apportionment is to be made by arbitration, an arbiter shall be appointed by agreement between the occupier and any other interested party or, in default of agreement, by the Scottish Ministers on an application by the occupier. S

(2) Where an arbiter is appointed by agreement in terms of sub-paragraph (1), the occupier shall give notice of the appointment of the arbiter to the Scottish Ministers within fourteen days from the date of the appointment.

Commencement Information

I4 Sch. 1 para. 4 in force at 31.3.2005, see reg. 1(2)

5.—(1) Where, in terms of a notice given by the Scottish Ministers under regulation 12(2), an apportionment or prospective apportionment is to be carried out by arbitration, the Scottish Ministers shall apply to the Scottish Land Court for the appointment of an arbiter. S

(2) Any fee payable by the Scottish Ministers on an application to the Scottish Land Court under sub-paragraph (1) shall be recoverable by them as a debt due from the other parties to the arbitration jointly and severally.

(3) Where the Scottish Ministers are to be a party to an arbitration (otherwise than in terms of a notice given under regulation 12(2), the arbiter shall, in lieu of being appointed by the Scottish Ministers, be appointed by the Scottish Land Court.

Commencement Information

I5 Sch. 1 para. 5 in force at 31.3.2005, see reg. 1(2)

6.—(1) If the person appointed arbiter dies, or is incapable of acting, or is removed by the sheriff under paragraph 23, or for seven days after notice from any party requiring that person to act fails to act, a new arbiter may be appointed as if no arbiter had been appointed. S

(2) If an award is set aside by the sheriff under paragraph 24, a new arbiter may be appointed as if no arbiter had been appointed.

Commencement Information

I6 Sch. 1 para. 6 in force at 31.3.2005, see reg. 1(2)

7.  No party to the arbitration shall have power to revoke the appointment of the arbiter without the consent of all of the other parties. S

Commencement Information

I7 Sch. 1 para. 7 in force at 31.3.2005, see reg. 1(2)

8.  Every appointment, application, notice, revocation and consent under paragraphs 1 to 7 must be in writing. S

Commencement Information

I8 Sch. 1 para. 8 in force at 31.3.2005, see reg. 1(2)

9.  The remuneration of the arbiter shall be– S

(a) where the arbiter is appointed by agreement between the parties, such amounts as may be agreed upon by the arbiter and the parties or, in default of agreement, fixed by the auditor of the sheriff court (subject to an appeal to the sheriff) on an application made by the arbiter or one of the parties;

(b) where the arbiter is appointed by the Scottish Ministers, such amount as may be fixed by the Scottish Ministers;

(c) where the arbiter is appointed by the Scottish Land Court, such amount as may be fixed by that Court,

and shall be recoverable by the arbiter as a debt due from any one of the parties to the arbitration.

Commencement Information

I9 Sch. 1 para. 9 in force at 31.3.2005, see reg. 1(2)

10.—(1) Subject to sub-paragraph (2), in any arbitration to which this Schedule applies, the arbiter may join as a party to the arbitration any person having an interest in the holding, whether or not such person has applied to become a party to the arbitration, provided that such person consents to be so joined. S

(2) Where an apportionment pursuant to a request in a statement under regulation 39(4)(b) is to be carried out by arbitration, any person with an interest in the holding who has refused to sign such a statement as is referred to in regulation 39(4)(a) must be a party to the arbitration.

Commencement Information

I10 Sch. 1 para. 10 in force at 31.3.2005, see reg. 1(2)

11.  The parties to the arbitration shall within twenty-eight days of the appointment of the arbiter deliver to the arbiter a statement of their respective cases with all necessary particulars; and S

(a) no amendment or addition to the statement or particulars delivered shall be allowed after the expiry of the said twenty-eight days except with the consent of the arbiter;

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

Commencement Information

I11 Sch. 1 para. 11 in force at 31.3.2005, see reg. 1(2)

12.  The parties to the arbitration, and all persons claiming through them, shall, subject to any legal objection, submit to be examined by the arbiter on oath or affirmation in relation to the matters in dispute and shall, subject to any such objection, produce before the arbiter all samples, books, deeds, papers, accounts, writings and documents, within their possession or power which may be required or called for, and do all other things as the arbiter reasonably may require for the purposes of the arbitration. S

Commencement Information

I12 Sch. 1 para. 12 in force at 31.3.2005, see reg. 1(2)

13.  Any person having an interest in the holding to which the arbitration relates shall be entitled to make representations to the arbiter and the Scottish Ministers may make such representations where the arbitration follows on a notice given by them under regulation 12(2). S

Commencement Information

I13 Sch. 1 para. 13 in force at 31.3.2005, see reg. 1(2)

14.  The arbiter shall have power to administer oaths, and to take the affirmation of parties and witnesses appearing, and witnesses shall, if the arbiter thinks fit, be examined on oath or affirmation. S

Commencement Information

I14 Sch. 1 para. 14 in force at 31.3.2005, see reg. 1(2)

15.—(1) The arbiter shall make and sign the award within three months of the appointment of the arbiter or within such longer period as may, either before or after the expiry of the aforesaid period, be agreed to in writing by the parties or fixed by the Scottish Ministers. S

(2) The arbiter shall notify the terms of that award to the Scottish Ministers within eight days of the delivery of the award.

(3) The award shall fix a date not later than one month after the delivery of the award for the payment of any expenses awarded under paragraph 19.

Commencement Information

I15 Sch. 1 para. 15 in force at 31.3.2005, see reg. 1(2)

16.  The award to be made by the arbiter shall be final and binding on the parties and any persons claiming under them. S

Commencement Information

I16 Sch. 1 para. 16 in force at 31.3.2005, see reg. 1(2)

17.  The arbiter may correct in an award any clerical mistake or error arising from any accidental slip or omission. S

Commencement Information

I17 Sch. 1 para. 17 in force at 31.3.2005, see reg. 1(2)

18.  Where the arbiter is 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 arbiter must furnish such a statement. S

Commencement Information

I18 Sch. 1 para. 18 in force at 31.3.2005, see reg. 1(2)

19.  The expenses of and incidental to the arbitration and award shall be in the discretion of the arbiter, who may direct to and by whom and in what manner those expenses or any part thereof are to be paid, and the expenses shall be subject to taxation by the auditor of the sheriff court on the application of any party, but that taxation shall be subject to review by the sheriff. S

Commencement Information

I19 Sch. 1 para. 19 in force at 31.3.2005, see reg. 1(2)

20.—(1) The arbiter shall, in awarding expenses, take into consideration– S

(a) the reasonableness or unreasonableness of the claim of any party, whether in respect of amount or otherwise;

(b) any unreasonable demand for particulars or refusal to supply particulars; and

(c) generally all the circumstances of the case.

(2) The arbiter may disallow any expenses which the arbiter considers to have been incurred unnecessarily, including the expenses of any witness whom the arbiter considers to have been called unnecessarily.

Commencement Information

I20 Sch. 1 para. 20 in force at 31.3.2005, see reg. 1(2)

21.  It shall not be lawful to include in the expenses of and incidental to the arbitration and award, or to charge against any of the parties, any sum payable in respect of remuneration or expenses to any person appointed by the arbiter to act as clerk or otherwise to assist the arbiter in the arbitration unless such appointment was made after submission of the claim and answers to the arbiter and with either the consent of the parties to the arbitration or the sanction of the sheriff. S

Commencement Information

I21 Sch. 1 para. 21 in force at 31.3.2005, see reg. 1(2)

22.  The arbiter may at any stage of the proceedings, and shall, if so directed by the sheriff (which direction may be given on the application of any party), state a case for the opinion of the sheriff on any questions of law arising in the course of the arbitration and the opinion of the sheriff on any case shall be final. S

Commencement Information

I22 Sch. 1 para. 22 in force at 31.3.2005, see reg. 1(2)

23.  Where an arbiter has committed any misconduct, the sheriff may remove that arbiter. S

Commencement Information

I23 Sch. 1 para. 23 in force at 31.3.2005, see reg. 1(2)

24.  Where an arbiter has committed any misconduct, or an arbitration or award has been improperly procured, the sheriff may set the award aside. S

Commencement Information

I24 Sch. 1 para. 24 in force at 31.3.2005, see reg. 1(2)

25.  Any amount paid in respect of the remuneration of an arbiter by any party to the arbitration in excess of amount, if any, directed by the award to be paid by that person in respect of the expenses of the award shall be recoverable from the other party or jointly from the other parties. S

Commencement Information

I25 Sch. 1 para. 25 in force at 31.3.2005, see reg. 1(2)

26.  The Arbitration (Scotland) Act 1894 shall not apply to any arbitration carried out under this Schedule. S

Commencement Information

I26 Sch. 1 para. 26 in force at 31.3.2005, see reg. 1(2)

PART III S APPORTIONMENTS CARRIED OUT BY THE SCOTTISH LAND COURT

27.  The provisions of the Scottish Land Court Act 1993 with regard to the Scottish Land Court shall apply for the purpose of the determination of any matter which they are required, in terms of paragraph 1, to determine, in like manner as those provisions apply for the purpose of the determination by the Land Court of matters referred to them under that Act. S

Commencement Information

I27 Sch. 1 para. 27 in force at 31.3.2005, see reg. 1(2)

28.  Where an apportionment or prospective apportionment is to be dealt with by the Scottish Land Court, the party making application to that Court shall notify the Scottish Ministers in writing of the application within fourteen days of its being lodged with the Court. S

Commencement Information

I28 Sch. 1 para. 28 in force at 31.3.2005, see reg. 1(2)

29.  Where, in terms of a notice given by the Scottish Ministers under regulation 12(2), an apportionment or prospective apportionment is to be carried out by the Scottish Land Court, any fee payable by the Scottish Ministers to the Court shall be recoverable by them as a debt due from the other parties to the case jointly and severally. S

Commencement Information

I29 Sch. 1 para. 29 in force at 31.3.2005, see reg. 1(2)

30.  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 and the Scottish Ministers shall be entitled to be a party where the apportionment follows on a notice given by them under regulation 12(2). S

Commencement Information

I30 Sch. 1 para. 30 in force at 31.3.2005, see reg. 1(2)

Regulation 34(2)

SCHEDULE 2 S KEEPING AND RETENTION OF RECORDS

Records to be kept by purchasers S

1.  In respect of each quota year, a purchaser shall keep, and retain for the relevant period, records comprising– S

(a) details of each wholesale producer making deliveries to the purchaser, including–

(i) the name and address of the wholesale producer,

(ii) the wholesale quota available to that wholesale producer at the beginning and end of each quota year,

(iii) the representative fat content (butterfat base) of the milk delivered by that wholesale producer, and

(iv) the total wholesale quota available for all the wholesale producers who make deliveries to the purchaser and the weighted butterfat of that quota;

(b) details, in terms of each delivery and each month, of the quantities of milk which each wholesale producer has delivered to the purchaser;

(c) details of the cumulative total of the quantities delivered to the purchaser each month by all wholesale producers;

(d) details of the average fat content of deliveries per month of each wholesale producer;

(e) details of the weighted average fat content of the cumulative total referred to in sub paragraph (c);

(f) a list of purchasers and other undertakings which supply treated or processed milk or milk products to that purchaser;

(g) details, in terms of each such purchaser or undertaking and each month, of the quantities supplied that purchaser by that purchaser or undertaking;

(h) details of the use to which milk and milk products collected from that purchaser has been put;

(i) records of individual deliveries and supplies and accompanying collection documents identifying each delivery or supply by wholesale producer, purchaser or other undertaking; and

(j) all books, registers, accounts, correspondence, commercial data, vouchers and supporting documents relating to the business activities of the purchaser.

Commencement Information

I31 Sch. 2 para. 1 in force at 31.3.2005, see reg. 1(2)

Records to be kept by producers S

2.—(1) In respect of each quota year, a direct seller shall keep, and retain for the relevant period, records comprising– S

(a) details of the quota held by that direct seller, including any permanent and temporary transfers of quota if appropriate;

(b) the herd records (comprising number and breed of cows and calved heifers in dairy herd with details of number of cows in milk and number of cows dry) of that direct seller;

(c) daily records of milk produced;

(d) invoices of any feed purchased;

(e) details recorded as a result of the participation of that direct seller in the National Milk Recording Scheme or other similar recording scheme;

(f) details of quantities of milk processed, methods of processing and quantities and type of milk products produced;

(g) details of quantities of whole milk used in the production of milk products (with conversion rates applied);

(h) details of quantities and types of milk and milk products which are produced and used on the holding of that direct seller for stock feeding and human consumption;

(i) details of quantities and types of milk and milk products which are disposed of (other than under paragraph (h)) or wasted on the holding;

(j) without prejudice to paragraph (i), details of any milk or milk products which–

(i) were transported from the holding of that direct seller to be destroyed elsewhere for sanitary purposes pursuant to a decision of the Scottish Ministers,

(ii) were so destroyed, and

(iii) as a consequence, are to be excluded from the levy calculation,

including information about the reason why such destruction was necessary and details of where, when and how such destruction occurred;

(k) details of quantities and types of milk and milk products sold directly to the consumer or transferred free of charge from the holding of that direct seller (including milk and milk products sold on the holding of that direct seller);

(l) details of quantities and types of milk and milk products purchased, exchanged or otherwise received by that direct seller, and records relating to their disposal; and

(m) details of stocks of milk and milk products held by that direct seller on a monthly basis.

(2) Where a direct seller also delivers milk or milk products to a purchaser, that direct seller shall, in respect of each quota year, also keep, and retain for the relevant period, records comprising–

(a) details of quantities and types of milk and milk products delivered by that direct seller and the name and address of any purchaser involved;

(b) the payment slips issued in respect of any such purchaser; and

(c) where there is a discrepancy between the payment slip of a purchaser and the relevant tanker receipt, that tanker receipt.

Commencement Information

I32 Sch. 2 para. 2 in force at 31.3.2005, see reg. 1(2)

3.  A wholesale quota holder who makes deliveries to a purchaser shall, in respect of each quota year, keep, and retain for the relevant period, records, comprising– S

(a) details of the quota held by that wholesale quota holder, showing permanent and temporary transfers of quota if appropriate;

(b) the herd records of that wholesale quota holder (comprising number and breed of cows and calved heifers in dairy herd with details of number of cows in milk and number of cows dry);

(c) daily records of milk produced;

(d) invoices of any feed purchased;

(e) details of quantities of milk delivered by that wholesale quota holder, and the name and address of the purchaser involved;

(f) the payment slips issued in respect of any such purchaser;

(g) where there is a discrepancy between the payment slip of a purchaser and the relevant tanker receipt, that tanker receipt;

(h) details recorded as a result of the participation of that wholesale quota holder in the National Milk Recording Scheme or other similar recording scheme;

(i) details of quantities of milk produced and used on the holding of that wholesale quota holder for stock feeding and human consumption;

(j) details of quantities of milk which are disposed of (other than under sub paragraph (i)) or wasted on the holding;

(k) without prejudice to sub paragraph (j), details of any milk which–

(i) was transported from the holding of that wholesale quota holder to be destroyed elsewhere for sanitary purposes pursuant to a decision of the Scottish Ministers,

(ii) was so destroyed, and

(iii) as a consequence, is to be excluded from the levy calculation,

including information about the reason why such destruction was necessary and details of where, when and how such destruction occurred;

(l) details of quantities and types of milk and milk products transferred free of charge from the holding of that wholesale quota holder;

(m) details of quantities of milk purchased, swapped or otherwise received, and records relating to its disposal; and

(n) details of stocks of milk produced on the holding of that wholesale quota holder.

Commencement Information

I33 Sch. 2 para. 3 in force at 31.3.2005, see reg. 1(2)

Records to be kept by any person undertaking butterfat testing in a laboratory S

4.  Any person undertaking butterfat testing for a purchaser in a laboratory shall keep, and retain for the relevant period, records comprising details of all samples of milk analysed, showing– S

(a) the time and date the sample was taken on the holding;

(b) the time and date of that person’s receipt of the sample;

(c) the time and date of the analysis;

(d) the identity of the purchaser concerned;

(e) the identity of the wholesale producer concerned (by name or reference number);

(f) the butterfat content of each sample recorded to two decimal places;

(g) the method of analysis used; and

(h) the results of any repeat analyses undertaken.

Commencement Information

I34 Sch. 2 para. 4 in force at 31.3.2005, see reg. 1(2)

Records to be kept by hauliers S

5.  Any haulier collecting milk or milk products on behalf of a purchaser shall keep, and retain for the relevant period, records comprising details of all quantities of milk or milk products so collected, showing– S

(a) the time and date of collection from each wholesale producer;

(b) the time and date of sampling of the milk or milk products of each wholesale producer;

(c) the identity of the wholesale producer concerned;

(d) the volume of milk collected (including a copy of the tanker receipt in the cases referred to in paragraphs 2(2)(c) and 3(g));

(e) the identity of the purchaser concerned;

(f) the volume of milk delivered, and the name and address of each reception site;

(g) the sources of all the milk carried on each tanker; and

(h) details of any malfunction in any equipment used by that haulier.

Commencement Information

I35 Sch. 2 para. 5 in force at 31.3.2005, see reg. 1(2)

Records to be kept by processors S

6.  Any processor in receipt of milk or milk products for processing or treating shall keep, and retain for the relevant period, records comprising details of all quantities of milk or milk products received, showing– S

(a) the time and date of their delivery;

(b) their volume or weight per delivery (including copies of tanker receipts and weighbridge tickets in the cases referred to in paragraphs 2(2)(c) and 3(g));

(c) the name and address of the haulier concerned;

(d) the name and address of their vendor or donor;

(e) the quantities of milk processed, types of processing undertaken, and quantities and types of milk products produced;

(f) the quantities of milk used in the production of milk products (if not ascertainable from the information provided under sub paragraph (e));

(g) the calculated stocks of milk and milk products held by that processor at the end of each month and details of actual stocks physically held as at 31st March each year; and

(h) the quantities of milk or milk products sold or otherwise disposed of, with the date of supply or disposal, and the names and addresses of the buyers or recipients concerned.

Commencement Information

I36 Sch. 2 para. 6 in force at 31.3.2005, see reg. 1(2)

Records to be kept by persons buying, selling or supplying milk or milk products obtained directly from a producer or purchaser S

7.  Any person who in the course of a business buys, sells or supplies milk or milk products obtained directly from a producer or purchaser shall keep, and retain for the relevant period, records comprising details of all quantities of milk or milk products received, showing– S

(a) the time and date of their receipt;

(b) their volume or weight per delivery (including copies of tanker receipts or invoices in the cases referred to in paragraphs 2(2)(c) and 3(g));

(c) the name and address of the haulier concerned;

(d) the name and address of their vendor or donor;

(e) the quantities of milk or milk products sold or supplied, with the date of sale or supply, and the names and addresses of the buyers or recipients concerned other than the consumers of such milk or milk products; and

(f) the quantities of milk or milk products returned to the producer or purchaser unsold or unused, and the date of that return.

Commencement Information

I37 Sch. 2 para. 7 in force at 31.3.2005, see reg. 1(2)

8.  In this Schedule, in relation to any records– S

“the relevant period” means the remainder of the year of record and a period of at least three years thereafter; and

“the remainder of the year of record” means, following the making of the records, the remainder of the year in which they were made.

Commencement Information

I38 Sch. 2 para. 8 in force at 31.3.2005, see reg. 1(2)