2004 No. 518
The Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2004
Made
Laid before the Scottish Parliament
Coming into force
The Scottish Ministers in exercise of the powers conferred by section 2(2) of the European Communities Act 19721 and of all other powers enabling them in that behalf, hereby make the following Regulations:
Citation, commencement and extent1
1
These Regulations may be cited as the Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2004 and shall come into force on 1st January 2005.
2
These Regulations extend to Scotland only.
Interpretation2
1
In these Regulations—
“authorised person” means any person authorised by the Scottish Ministers to act in matters arising under these Regulations, the Council Regulation or the Commission Regulation;
“the Commission Regulation” 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 the Council Regulation2;
“control report” means a control report pursuant to Article 48 of the Commission Regulation, and “provisional control report” shall be a draft control report detailing all the information required in a control report;
“the Council Regulation” 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 and amending Regulations (EEC) No. 2019/93, (EC) No. 1452/2001, (EC) No. 1453/2001, (EC) No. 1454/2001, (EC) No. 1868/94, (EC) No. 1251/1999, (EC) No. 1254/1999, (EC) No. 1673/2000, (EEC) No. 2358/71 and (EC) No. 2529/20013, amended by Council Regulation (EC) No. 21/20044, Council Regulation (EC) No. 583/20045 and Council Regulation (EC) No. 864/20046;
“electronic communication” means an electronic communication as defined in the Electronic Communications Act 20007 which has been recorded and is consequently capable of being reproduced;
“farmer” has the same meaning as in Article 2(a) of the Council Regulation;
“growing season” means the growing season which ends on or before 15th October;
“holding” has the same meaning as in Article 2(b) of the Council Regulation;
“non compliance” has the same meaning as in Article 2(35) of the Commission Regulation;
“overgrazing” means grazing land with livestock or other animals in such numbers as to adversely affect the growth quality or species composition of vegetation (other than vegetation normally grazed to destruction) on that land to a significant degree;
“spring” means the period beginning on 1st March and ending on 31st May in any calendar year;
“the Scottish Environment Protection Agency” means the Scottish Environment Protection Agency established under section 20 of the Environment Act 19958;
“Scottish Natural Heritage” means Scottish Natural Heritage established under section 1 of the Natural Heritage (Scotland) Act 19919;
“site of special scientific interest” means land designated as a site of special scientific interest pursuant to section 28 of the Wildlife and Countryside Act 1981 or section 3(6) of the Nature Conservation (Scotland) Act 200410;
“the Uncultivated Land and Semi-Natural Areas Regulations” means the Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) (Scotland) Regulations 200211; and
“winter” means the period beginning on the day after harvest and ending on the last day of February in the following calendar year.
2
Other expressions used in these Regulations have, unless the context otherwise requires, the meaning they bear in the Council Regulation and the Commission Regulation.
3
Unless the context otherwise requires, any reference in these Regulations to a numbered paragraph or sub-paragraph is a reference to the paragraph so numbered in the regulation or Schedule to these Regulations, or to the sub-paragraph so numbered in the paragraph, in which that reference occurs.
4
Except in relation to a management regime, approval or consent under paragraphs 10(2), 11(4), 12(2)(a), 14, 15(1) or 16(1) of the Schedule to these Regulations, where this paragraph shall only apply if the farmer so consents, or has contacted the Scottish Ministers by way of an electronic communication in relation to an approval or consent, any reference in these Regulations to anything done in writing or produced in written form includes a reference to an electronic communication.
Designation3
The Scottish Ministers shall be the competent national authority for the purposes of providing the list of statutory management requirements and good agricultural and environmental condition required by Article 3(2) of the Council Regulation.
Good agricultural and environmental condition4
1
The standards of good agricultural and environmental condition referred to in Article 5 of the Council Regulation are specified in this regulation and the Schedule to these Regulations.
2
The land must be maintained in a condition that would make it reasonably practicable for an authorised person (and any person who may accompany an authorised person) to exercise any of the powers specified in regulation 6 as necessary to ascertain whether any of the statutory management requirements under Article 3 of the Council Regulation or any requirement of this regulation or the Schedule to these Regulations has been complied with.
Competent Control Authority5
1
The Scottish Ministers are designated as the Competent Control Authority for the purposes of the derogation in Article 42(2) of the Commission Regulation.
2
The Scottish Ministers may require the relevant authorities to carry out controls for the purposes of Article 9 and Chapters I and III of Title III of the Commission Regulation.
3
The relevant authorities shall–
a
send to the Scottish Ministers a provisional control report; and
b
for the purposes of Article 65 of the Commission Regulation where a non-compliance is established as a consequence of any kind of checks, notify the Scottish Ministers of any non-compliance established.
4
The Scottish Ministers shall pursuant to Article 48 of the Commission Regulation establish the final control report and where the Scottish Ministers are not the Paying Agency, send the control report to the Paying Agency.
5
In this regulation, “the relevant authorities” means–
a
Scottish Natural Heritage; and
b
the Scottish Environment Protection Agency.
Powers of authorised persons6
1
In addition to any existing power of entry an authorised person may exercise any of the powers specified in this regulation for the purpose of–
a
providing a control report or a provisional control report;
b
establishing whether there has been a non-compliance; or
c
ascertaining whether an offence under these Regulations has been or is being committed.
2
An authorised person shall, on producing, if so required, some duly authenticated document showing that person’s authority, have a right at all reasonable hours to enter any land (excluding any building used only as a dwelling) which is or which such person has reasonable cause to believe to be a holding occupied by, or in the possession of, a farmer or employee, agent, contractor or tenant of the farmer.
3
An authorised person may–
a
carry out any inquiries, checks, examinations and tests;
b
take any samples;
c
inspect all or any part of the land farmed, laid fallow or withdrawn from agricultural production by a farmer including land set-aside pursuant to Article 54 of the Council Regulation;
d
inspect any crops growing on that land or kept on it;
e
mark any animal or other thing for identification purposes;
f
have access to, inspect and copy any records (in whatever form they are held) kept under these Regulations, or remove such records to enable them to be copied; and
g
have access to, inspect and check the operation of, any computer and any associated apparatus or material which is or has been in use in connection with the records; and for this purpose may require any person having charge of, or otherwise concerned with the operation of, the computer, apparatus or material to afford the authorised person such assistance as may reasonably be required and, where a record is kept by means of a computer, may require the records to be produced in a form in which they can be taken away.
4
An authorised person entering any premises by virtue of this regulation may be accompanied by–
a
such other persons as the authorised person considers necessary; and
b
any representative of the European Commission acting for the purposes of the Council Regulation and the Commission Regulation.
5
If an authorised person enters any unoccupied premises the authorised person shall leave them as effectively secured against unauthorised entry as before those premises were entered.
Assistance to authorised persons7
A farmer or any employee, agent, contractor or tenant of a farmer shall give an authorised person such assistance as the authorised person may reasonably request so as to enable the authorised person to exercise any power conferred by regulation 6.
Offences and penalties8
1
Any person who–
a
intentionally obstructs an authorised person (or person accompanying an authorised person and acting under the authorised person’s instructions) in the exercise of a power conferred by regulation 6; or
b
without reasonable cause fails to comply with a request made under regulation 7,
shall be guilty of an offence.
2
Nothing in paragraph (1)(b) shall be construed as requiring any person to answer any question if to do so might incriminate that person.
3
A person guilty of an offence under paragraph (1) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Offences of bodies corporate9
1
Where an offence under these Regulations committed by a body corporate or a partnership is proved to have been committed with the consent or connivance of, or to have been 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 any such capacity (or in the case of a partnership, a partner or a person who was purporting to act as such), that officer or person as well as the body corporate or the partnership, as the case may be, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
2
Where the affairs of a body corporate are managed by its members, the provisions of paragraph (1) shall apply in relation to the acts and defaults of a member in connection with the members' functions of management as if the member were a director of the body corporate.
SCHEDULEGOOD AGRICULTURAL AND ENVIRONMENTAL CONDITION
PART IProtection of soil from erosion
Minimum soil cover
Winter soil cover and final seedbeds1
1
Subject to sub-paragraph (2), where land has been cropped with any crop which has been harvested a farmer must ensure that throughout the winter following that harvest such land–
a
is covered by the stubble of the harvested crop, by another crop or by grass; or
b
has a surface which is ploughed, or roughly cultivated (by the use of discs or tines or otherwise).
2
Sub-paragraph (1) does not apply to the extent that the prevailing agronomic or weather conditions and the condition of the composition of the soil of that land–
a
after harvest are such that compliance with that sub-paragraph would be detrimental to the use of the land for agricultural production; or
b
are such that they would indicate the planting of the following year’s crop before the end of winter.
3
Final seedbeds must only be created as shortly before the next crop is planted as possible to avoid significant evident erosion of the soil, taking account of prevailing weather conditions.
Minimum land management reflecting site-specific conditions
Wind erosion2
In relation to an area of land prone to wind erosion of the soil, a farmer must reduce the risk of soil loss during the spring by planting and maintaining on or in relation to that field, until a crop is established in that area,–
a
crop cover by another crop;
b
coarse seedbeds;
c
shelter belts; or
d
nurse crops to protect other crops grown on the land,
or taking other measures with equivalent effect to the establishment of one of those features.
Capping3
1
In any field which is prone to capping, or where there is capping, a farmer must form a coarse seedbed or ensure that the farmer breaks any cap which forms so as not to cause erosion.
2
In this paragraph, “capping” means soil particles which run together when wet, and dry so as to form a crust on the surface of the soil; and “cap” shall be construed accordingly.
Watercourses, watering points and feeding areas4
1
A farmer must prevent the erosion of the banks of watercourses, at watering points or feeding areas from overgrazing or heavy poaching by livestock except–
a
within 10m of a gateway; or
b
within 3m of a farm track necessarily used during wet-periods,
by reducing the livestock numbers on that land so as to cause the land to recover to the extent that the erosion is no longer significant by any time during the growing season in the calendar year following the date when that erosion first occurred.
2
In this paragraph “heavy poaching” means the cutting up of turf to a significant degree from trampling by livestock.
Field drains5
1
Subject to sub-paragraph (2), a farmer must maintain any functional field drainage systems on the land in a working state (whether by clearing ditches or otherwise).
2
Sub-paragraph (1) shall not apply where an environmental gain would be achieved by not maintaining the field drainage systems provided the farmer has, prior to that system ceasing to function, declared the environmental gain to be achieved–
a
in the farmer’s aid application under Article 22 of the Council Regulation; or
b
in any other prior application for a direct payment.
Muirburning6
A farmer must comply with the requirements of the Muirburn Code12.
PART IIPractices to maintain soil organic matter levels
Standards for crop rotations where applicable
Arable break crops or the application of organic materials7
1
On arable land cultivated for crop production, a farmer must either–
a
use suitable break crops to maintain organic matter in the soil in an arable rotation; or
b
optimise the application of organic materials to land by applying rates of application of the material calculated by reference to the requirements of the soil and crops grown.
2
Where a farmer uses the option specified at sub-paragraph (1)(b), the farmer must make and keep for 5 years a written record of the organic materials, and the quantities of those materials, applied to the land.
Arable stubble management
Incorporation of livestock manures8
Except on an area of land prone to wind erosion of the soil, a farmer must incorporate livestock manures spread on stubble into the soil within a period of 2 weeks after the date of spreading on a particular area of stubble.
PART IIIMaintenance of soil structure
Appropriate machinery use
Machinery use for planting or sowing9
1
A farmer must not carry out any cultivation using machinery if–
a
water is standing on the surface of the land; or
b
the soil is saturated to the point where water is clearly visible when pressure equivalent to a footprint is applied.
2
In this paragraph, “cultivation” means cultivation to prepare for planting or sowing.
PART IVMinimum level of maintenance and prevention of deterioration of habitats
Minimum livestock stocking rates or/and appropriate regimes
Undergrazing10
1
A farmer must not allow undergrazing of land.
2
Where undergrazing under sub-paragraph (1) is identified by an authorised person, and the Scottish Ministers form the opinion that the land is undergrazed, the farmer must in addition comply with the conditions of any written management regime imposed by the Scottish Ministers in relation to that land; and the Scottish Ministers must pass or send a copy of that management regime to the farmer.
3
In establishing a non-compliance for the purposes of sub-paragraph (1), land is not undergrazed unless it is not capable of recovering to the extent that the use of the land or the growth, structure or species composition of grazed vegetation is no longer detrimental to the environmental or agricultural interest of the land by any time during the growing season in the calendar year following the date when the land first became undergrazed.
4
In this paragraph, “undergrazing” means not using land fully or scrub or coarse vegetation becoming evident, where the use of the land or the growth, structure or species composition of grazed vegetation is detrimental to the environmental or agricultural interest of the land.
Overgrazing11
1
Subject to sub-paragraph (2), a farmer must not allow overgrazing of land.
2
Where a farmer can demonstrate to the satisfaction of the Scottish Ministers that appropriate action has been taken, they will be taken to have complied with sub paragraph (1) where the overgrazing was caused by–
a
an incursion of geese which could not be predicted;
b
an incursion of wild deer which could not be predicted, where in the case of an incursion of significant numbers of such deer the farmer can show that advice has been taken from the Deer Commission for Scotland and that advice has been acted upon; or
c
rabbits, where the farmer can show that appropriate control methods have been used.
3
In establishing a non-compliance for the purposes of sub-paragraph (1), land is not overgrazed unless it is not capable of recovering to the extent that the growth quality or species composition of vegetation is no longer adversely affected to a significant degree by any time during the growing season in the calendar year following the date when the land first became overgrazed.
4
Where overgrazing under sub-paragraph (1) is identified by an authorised person, and the Scottish Ministers form the opinion that the land is overgrazed, the farmer must in addition comply with the conditions of any written management regime imposed by the Scottish Ministers in relation to that land; and the Scottish Ministers must pass or send a copy of that management regime to the farmer.
Protection of permanent pasture
Pasture land of environmental or archaeological value12
1
A farmer must not plough up pasture land of high environmental or archaeological value (whether species-rich grassland, machair habitat, pastoral woodland, heather moorland or otherwise) without all of the necessary consents or approvals required to permit that ploughing up.
2
In this paragraph, “necessary consents or approvals” means–
a
the prior written consent of–
i
subject to sub-paragraph (3), Scottish Natural Heritage for land within a site of special scientific interest;
ii
the Scottish Ministers for land under an agri environment agreement in connection with support paid under Chapter VI of Title II of Council Regulation (EC) 1257/1999 as amended13;
b
approval under the Uncultivated Land and Semi-Natural Areas Regulations14;
c
any consent or approval by or under any other enactment which would prohibit that ploughing up.
3
This paragraph shall not apply where the necessary consent or approval would be the consent of Scottish Natural Heritage at a site of special scientific interest so designated by consequence of its status as a European site within the meaning of the Conservation (Natural Habitats, &c.) Regulations 199415.
Works on rough grazings and other semi-natural areas13
1
A farmer must not undertake new drainage works, plough up, clear, level, re-seed or cultivate rough grazings and other semi-natural areas without approval under the Uncultivated Land and Semi-Natural Areas Regulations.
2
In this paragraph, “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.
Pesticides, lime and fertiliser on rough grazings and other semi-natural areas14
A farmer must not apply pesticides, lime or fertiliser to rough grazings and other semi-natural areas, except–
a
as approved under the Uncultivated Land and Semi-Natural Areas Regulations;
b
in the case of lime or fertiliser, where no conservation damage to the diversity of species in those areas will result;
c
in the case of herbicides, to control injurious weeds to which the Weeds Act 195916 applies;
d
e
to control other plants, with the prior written consent of the Scottish Ministers.
Retention of landscape features
Boundary features15
1
A farmer must not remove, destroy or damage drystane or flagstone dykes, turf and stone-faced banks, walls, hedges and hedgerow trees, boundary trees or watercourses which serve as boundaries to agricultural land without the prior written consent of–
a
the Scottish Ministers; or
b
by or under any enactment, another authority as shall be notified to the farmer by the Scottish Ministers when the farmer applies to them for consent.
2
A farmer must not trim a hedge in the period beginning on 1st March and ending on 31st July, except only to the extent necessary for the purposes of road safety.
3
Written consent under sub-paragraph (1) is not required to widen field entrances to enable access for livestock or farm machinery.
4
In this paragraph “remove, destroy or damage” does not include–
a
trimming a hedge; or
b
lopping branches from hedgerow trees.
Landscape features16
1
A farmer must prevent the deterioration of non-productive landscape features on the land, including shelter belts, copses and ponds, except with the prior written consent of–
a
the Scottish Ministers; or
b
by or under any enactment, another authority as shall be notified to the farmer by the Scottish Ministers when the farmer applies to them for consent.
2
In this paragraph, “deterioration” means–
a
in relation to shelter belts and copses–
i
not maintaining functional stock proof fences around those features; or
ii
severe poaching where feeding or other livestock husbandry practices have occurred within those features because the farmer has not reduced the livestock numbers so as to cause the turf to recover to the extent that there is no longer a predominantly muddy surface by any time during the growing season in the calendar year following the date when that severe poaching first occurred; or
b
not maintaining ponds on the holding by allowing eutrophication or by drainage.
3
In this paragraph “severe poaching” means the cutting up of turf to the destruction of the underlying vegetation leading to a predominantly muddy surface from trampling by livestock.
Protected historic environment17
A farmer must not alter, or cause (whether directly or indirectly) the damage or destruction of the following buildings, gardens and landscapes without the relevant prior consent or permission, where that consent or permission is required to allow that alteration, damage or destruction:–
a
b
a listed building within the meaning of section 1(4) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 199721 without prior listed building consent under section 7 of that Act; or
c
a historic garden or designed landscape within the meaning of the Town and Country Planning (General Development Procedure) (Scotland) Order 199222 in respect of which consultation is required before grant of planning permission under article 15(1)(j)(iv) of that Order.
Avoiding the encroachment of unwanted vegetation on agricultural land
Encroachment of vegetation18
1
Subject to sub-paragraph (2), a farmer must maintain land in a condition where vegetation does not encroach onto the land to the point that the land is not capable of
a
being used for the production of agricultural products; or
b
being put in that condition by any time during the growing season in the calendar year following the date when the encroachment occurred.
2
The requirement in sub-paragraph (1) does not apply–
a
to the encroachment of native species in the case of–
i
the recolonisation of trees across a native woodland boundary;
ii
the recolonisation of gorse, birch and juniper sub-species to the extent that it forms an area of mixed habitats; or
iii
the reversion of land to wet grassland or wetland; or
b
where there is no degradation of the environmental and agricultural value of the land and the farmer has prior to that encroachment declared any environmental gain to be achieved which is relied on under this paragraph–
i
in the farmer’s aid application under Article 22 of the Council Regulation; or
ii
in any other prior application for a direct payment.
(This note is not part of the Regulations)