2009 No. 376
The Rural Payments (Appeals) (Scotland) Regulations 2009
Made
Laid before the Scottish Parliament
Coming into force
The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 M1 and all other powers enabling them to do so.
Citation, commencement and extent1
1
These Regulations may be cited as the Rural Payments (Appeals) (Scotland) Regulations 2009 and shall come into force on 20th November 2009.
2
These Regulations extend to Scotland only.
Interpretation2
1
In these Regulations except where the context otherwise requires—
“applicant” means the person to whom a relevant decision is directed;
“Commission Regulation 2419/2001” M2 means Commission Regulation (EC) No. 2419/2001 laying down detailed rules for applying the integrated administration and control system for certain community aid schemes, amended by Commission Regulation (EC) No. 2550/2001 and Commission Regulation (EC) No. 118/2004;
“Commission Regulation 2237/2003” M3 means Commission Regulation (EC) No. 2237/2003 laying down detailed rules for the application of certain support schemes provided for in Title IV of Council Regulation (EC) 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers;
“Commission Regulation 795/2004” M4 means Commission Regulation (EC) No. 795/2004 laying down detailed rules for the implementation of the single payment scheme 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, as amended by Commission Regulations (EC) Nos. 1974/2004, 394/2005, 606/2005, 1085/2005, 1701/2005, 2183/2005, 658/2006, 1134/2006, 1291/2006, 2002/2006, 373/2007, 411/2007, 608/2007, 1522/2007, 319/2008 and 1124/2008;
“Commission Regulation 796/2004” M5 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 Regulations (EC) No. 1782/2003, 479/2008 and 73/2009 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers, as amended by Commission Regulations (EC) No. 239/2005, 436/2005, 1954/2005, 2184/2005, 263/2006, 489/2006, 659/2006, 2025/2006, 381/2007, 972/2007, 1550/2007, 319/2008, 145/2008, 1124/2008, 1266/2008 and 380/2009;
“Council Regulation 3508/92” M6 means Council Regulation (EEC) No. 3508/92 establishing an integrated administration and control system for certain Community aid schemes, amended by Council Regulation (EC) No. 165/1994, Council Regulation (EC) No. 3233/1994, Council Regulation (EC) No. 3235/1994, Council Regulation (EC) No. 3072/1995, Council Regulation (EC) No. 1577/96, Council Regulation (EC) No. 2466/96, Commission Regulation (EC) No. 613/97, Council Regulation (EC) No. 820/1997, Council Regulation (EC) No. 1036/1999, Council Regulation (EC) No. 1593/2000 and Commission Regulation (EC) No. 495/2001;
“Council Regulation 1782/2003” M7 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. 2019/1993, (EC) No. 1452/2001, (EC) No. 1453/2001, (EC) No. 1454/2001, (EC) No. 1868/1994, (EC) No. 1251/1999, (EC) No. 1254/1999, (EC) No. 1673/2000, (EEC) No. 2358/71 and (EC) No. 2529/2001, amended by Commission Regulations (EC) Nos. 118/2005, 2183/2005, 1156/2006, 552/2007, 1276/2007, 293/2008 and 674/2008 and Council Regulations (EC) Nos. 21/2004, 583/2004, 864/2004, 2217/2004, 247/2006, 319/2006, 953/2006, 1405/2006, 2011/2006, 2012/2006, 2013/2006, 1182/2007, 146/2008, 470/2008, 479/2008, 615/2008, 637/2008 and 674/2008;
“Council Regulation 73/2009” M8 means Council Regulation (EC) No. 73/2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No. 1290/2005, (EC) No. 247/2006, (EC) No. 378/2007 and repealing Regulation (EC) No. 1782/2003;
“decision letter” means the letter from the Scottish Ministers to the applicant notifying the applicant of the relevant decision;
“ESA Orders” means—
- a
the Environmentally Sensitive Areas (Loch Lomond) Designation Order 1992 M9;
- b
the Environmentally Sensitive Areas (Breadalbane) Designation Order 1992 M10;
- c
the Environmentally Sensitive Areas (Central Southern Uplands) Designation Order 1993 M11;
- d
the Environmentally Sensitive Areas (Western Southern Uplands) Designation Order 1993 M12;
- e
the Environmentally Sensitive Areas (Cairngorms Straths) Designation Order 1993 M13;
- f
the Environmentally Sensitive Areas (Central Borders) Designation Order 1993 M14;
- g
the Environmentally Sensitive Areas (Stewartry) Designation Order 1993 M15;
- h
the Environmentally Sensitive Areas (Argyll Islands) Designation Order 1993 M16;
- i
the Environmentally Sensitive Areas (Machair of the Uists and Benbecula, Barra and Vatersay) Designation Order 1993 M17;or
- j
the Environmentally Sensitive Areas (Shetland Islands) Designation Order 1993 M18;
- a
“holding” has the same meaning as in Council Regulation No. 1782/2003 or Council Regulation No. 73/2009;
“IACS scheme” means—
- a
one of the Community schemes set out in Article 1.1 of Council Regulation 3508/92 M19;
- b
one of the Community schemes specified in Article 17 of Council Regulation 1782/2003; or
- c
one of the Community schemes specified in Article 14 of Council Regulation 73/2009;
- a
“IACS year” means a period of 12 months commencing on 16th May;
“Land Court” means the Scottish Land Court;
“the 2004 Regulations” means the Agricultural Subsidies (Appeals) (Scotland) Regulations 2004 M20; and
“relevant decision” means a decision specified in any of the paragraphs of the Schedule.
2
Any reference in these Regulations to an applicant or applicant appealing to the Land Court includes a reference to any successor, executor, trustee in sequestration, receiver or liquidator of such an applicant.
Application in relation to IACS matters3
Decisions of the Scottish Ministers of the kinds referred to in paragraphs 1 to 13 of the Schedule apply in relation to holdings which are administered by them in accordance with the Common Agricultural Policy Single Payment and Support Schemes (Integrated Administration and Control System) Regulations 2005 M21.
Decisions amenable to review4
An applicant may apply to the Scottish Ministers for a review of a relevant decision in accordance with regulation 5.
Application for Review5
1
An application for a review of a relevant decision may be made no later than 30 days following the date of the decision letter.
2
An application for a review must be in writing and specify—
a
the name and address of the applicant and, where relevant, the details of the applicant's representative;
b
the scheme in relation to which the review is sought and, in relation to an IACS Scheme, the IACS year to which the relevant decision referred;
c
the relevant decision and its date;
d
the change sought to the relevant decision; and
e
the reasons for seeking the change to the relevant decision.
Procedure at Review6
1
Where an application is made under regulation 5, the Scottish Ministers must review the relevant decision.
2
The Scottish Ministers must provide the applicant with an opportunity of being heard at a review meeting within 60 days of receipt of the application on any matter relevant to the application.
3
The Scottish Ministers must intimate the date of the review meeting to the applicant in writing.
4
Representations made under paragraph (2) may be made by the applicant or by a representative of the applicant.
5
For the purposes of this regulation a review meeting may be conducted in person or by use of telephone or video conference facilities.
Decision and Report7
1
Following review of a relevant decision in accordance with regulation 6, the Scottish Ministers may—
a
confirm their decision;
b
amend or alter their decision; or
c
revoke their decision in its entirety and substitute a new decision.
2
The Scottish Ministers must issue their decision under paragraph (1) in a written report.
3
A written report must set out the following—
a
the decision of the Scottish Ministers following the review;
b
the requirements of the scheme in respect of which the claim was made;
c
where appropriate, the facts relied upon by the Scottish Ministers as showing that the requirements were not met;
d
where appropriate, the matters (in fact or law) which are understood to remain in dispute.
4
A written report must be sent by recorded delivery post to the applicant before the expiry of the period of 60 days beginning on the date intimated to the applicant under regulation 6(3).
Appeal to the Scottish Land Court8
1
The applicant may appeal against a decision under regulation 7(1) above on any issue of fact or law to the Land Court.
2
An appeal under paragraph (1) must be made within 30 days of receipt of the written report.
3
Where Scottish Ministers have not sent a written report within the period of 60 days referred to in regulation 7(4), the applicant may instead appeal against the relevant decision on any issue of fact or law to the Land Court.
4
An appeal under paragraph (3) must be made within 30 days of the date on which the period of 60 days referred to in regulation 7(4) expired.
5
An appeal shall be in such form as may be prescribed from time to time by the Land Court.
6
An appeal shall, so far as possible, specify—
a
the grounds of appeal;
b
what finding of the Scottish Ministers is challenged;
c
any facts the applicant seeks to rely on;
d
the arguments to be advanced in support of the appeal; and
e
brief details of the legislative provisions or judicial authorities to be referred to in relation to the appeal.
7
An appeal under paragraph (1) must be accompanied by the decision letter, the application for review and the written report.
8
An appeal under paragraph (3) must be accompanied by the decision letter, the application for review and evidence of the date of the review meeting intimated to the applicant under regulation 6(3).
Procedure in the Scottish Land Court9
1
Without prejudice to the power of the Land Court to determine its own procedure, it may—
a
where a written report has not been sent in accordance with regulation 7(4), require Scottish Ministers to submit a written report.
b
grant leave to the Scottish Ministers to amend the written report;
c
relieve the appellant of any of the obligations set out in regulation 8(6);
d
require such additional information or submissions to be submitted by the parties to the appeal as it thinks fit.
2
In determining an appeal, the Land Court may—
a
confirm the decision of the Scottish Ministers;
b
amend or alter that decision in any respect which it considers appropriate; or
c
substitute for that decision any decision which it considers appropriate,
and any such determination of the Land Court is binding upon the Scottish Ministers and the appellant.
3
Where an appeal is made under regulation 8(3), paragraph (2) shall apply in relation to the relevant decision as it applies in relation to a decision under regulation 7(1).
4
Any party to a matter determined by the Land Court by virtue of these Regulations may appeal to the Court of Session against the determination on a question of law.
Expenses10
Without prejudice to paragraph 15 of Schedule 1 to the Scottish Land Court Act 1993 M22, the Land Court may in considering an award of expenses against any party to an appeal have regard to the conduct of that party during the review process as a whole.
Application, consequential amendments, savings and revocations11
1
Nothing in these Regulations has effect in relation to any relevant decision in respect of which the date of the decision letter is before 20th November 2009.
2
In each of—
a
regulation 20(2) of the Less Favoured Area Support Scheme (Scotland) Regulations 2001 M23;
b
regulation 18(2) of the Rural Stewardship Scheme (Scotland) Regulations 2001 M24;
c
regulation 22(2) of the Less Favoured Area Support Scheme (Scotland) Regulations 2002 M25;
d
regulation 24(2) of the Less Favoured Area Support Scheme (Scotland) Regulations 2003 M26; and
e
regulation 25(2) of the Organic Aid (Scotland) Regulations 2004 M27,
for “Agricultural Subsidies (Appeals)
(Scotland) Regulations 2004”, substitute “
the Rural Payments (Appeals)
(Scotland) Regulations 2009
”
.
3
The 2004 Regulations, as in force immediately before 20th November 2009, continue to apply and have effect in relation to any review or appeal that may be made in relation to—
a
a decision specified in regulation 4 of those Regulations; or
b
a decision issued following such a review,
where the relevant decision specified in regulation 4 was contained in a letter dated before the 20th November 2009.
4
Subject to paragraph (3), the 2004 Regulations and the Agricultural Subsidies (Appeals) (Scotland) Amendment Regulations 2005 M28 are hereby revoked.
SCHEDULERelevant Decisions
1
A decision by the Scottish Ministers under or in accordance with Commission Regulation 2419/2001 (including anything done in accordance with Article 47(2) of that Regulation) to refuse, reduce or recover (in whole or in part) payment under an IACS Scheme for any IACS year.
2
A decision by the Scottish Ministers under or in accordance with Commission Regulation 2237/2003 to postpone, refuse, reduce or recover (in whole or in part) payment under an IACS Scheme for any IACS year.
3
A decision by the Scottish Ministers under or in accordance with Council Regulation 1782/2003, Council Regulation 73/2009 of Commission Regulation 795/2004 or Commission Regulation 796/2004 to refuse, reduce or recover (in whole or in part) any payment under an IACS scheme for any IACS year insofar as the grounds of appeal have not already formed part of grounds of appeal under any of paragraphs (4) to (10) below.
4
A decision by the Scottish Ministers under Article 12 of Commission Regulation 795/2004 in accordance with Title III of Council Regulation 1782/2003 to refuse, reduce or withdraw (in whole or in part) any payment entitlement (including any set-aside or special entitlement).
5
A decision by the Scottish Ministers under Article 40 of Council Regulation 1782/2003 to refuse (in whole or in part) a request to have an applicant's reference amount calculated on the basis that the applicant's production was adversely affected by force majeure or exceptional circumstances or agri-environment commitments.
6
A decision by the Scottish Ministers under or in accordance with Article 42 of Council Regulation 1782/2003 to refuse or withdraw entirely any national reserve entitlement in relation to an application.
7
A decision by the Scottish Ministers under or in accordance with Council Regulation 1782/2003, Commission Regulation 795/2004, Commission Regulation 796/2004 or Council Regulation 73/2009 to refuse, reduce or withdraw (in whole or in part) any other payment entitlement.
8
A decision by the Scottish Ministers under or in accordance with Council Regulation 1782/2003, Commission Regulation 795/2004 or Council Regulation 73/2009 to refuse the transfer (in whole or in part) of any payment entitlement.
9
10
Any decision by the Scottish Ministers under or in accordance with Council Regulation 1782/2003, Commission Regulation 795/2004, Commission Regulation 796/2004, Commission Regulation 2237/2003 or Council Regulation 73/2009 in respect of part of a holding outwith Scotland or legislation implementing any of those instruments in any other part of the United Kingdom.
11
A decision by the Scottish Ministers under regulation 13 of the Less Favoured Area Support Scheme (Scotland) Regulations 2001 M30 or under regulation 15 of the Less Favoured Area Support Scheme (Scotland) Regulations 2002 M31 or under regulation 17 of the Less Favoured Area Support Scheme (Scotland) Regulations 2003 M32 or under regulation 16 of the Less Favoured Area Support Scheme (Scotland) Regulations 2004 M33 or under regulation 16 of the Less Favoured Area Support Scheme (Scotland) Regulations 2005 M34 to withhold or recover (in whole or in part) payment of less favoured area support.
12
A decision by the Scottish Ministers under regulations 9(9)(c), (10) or (12), 10(4), 11(2) or 13(3) to (6) of the Less Favoured Area Support Scheme (Scotland) Regulations 2003 M35.
F113
A decision of the Scottish Ministers under regulation 4(1)(b), 5, 7(1), 9(4)(b), 10(7), 11(4) or 16 of the Less Favoured Area Support Scheme (Scotland) Regulations 2007.
F113A
A decision by the Scottish Ministers under regulation 3(1)(b), 3(2), 3(3), 4, 5(3), 9(4)(a), 9(7), 10(3) or 15 of the Less Favoured Area Support Scheme (Scotland) Regulations 2010.
14
A decision by the Scottish Ministers to postpone, reduce or withhold (in whole or in part) any payment of grant under, or recover (in whole or in part) any payment under or terminate participation in, the Farm Woodland Scheme 1988 M36, in terms of paragraph 14 of that Scheme.
15
A decision by the Scottish Ministers to postpone, reduce or withhold (in whole or in part) any payment of grant under, or recover (in whole or in part) any payment under or terminate participation in, the Farm Woodland Premium Scheme 1992 M37, in terms of paragraph 14 of that Scheme.
16
A decision by the Scottish Ministers to postpone, reduce or withhold (in whole or in part) any payment of grant under, or recover (in whole or in part) any payment under or terminate participation in, the Farm Woodland Premium Scheme 1997 M38, in terms of paragraph 14 of that Scheme.
17
A decision by the Scottish Ministers made under article 5D of any one of the ESA Orders that there has been a breach of any of the requirements of article 4 or 4A of the ESA Order to which that decision relates M39.
18
A decision by the Scottish Ministers to withhold (in whole or in part), or require the making of, payment under article 5(a) or under article 5A of one of the ESA Orders M40.
19
A decision by the Scottish Ministers under the Organic Aid (Scotland) Regulations 1994 M41, in terms of regulation 12 of those Regulations to withhold (in whole or in part) any grant due or recover (in whole or in part) any grant paid or require payment of a sum imposed by way of penalty.
20
A decision by the Scottish Ministers under the Organic Aid (Scotland) Regulations 2004 M42 to withhold or recover (in whole or in part) any payment in terms of regulation 20 of those Regulations.
21
A decision by the Scottish Ministers under the Habitats (Scotland) Regulations 1994 M43 to withhold (in whole or in part) any grant due or recover (in whole or in part) any grant paid or require payment of a sum imposed by way of penalty in terms of regulation 12 of those Regulations.
22
A decision by the Scottish Ministers under the Countryside Premium Scheme (Scotland) Regulations 1997 M44 to withhold (in whole or in part) any grant due or recover (in whole or in part) any grant paid or require payment of a sum in terms of regulation 12 of those Regulations.
23
A decision by the Scottish Ministers under the Rural Stewardship Scheme (Scotland) Regulations 2001 M45, to withhold (in whole or in part) any aid due or recover (in whole or in part) any aid paid or require payment of a sum in terms of those Regulations.
24
A decision by the Scottish Ministers to postpone, reduce or withhold (in whole or in part) any payment of grant under, or recover (in whole or in part) any payment under or terminate participation in, the SFGS Farmland Premium Scheme 2003 M46, in terms of paragraph 14 of that Scheme.
25
A decision by the Scottish Ministers under the Land Management Contracts (Menu Scheme) Regulations 2005 M47, to withhold any aid due or recover any aid paid (in whole or in part) or require payment of any sum in terms of those Regulations.
26
A decision by the Scottish Ministers under paragraph 8(2) or 12B of the Crofting Counties Agricultural Grants (Scotland) Scheme 1988 M48 to withhold any grant payable, or to recover any grant paid, made on or after 17th March 2008 in relation to an application being administered on that date under that Scheme.
27
A decision by the Scottish Ministers under paragraph 6(4) or (5), 11A(7) or 13(1) of the Crofting Counties Agricultural Grants (Scotland) Scheme 2006 not to pay a grant, to withhold any grant payable or to recover any grant paid (in whole or in part), or require payment of any sum, made on or after 17th March 2008 in connection with any application made under that Scheme.
28
A decision by the Scottish Ministers under the Rural Development Contracts (Rural Priorities) (Scotland) Regulations 2008 M49, to withhold any aid due or recover any aid paid (in whole or in part) or require payment of any sum in terms of those Regulations.
29
A decision by the Scottish Ministers under the Leader Grants (Scotland) Regulations 2008 M50 to withhold any aid due or recover any aid paid (in whole or in part) or require payment of any sum in terms of those Regulations.
30
A decision by the Scottish Ministers under the Rural Development Contracts (Land Managers Options) (Scotland) Regulations 2008 M51, to apply a reduction to any payment of aid or to withhold any aid due or recover any aid paid (in whole or in part) or require payment of any sum in terms of those Regulations.
31
A decision by the Scottish Ministers under the Land Managers Skills Development Grants (Scotland) Regulations 2008 M52, to apply a reduction to any payment of grant or to withhold any grant due (in whole or in part) or recover any grant paid (in whole or in part) or require payment of any sum in terms of those Regulations.
32
A decision by the Scottish Ministers under the Forestry Challenge Funds (Scotland) Regulations 2008 M53, to apply a reduction to any payment of grant or to withhold any grant due (in whole or in part) or recover any grant paid (in whole or in part) or require payment of any sum in terms of those Regulations.
33
A decision by the Scottish Ministers under the Agricultural Processing, Marketing and Co�??operation Grants (Scotland) Regulations 2008 M54, to apply a reduction to any payment of grant or to withhold any grant due (in whole or in part) or recover any payment of grant or require payment of any sum in terms of those Regulations.
1972 c.68; section 2(2) was amended by the Scotland Act 1998 (c.46), Schedule 8, paragraph 15(3). The functions conferred on a Minister of the Crown by section 2(2) were transferred, so far as within devolved competence, to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998.