The Set-Aside (Amendment) Regulations 1990

Title and Commencement

1.  These Regulations may be cited as the Set-Aside (Amendment) Regulations 1990, and shall come into force on 24th August 1990.

Interpretation

2.  In these Regulations “the principal Regulations” means the Set-Aside Regulations 1988(1).

Amendment of the principal Regulations

3.  The principal Regulations shall be amended in accordance with the following provisions of these Regulations.

Definitions

4.  In regulation 2(1) of the principal Regulations–

(a) before the definition of “agriculture” there shall be inserted the following definition:

““Agricultural Land Tribunal” means an Agricultural Land Tribunal established under Part V of the Agriculture Act 1947(2);”;

(b) in the definition of “designated maps”–

(i) in sub-paragraph (a), for the address “Great Westminster House, Horseferry Road, London, SW1P 2AE” there shall be substituted the following address “Ergon House, 17 Smith Square, London, SW1P 3HX”; and

(ii) in sub-paragraph (c), for the address “Chesser House, Gorgie Road, Edinburgh EH11 3AW” there shall be substituted the following address “Pentland House, 47 Robb’s Loan, Edinburgh EH14 1TW”;

(c) after the definition of “eligible person” there shall be inserted the following definitions:

““fallow land” means permanent fallow or rotational fallow;”;

““grazed fallow” means fallow land grazed extensively by livestock;”;

(d) after the definition of “less-favoured area” there shall be inserted the following definition:

• ““livestock” includes any creature kept for the production of food, wool, skins, or fur or for the purpose of its use in farming the land or in the carrying on in relation to land of any agricultural activity;”;

(e) in the definition of “the set-aside obligations”, in paragraph (b), after “7(1),” there shall be inserted “7(2),”;

(f) in the definition of “tenant”, in paragraph (a)(ii), after “2(1)” there shall be inserted “or section 3(1)”;

(g) after the definition of “tenant” there shall be inserted the following definition:

““vernacular buildings” means buildings traditionally found in the locality;”;

(h) after the definition of “the Woodland Grant Scheme” there shall be inserted the following definition:

• ““year” means, except for the purposes of the definitions of “the set-aside period” and “tenant”, a period of 12 months commencing on 1st October.”.

Aid for set aside of arable land

5.  In regulation 3 of the principal Regulations:

(a) for paragraph (1)(b) there shall be substituted the following sub-paragraph:

“(b) to use the set-aside area for one of the following–

(i) permanent fallow;

(ii) rotational fallow;

(iii) grazed fallow (subject to regulation 7A);

(iv) woodland;

(v) non-agricultural purposes;

(vi) a combination of any two or more of (iii), (iv) and (v);

(vii) a combination of any two or more of (i), (ii), (iv) and (v); and”

(b) for sub-paragraph (b) of paragraphs (2) and (3) there shall be substituted in each case the following sub-paragraph:

“(b) to use that additional set-aside area for one of the purposes set out in paragraph 1(b)(ii)–(vi) above or a combination of any two or more of (ii), (iv) and (v), provided that–

(i) if he has undertaken to use any land for either of the purposes set out in paragraph 1(b)(i) or

(ii) he shall undertake not to use that additional set-aside area for the purposes set out in paragraph 1(b)(iii) or (vi); (ii) if he has undertaken to use any land for the purpose set out in paragraph 1(b)(iii) he shall undertake not to use that additional set-aside area for the purposes set out in paragraph 1(b)(i) or (ii), or a combination of (ii) and (iv), (ii) and (v) or (ii), (iv) and (v); and”.

Applications for aid

6.  In regulation 5(1) of the principal Regulations:

(a) at the end of sub-paragraph (d) there shall be inserted “; and”;

(b) after sub-paragraph (d) there shall be inserted the following sub-paragraph:

“(e) where an applicant proposes to use set-aside land for grazed fallow, details of the number of each type of livestock kept in the reference period on the holding of which the land he proposes to set aside for grazed fallow formed part and the amount of feed required by them in the reference period.”.

Restriction on acceptance of applications for aid

7.  In regulation 6 of the principal Regulations, in paragraph (2), for the words “or rotational fallow” there shall be substituted the words “, rotational fallow or grazed fallow”.

Requirements in relation to use for fallow

8.  For regulation 7 of the principal Regulations there shall be substituted the following regulation:

“7.— (1) A beneficiary whose undertaking takes effect on or after 1st October 1990 or who, in accordance with regulation 10, terminates part of the undertakings given by him shall observe in relation to any land which he has undertaken to set aside for permanent fallow or rotational fallow the requirements set out in paragraphs 1(a), 2, 3, 4(a) and 5 to 14 of Schedule 2.

(2) A beneficiary whose undertaking takes effect before 1st October 1990 may elect before 1st October 1990 to observe in relation to any land which he has undertaken to set aside for permanent fallow or rotational fallow the requirements set out in paragraphs 1(a), 2, 3, 4(a) and 5 to 14 of Schedule 2 but shall, if he does not so elect, observe in relation to that land the requirements set out in paragraphs 1(b), 2, 3, 4(b), 5 to 12, 13 in so far as it relates to the features listed in sub-paragraphs (a) and (b), and 14 of Schedule 2.

(3) Where any set-aside land is used for rotational fallow, the beneficiary shall, before 1st October in each year of the set-aside period, notify the appropriate Minister of the location of the area of set-aside land to be used for that purpose in that year.

(4) Where a beneficiary has undertaken to use any set-aside land for rotational fallow, and provided that he observes the requirements set out in paragraphs 1(a), 2, 3, 4(a) and 5 to 14 of Schedule 2–

(a) subject to sub-paragraph (b), he may in any year alter the area of the land which he undertook to set aside for rotational fallow if the amount by which he increases or reduces that area does not:

(i) exceed 10 per cent of the area of land which he undertook to set aside for rotational fallow, or

(ii) reduce the area of set-aside land below 20 per cent of the relevant arable land on the holding in the reference period or increase the said area above that which is equal in size to such relevant arable land; and

(b) he may only reduce the area of the land which he undertook to set aside for rotational fallow if he has in any previous year increased the area of land which he undertook to set aside for rotational fallow by at least that same amount.

(5) Where any set-aside land is used for grazed fallow, the beneficiary shall observe in relation to that land the requirements set out in Schedule 3.”.

Grazed fallow

9.  After regulation 7 of the principal Regulations there shall be inserted the following regulation:

“7A.— (1) Subject to paragraph (4) below, where a beneficiary uses set-aside land for grazed fallow he shall not allow the number of livestock units on his holding to exceed the maximum number of livestock units in the reference period on the holding of which the set-aside land formed part.

(2) Subject to paragraph (4) below, where livestock were not kept in the reference period on the holding of which the set-aside land formed part, the beneficiary shall only use the fallow land on that set-aside land for grazed fallow for deer or goats, and he shall not allow the number of livestock units on his holding to exceed the number of livestock units representing one livestock unit per hectare of the forage area of his holding.

(3) Subject to paragraph (4) below, except where the beneficiary’s holding is identical to that of which the set-aside land referred to in paragraph (1) above formed part, where that holding comprises a greater or lesser forage area than the forage area of the holding referred to in that paragraph, for the purposes of paragraph (1) above, the maximum number of livestock units in the reference period on the holding of which the set-aside land formed part shall be deemed to bear the same proportion to the total number of livestock units on that holding in the reference period as the forage area of the beneficiary’s holding at the time he gives his undertaking to set aside land for grazed fallow bears to the forage area in the reference period of the holding of which the set-aside land formed part.

(4) Where a beneficiary enlarges his holding by the acquisition of arable land or temporary grassland which was arable land in the reference period, and

(a) (i) already uses for grazed fallow set-aside land forming part or all of a holding on which livestock were kept in the reference period; and

(ii) undertakes to set aside an area of that acquired land for grazed fallow, where such land forms part or all of a holding on which no livestock were kept in the reference period; or

(b) (i) already uses for grazed fallow set-aside land forming part or all of a holding on which no livestock were kept in the reference period; and

(ii) undertakes to set aside an area of that acquired land for grazed fallow, where such land forms part or all of a holding on which livestock were kept in the reference period,

if he uses his holding for the grazing of only deer or goats, he shall not allow to be grazed on that holding more than the sum of:

(i) the number of livestock units in the reference period on the holding of which the set-aside land formed part; and

(ii) the number of livestock units representing one livestock unit per hectare of the forage area of the acquired land; but

if he uses his holding for the grazing of livestock (other than exclusively deer or goats), he shall not allow to be grazed on that holding more than the number of livestock units in the reference period on the land forming part or all of the holding on which livestock were kept in the reference period.

(5) For the purposes of this regulation–

(a) “his holding” means all the land occupied by the beneficiary as a unit at the time he gave his undertaking to set aside land for grazed fallow, together with any land subsequently acquired by him; and

(b) the equivalent in livestock units of an animal of the type described in the first column of Schedule 4 shall be the number specified in the second column of that Schedule.”.

Requirements in relation to use for woodland

10.  For paragraph (1) of regulation 8 there shall be substituted the following paragraph:

“(1) Where a beneficiary has undertaken to use any set-aside land for woodland, that beneficiary shall, until planting commences, undertake to use that set-aside land for permanent fallow and shall observe in relation to it the relevant requirements set out in Schedule 2.”.

Requirements in relation to use for non-agricultural purposes

11.  For paragraph (1) of regulation 9 there shall be substituted the following paragraph:

“(1) Where a beneficiary has undertaken to use any set-aside land for non-agricultural purposes, that beneficiary shall, until the conversion of that land to use for non-agricultural purposes commences, undertake to use that set-aside land for permanent fallow and shall observe in relation to it the relevant requirements set out in Schedule 2.”.

Termination of undertakings

12.  In regulation 10 of the principal Regulations–

(a) in paragraph (1) after the word “all” there shall be inserted the words “or part of”;

(b) at the end of paragraph (1) there shall be inserted the words “and provided that, if he terminates those undertakings in relation to only part of that land, he does not thereby reduce the area of land set aside below 20 per cent of the relevant arable land on the holding in the reference period”; and

(c) in paragraph (4) after the words “paragraph (1) above” there shall be inserted the words “or has been notified that his undertakings are treated as terminated by the appropriate Minister under the provisions of regulation 16(3A)”.

Change of use of set-aside land

13.  In regulation 11 of the principal Regulations–

(a) in paragraph (1) for the words “to one or more of the other uses mentioned in regulation 3(1)(b)(ii)–(iv)” there shall be substituted the words “if he undertakes to put that land to one of the other uses specified in regulation 3(1)(b)(ii)–(vi) or a combination of the uses specified in (ii), (iv) and (v)”;

(b) in paragraph (2), before the word “Minister” where it appears the first time there shall be inserted the word “appropriate”;

(c) after paragraph (2) there shall be inserted the following paragraph:

“(2A) Subject to regulation 13(2)(b), (3)(b) and (4)(b) where, on or after 1st October 1990, a beneficiary changes the use of set-aside land in any year he shall receive payment at the rate payable in respect of the use made by him of that land in that year which attracts the lowest rate of payment as set out in the table in regulation 13.”;

(d) paragraph (3) shall be omitted;

(e) for paragraph (4) there shall be substituted the following paragraph:

“(4) Except where a beneficiary receives the rate for permanent fallow in accordance with the provisions of regulation 13(2), (3) or (4), where he changes the use of any set-aside land from use for permanent fallow to any other use, the appropriate Minister shall recover or withhold from that beneficiary the difference between any payments made or due to him under these Regulations on the basis of the use of that land for permanent fallow and payments made or due to him on the basis of the use of that land for rotational fallow.”; and

(f) in paragraph (5) for the words “or rotational fallow” there shall be substituted “fallow, rotational fallow or grazed fallow”.

Change of occupation

14.  In paragraph (7) of regulation 12 of the principal Regulations–

(a) in sub-paragraph (a) the word “or” where it appears the second time shall be omitted; and

(b) in sub-paragraph (b) omit the full stop and insert “; or”.

(c) after sub-paragraph (b) there shall be inserted the following sub-paragraphs:

“(c) in England and Wales, the termination of a tenancy following the operation of a notice to quit to which the Agricultural Land Tribunal has consented under section 26(1) of the Agricultural Holdings Act 1986(3) having been satisfied as to any of the matters specified in section 27(3) of that Act, or the termination of a tenancy following the service of a notice to quit stating that the circumstances in Case A, B, G or H of Schedule 3 to that Act apply; or

(d) in Scotland, the termination of a tenancy following the operation of a notice to quit to which the Scottish Land Court has consented under section 25(1) of the Agricultural Holdings (Scotland) Act 1949(4), having been satisfied as to any of the matters referred to in section 26(1)(b) to (e) of that Act, or the termination of a tenancy following service of a notice to quit to which section 25(2)(c) of that Act applies.”.

Amounts and payment of aid

15.  In regulation 13 of the principal Regulations–

(a) for the table there shall be substituted the table in Schedule 1 to these Regulations;

(b) after paragraph (1) there shall be inserted the following paragraph:

“(1A) Where the set-aside land has been used for both permanent fallow and rotational fallow, in calculating for the purposes of paragraphs 1 and 2 of the table referred to in paragraph (1) at which rate per hectare payments should be made, the number of hectares of set-aside land used for rotational fallow shall be counted before counting the number of hectares used for permanent fallow.”;

(c) in sub-paragraph (b) of paragraphs (2), (3) and (4) after the words “the rate for permanent fallow” there shall be inserted in each case:

• “, having regard to regulation 7(1) and (2),”.

Obligation to permit entry and inspection

16.  In regulation 15 of the principal Regulations–

(a) in paragraph (1)(a) for “7(2)” there shall be substituted “7(3)”; and

(b) in paragraph (2)(b) for “7(2)” there shall be substituted “7(3)”.

Withholding and recovery of aid

17.  In regulation 16 of the principal Regulations–

(a) in paragraph 2(b) for “7(2)” there shall be substituted “7(3)”; and

(b) after paragraph (3) there shall be inserted the following paragraph:

“(3A) In addition to withholding or recovering aid under paragraphs (1), (2) or (3) the Minister may treat as terminated all the undertakings given by the beneficiary under these Regulations.”.

Amendment of Schedules

18.  In the reference note to Schedule 2 to the principal Regulations after “Regulation 7(1)” there shall be inserted “and (2)”.

19.  In Schedule 2 to the principal Regulations:

(a) in the heading, for the words “set-aside land” there shall be substituted “permanent fallow or rotational fallow”;

(b) for paragraph 1 there shall be substituted the following paragraph:

“1.— (a) The beneficiary shall sow a plant cover immediately after the commencement of the set-aside period unless the crop or plant cover on the land immediately prior to the commencement of the set-aside period consisted of one or more of the following: common wheat, durum wheat, rye, barley, oats, buckwheat, millet, canary seed, triticale, lucerne/alfalfa, sainfoin, clover, vetches, grass (whether for grazing or for herbage seed), mustard. If the beneficiary is prevented from establishing a plant cover by exceptional weather conditions, he shall do so as soon as practicable; or

(b) the beneficiary shall establish a plant cover immediately after the commencement of the set-aside period. If the crop planted in the year prior to the commencement of the set-aside period has not yet been harvested, the plant cover shall be established immediately after the harvest. If the beneficiary is prevented from establishing a plant cover by exceptional weather conditions, he shall do so as soon as practicable. The establishment of a plant cover may take the form of the regeneration of naturally-occurring vegetation.”.

(c) in paragraph 3(b) after the word “re-established” there shall be inserted the words “by sowing a plant cover”;

(d) in paragraph 3(c) after the word “established” there shall be inserted the words “by sowing a plant cover”;

(e) for paragraph 4 there shall be substituted the following paragraph:

“4.— (a) The beneficiary shall cut the plant cover at least twice in every year, such cuts to be taken at intervals of at least 1 month and one such cut to be taken in the period between 30th June and 1st September; or

(b) the beneficiary shall cut the plant cover at least once in every year; and shall not in either case sell cuttings or use them for feeding livestock.”; and

(f) in paragraph 13:

(i) in sub-paragraph (a) the word “and” shall be omitted where it appears the second time; and

(ii) after sub-paragraph (b) there shall be added the following sub-paragraphs:

“(c) all existing unimproved grassland, moorland and heath; and

(d) all existing vernacular buildings and stone walls,”.

20.  After Schedule 2 to the principal Regulations there shall be inserted the provisions of Schedules 2 and 3 to these Regulations.

In witness whereof the Official Seal of the Minister of Agriculture, Fisheries and Food is hereunto affixed on 17th August 1990.

L.S.

Trumpington

Minister of State, Ministry of Agriculture, Fisheries and Food

Sanderson of Bowden

Minister of State, Scottish Office

21st August 1990