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STATUTORY INSTRUMENTS
1994 No. 1729
AGRICULTURE
The Nitrate Sensitive Areas Regulations 1994
| Laid before Parliament |
1st July 1994 |
| Coming into force |
26th July 1994 |
The Minister of Agriculture, Fisheries and Food, being a Minister designated[1]
for the purposes of section 2(2) of the European Communities Act 1972[2]
in relation to the common agricultural policy of the European Community,
in exercise of the powers conferred by the said section 2(2) and all other
powers enabling her in that behalf, hereby makes the following Regulations:
Interpretation
2.—(1) In these Regulations, unless
the context otherwise requires:
"agriculture" includes horticulture, fruit growing, seed growing, dairy
farming, livestock breeding and keeping and freshwater fish farming, the
use of land as grazing land, osier land, reed beds, market gardens and
nursery grounds, and "agricultural" shall be construed accordingly;
"autumn sown" in relation to cereals or oilseed rape means a variety
of cereals or oilseed rape normally sown between 31st July in one year
and 1st January in the following year;
"basic scheme" means the scheme under which a farmer gives the Minister
the undertakings set out in Schedules 2 and 3;
"controlled waters" means the waters referred to in section 104(1)
of the Water Resources Act 1991[3];
"cover crop" means a crop sown primarily in order to take up nitrogen
from the soil;
"crop requirement" means the amount of nitrogen in the form of inorganic
nitrogen fertiliser applied in any year, such that if extra inorganic nitrogen
fertiliser were applied in that year, having regard to the crop in question
and the characteristics of the land on which it was planted and taking
account of any applications of organic manure, the cost of that fertiliser
would be greater than the value of the additional crop produced;
"farmer" means a person who has an interest in agricultural land in
a nitrate sensitive area or is a party to a share farming agreement in
respect of land in a nitrate sensitive area;
"grassland" means land on which the vegetation consists predominantly
of grass species;
"holding" means land which is occupied as a unit for agricultural purposes;
"inorganic nitrogen fertiliser" means material containing nitrogen,
in which the main function of the nitrogen is to provide plant food, and
in which the nitrogen is in the form of inorganic salts obtained by any
process including extraction, physical industrial processes, chemical industrial
processes, or a combination of any or all of these, and includes calcium
cyanamide, and urea and its condensation products;
"intensive grassland" means grassland which receives more than 250kg
per hectare of nitrogen in the form of inorganic nitrogen fertiliser in
any year;
"livestock unit" means—
(c) one bovine animal more than two years old,
(d) 1.66 bovine animals from six months old to two years old
inclusive, or
(e) one horse or pony more than six months old, or
"the Minister" means the Minister of Agriculture, Fisheries and Food;
"nitrate sensitive area" means any of the areas referred to in Schedule
1 and more particularly shown coloured pink on the maps contained in the
volume of maps marked "Volume of maps of Nitrate Sensitive Areas" dated,
signed and sealed by the Minister and deposited at the offices of the Ministry
of Agriculture, Fisheries and Food, Nobel House, 17 Smith Square, London
SW1P 3JR;
"nitrogen fertiliser" means inorganic nitrogen fertiliser and organic
nitrogen fertiliser;
"organic nitrogen fertiliser" means animal manure, sewage sludge or
any other organic products containing nitrogen, but excluding calcium cyanamide,
and urea and its condensation products;
"original occupier" shall be construed in accordance with regulation
13(1)(c);
"original undertakings" shall be construed in accordance with regulation
12(1)(a);
"permanent crop" means any non-rotational crop (other than permanent
pasture) which occupies the ground for five years or longer and which yields
repeated harvests;
"permanent grassland" includes moorland, rough grazing, pasture, and
any other land which has been in grass for more than five years on 31st
December 1991;
"premium arable scheme" means the scheme under which a farmer gives
the Minister the undertakings set out in Schedules 2 and 4;
"premium grass scheme" means the scheme under which a farmer gives
the Minister the undertakings set out in Schedules 2 and 5;
"sandy" in relation to soil means soil which contains—
(a) more than 50 per cent by weight of sand sized particles (that
is particles more than 0.06 millimetres and less than 2 millimetres in
diameter),
(b) less than 18 per cent by weight of clay sized particles (that
is particles less than 0.02 millimetres in diameter), and
(c) less than 6 per cent by weight of organic carbon;
"scheme" (except in the phrase "aid scheme" in the definition in this
regulation of "set-aside land") means a scheme for the payment of aid under
these Regulations, being the basic scheme, the premium arable scheme or
the premium grass scheme;
"set-aside land" means land set aside in accordance with an aid scheme
established by Article 1 of Council Regulation (EEC) 1703/91[4],
or under Article 2 of Council Regulation (EEC) 2328/91[5]or
in accordance with Article 7 of Council Regulation (EEC) 1765/92[6];
"share farming agreement" means an agreement in writing for the use
of agricultural land for the purposes of a farming enterprise, made between
the owner of that land (including a person entitled for a term of years
certain or other limited estate) and a farmer who does not have a right
to exclusive possession of that land or any legal interest or charge in
or over it, under which—
(a) the relationship between the contracting parties is not one
of partnership or employer and employee or landlord and tenant;
(b) the respective liabilities of the contracting parties for
the farming enterprise remain separate and defined in the agreement;
(c) the contracting parties have joint responsibility for planning
and managing the farming enterprise; and
(d) each contracting party's reward for participation in the
farming enterprise is an agreed share of the output from that enterprise,
including agricultural produce of all kinds produced on or from the land
and, in any case where produce is sold on behalf of each party to the agreement,
revenues from such sale;
"slurry" means animal manure with a dry matter content by weight of
less than 15 per cent at any time;
"stocking level" means the average daily number of livestock grazing
the land in the period of 12 months ending on the day in question;
"undertaking" in relation to a farmer means any undertaking given by
him in connection with an application for aid under these Regulations;
"vegetable brassica crop" means Brassica oleracea, including cabbage,
cauliflower, calabrese and Brussels sprouts.
(2) Any reference in these Regulations
to a nitrate sensitive area by any name appearing in an entry in column
(1) of Schedule 1 is a reference to the nitrate sensitive area shown on
the map in the "Volume of maps of Nitrate Sensitive Areas" referred to
in the definition of "nitrate sensitive area" in paragraph (1) bearing
the number in the corresponding entry in column (2) of Schedule 1.
(3) Any reference in these Regulations to—
(a) a numbered regulation or Schedule is a reference to the regulation
in or Schedule to these Regulations so numbered; and
(b) a numbered paragraph is a reference to the paragraph so numbered
in the regulation in which the reference appears.
Aid for farmers in nitrate sensitive areas
3. Subject to the provisions
of these Regulations, the Minister may make payments of aid to any farmer
where—
(a) the land in respect of which application for aid is made
and the farmer satisfy the qualifying conditions set out in regulation
4;
(b) the land in respect of which application for aid is made
is eligible, in accordance with regulation 5, for payment under the scheme
in respect of which application for aid is made;
(c) the farmer makes an application for aid in accordance with
regulation 6;
(d) the farmer gives to the Minister such of the undertakings
mentioned in regulation 7 as relate to the application;
(e) the Minister has accepted the application for aid in accordance
with regulation 8; and
(f) the farmer submits a claim in accordance with regulation
10.
Qualifying conditions for land and farmer
4.—(1) The qualifying conditions referred
to in regulation 3(a) are that the land is in a nitrate sensitive area
and that—
(a) the land is occupied by the farmer or on his behalf for agricultural
purposes and he is the owner of the freehold interest in the land; or
(b) the land is occupied by the farmer or on his behalf for agricultural
purposes and he has—
(i) an interest in the land as a tenant, and
(ii) subject to paragraph (2), the consent in writing of his
landlord to him making the application; or
(c) the farmer is a party to a share farming agreement in respect
of the land and—
(i) the application is made jointly by all the parties to the
share farming agreement ("the applicants"),
(ii) the applicants have entered into the share farming agreement
for a period of five years or more from the date the undertakings given
or to be given by the applicants would commence, and
(iii) where the owner of the freehold interest is not an applicant,
the applicants have the consent in writing of the owner of the freehold
interest to the applicants making the application.
(2) A farmer may make an application in
respect of land in a nitrate sensitive area where the farmer holds a tenancy
in the land from a landlord who has given his consent in writing to the
giving of the undertakings required by these Regulations notwithstanding
the fact that the farmer has other land in that nitrate sensitive area
which he holds under a tenancy from a landlord who has not given his consent
in writing to the giving of the undertakings required by these Regulations.
(3) A farmer who is a tenant and his landlord
may make a joint application for aid under these Regulations notwithstanding
the fact that the land is not occupied by the landlord or on his behalf
for agricultural purposes.
Land which is eligible for aid
5.—(1) For the purposes of regulation
3(1)(b) land in a nitrate sensitive area is eligible for payments of aid
under a scheme if, at the date the undertakings mentioned in regulation
7 are to take effect, it satisfies the condition set out in whichever one
of the following paragraphs applies to that scheme.
(2) In respect of the basic scheme, the condition
is that, since 31st December 1991, but except for such period as it has
been set-aside land, the land has been used only for the production of
any agricultural crop other than—
(b) grass grown for more than five consecutive years.
(3) In respect of the premium arable scheme,
the condition is that, since 31st December 1991, but except for such period
as it has been set-aside land, the land has not been woodland or permanent
grassland and has been used only for the production of any agricultural
crop other than—
(b) grass grown for more than one consecutive year.
(4) In respect of the premium grass scheme,
the condition is that the land is grassland which has been receiving more
than 250kg of nitrogen in the form of inorganic nitrogen fertiliser per
hectare per year in each of the three years immediately preceding the date
when the undertakings given or to be given in respect of it are to commence.
Applications for aid
6. An application for aid
under these Regulations shall be made at such time and in such form as
the Minister reasonably may require and shall include—
(a) a map in a form approved by the Minister showing—
(i) the land in respect of which the farmer proposes to give
undertakings to the Minister in accordance with sub-paragraph (b) of regulation
7, and
(ii) all land within the nitrate sensitive area which forms part
of the farmer's holding;
(b) a description of the use or uses of the land described in
sub-paragraphs (a)(i) and (a)(ii) above;
(c) a description of the use or uses the farmer intends for the
land described in sub-paragraph (a)(i) above if the Minister accepts the
farmer's application for aid under these Regulations; and
(d) such evidence as the Minister may reasonably require of the
farmer's interest in the land described in sub-paragraph (a)(i) above.
Undertakings by farmer
7. The undertakings referred
to in regulation 3(1)(d) are undertakings that the farmer will, for a period
of five consecutive years commencing on 1st October in the year in which
his application for aid is made—
(a) comply with the requirements set out in Schedule 2 in relation
to all land which is in the nitrate sensitive area and which is on the
farmer's holding;
(b) subject to the following sub-paragraphs of this regulation,
comply, in relation to each field or part field in respect of which the
application is made, with the requirements set out in whichever of Schedules
3, 4 or 5 is appropriate for the scheme for which application is made,
namely—
(i) where the application is for aid under the basic scheme,
Schedule 3 (including the requirements of either Option A or Option B in
that Schedule),
(ii) where the application is for aid under the premium arable
scheme, Schedule 4 (including the requirements of one of Options A, B,
C or D in that Schedule),
(iii) where the application is for aid under the premium grass
scheme, Schedule 5;
(c) where the application is for aid under the basic scheme,
comply with the requirements set out in paragraph (8) of Schedule 3 in
relation to all land which is in the nitrate sensitive area and which is
on the farmer's holding;
(d) where the application is for aid under the premium arable
scheme, comply with the requirements set out in paragraph (2) of Schedule
4 in relation to all land which is in the nitrate sensitive area and which
is on the farmer's holding; and
(e) where the application is for aid under the premium grass
scheme, comply with the requirements set out in paragraph (6) of Schedule
5 in relation to all land which is in the nitrate sensitive area and which
is on the farmer's holding.
Restrictions on acceptance of applications for aid
8.—(1) The Minister shall refuse any
application for aid under—
(a) the premium arable scheme unless the application relates
to—
(i) a whole field or fields,
(ii) a part field or part fields of not less than four hectares
in each case, or
(iii) a combination of the above;
(b) the basic scheme or premium grass scheme unless the application
relates to—
(i) a whole field or fields,
(ii) a part field or part fields where the remaining part of
each field is subject to an application for aid under the premium arable
scheme which the Minister has accepted, or
(iii) a combination of the above.
(2) The Minister may refuse an application
for aid under these Regulations if she is satisfied that—
(a) the farmer will be unable to comply with his undertakings
throughout the whole of the period for which they are given; or
(b) the undertakings given by the farmer will not be effective
in preventing, to the extent contemplated by the Minister in establishing
the scheme in respect of which the application is made, the entry of nitrate
into controlled waters.
(3) Where the Minister is satisfied that—
(a) the farmer will be unable to comply with his undertakings
throughout the whole of the period for which they are given in respect
of part of the land in relation to which they are given but will be so
able in respect of the remaining part of such land; or
(b) the undertakings given by the farmer will not be effective
in preventing, to the extent contemplated by the Minister in establishing
the scheme in respect of which the application is made, the entry of nitrate
into controlled waters from part of the land in relation to which such
undertakings are given but will be so effective in respect of the remaining
part of such land,
she may refuse the application in relation to that part of the land in
respect of which she is satisfied that the farmer will not be able to comply
with such undertakings throughout such period or, as the case may be, that
such undertakings will not be effective but accept the application in relation
to the remaining part.
(4) The Minister may refuse an application
for aid under these Regulations if she is satisfied that—
(a) the implementation of the undertakings referred to in regulation
3(1)(d) in respect of the land would frustrate the purposes of any assistance
previously given or to be given out of money provided by Parliament or
the European Community; or
(b) the payment of aid under these Regulations in relation to
that land would duplicate any assistance previously given or to be given
out of money provided by Parliament or the European Community.
Monitoring of undertakings and of effectiveness of schemes
9.—(1) A farmer whose application for
aid under these Regulations has been accepted shall permit the Minister,
her servants or agents, accompanied by such persons acting under her instructions
as appear to her, her servant or agent to be necessary for the purpose,
at all reasonable times, where necessary in order to monitor compliance
with the farmer's undertakings or to assess their effectiveness in preventing
the entry of nitrate into controlled waters, to—
(a) enter upon any land which is the subject of such undertakings;
(b) take samples from the land;
(c) install equipment on the land; or
(d) examine all records kept in compliance with undertakings
given under these Regulations.
(2) A farmer whose application for aid
under these Regulations has been accepted shall render all reasonable assistance
to any person acting by virtue of paragraph (1) and in particular shall—
(a) produce for inspection such document or record as may be
required by that person; and
(b) at the request of that person, accompany him in making the
inspection of any land and shall identify any area of land which is concerned
in any application or claim made or in any undertaking given under these
Regulations.
(3) A farmer whose application for aid
under these Regulations has been accepted shall provide the Minister which
such information relating to the farmer's interest in, use of, and intended
use of the land in respect of which he has given undertakings as the Minister
may reasonably require to enable her to monitor compliance with the farmer's
undertakings or to assess their effectiveness in preventing the entry of
nitrate into controlled waters.
Claims for aid
10. Any claim for payment
of aid under these Regulations shall be made at such time and in such form
and shall contain such information as the Minister reasonably may require.
Payments of aid
11. The Minister shall,
following receipt by her of a claim from the farmer, make payments in accordance
with Schedule 6 in respect of land which is the subject of undertakings
in accordance with sub-paragraph (b) of regulation 7 given in connection
with an application under these Regulations which the Minister has accepted.
Upgrading of scheme
12.—(1) A farmer may make an application
for aid in respect of which undertakings are given for a period of less
than five years where—
(a) the farmer has previously given undertakings to the Minister
in accordance with the requirements of a scheme and option mentioned in
column (1) of Schedule 7 (the "original undertakings");
(b) the application is made before the date specified in column
(2) of Schedule 7 in the entry corresponding to the original undertakings;
(c) the application is made for aid under a scheme and option
mentioned in column (3) of Schedule 7 in the entry corresponding to the
original undertakings; and
(d) the application includes or is accompanied by undertakings
that the farmer will comply with the requirements of the scheme in respect
of which the application is made from 1st October next following the date
of the application until the date when the original undertakings expire.
(2) The Minister may accept an application
for aid made in accordance with paragraph (1) if she is satisfied that
the undertakings the farmer gives under this regulation will be effective
in preventing, to the extent contemplated by the Minister in establishing
the scheme in respect of which the application is made, the entry of nitrate
into controlled waters.
(3) Where—
(a) the application is of a type mentioned in the first entry
in the table in Schedule 7 (upgrading basic scheme to premium arable scheme),
and
(b) the farmer occupies the land in respect of which the application
is made as a tenant,
the Minister shall not accept an application for aid in accordance with
this regulation unless the farmer has the consent in writing of his landlord.
(4) Where the Minister accepts an application
for aid in accordance with paragraph (1), the undertakings given under
paragraph (1)(d) shall have effect as a variation of and not in addition
to the original undertakings and accordingly, in respect of the period
for which the undertakings given under paragraph (1)(d) have effect, any
aid payable to the farmer shall be aid under the scheme referred to in
paragraph (1)(c) only.
Death of farmer or change of occupation of the land
13.—(1) Where, during the period for
which undertakings have been given by a farmer, the farmer dies or there
is a change of occupation of the whole or any part of the land which is
the subject of such undertakings—
(a) where the farmer has died, the personal representative shall
notify the Minister in writing of the death and of any consequent change
in occupation of the land within 3 months of the death or as soon as practicable
after being appointed as personal representative (whichever is later) and
shall supply to the Minister such information relating to any change of
occupation in such form and within such period as the Minister reasonably
may determine;
(b) where there is a change of occupation of the land or any
part thereof other than consequent on the death of the farmer, the farmer
shall notify the Minister in writing of the change of occupation within
3 months of its occurrence and shall supply to the Minister such information
relating to the change of occupation in such form and within such period
as the Minister reasonably may determine;
(c) where the farmer ("the original occupier") occupied the land
or the part in respect of which there has been a change of occupation as
owner of the freehold interest or as a tenant, the new occupier may give
undertakings to the Minister, in respect of the land or the part thereof
which he occupies, in the same terms, and expiring at the same time, as
the undertakings given by the farmer who made the application for aid under
these Regulations.
(2) The Minister shall not accept undertakings
referred to in paragraph (1)(c) unless she is satisfied that the new occupier
occupies the land, or the part thereof in respect of which he gives such
undertakings, as owner of the freehold interest, tenant, or as personal
representative of the original occupier.
(3) A new occupier who gives undertakings referred
to in paragraph (1)(c) shall supply to the Minister such information in
such form and within such period as the Minister reasonably may determine.
(4) Where the Minister has accepted from a
new occupier undertakings referred to in paragraph (1)(c)—
(a) the new occupier shall be treated for the purposes of these
Regulations as if he was the original occupier and, subject to paragraph
(5), shall be entitled to payments of aid in place of the original occupier
for the period for which the new occupier gives undertakings; and
(b) the undertakings given by the new occupier shall take effect
on the date of the acceptance by the Minister of them.
(5) Where the personal representative of
a farmer fails without reasonable excuse to comply with paragraph (1)(a),
the Minister may withhold the whole or any part of any aid payable to the
personal representative under these Regulations, recover from the personal
representative the whole or any part of any such aid already paid to him
and give notice to the personal representative that she is treating as
terminated, with effect from the date specified in the notice, the undertakings
given by the farmer.
(6) Where within 3 months of the date of a
change of occupation a new occupier has not given undertakings referred
to in paragraph (1)(c) in relation to all the land the occupation of which
has changed, the Minister may—
(a) withhold the whole or any part of any payment due to the
original occupier;
(b) recover from the original occupier or his personal representatives
the whole or any part of any payments already made to him (or, in the case
of the personal representative, to the original occupier); and
(c) give notice to the original occupier or his personal representative
that she is treating the farmer's undertakings as terminated with effect
from the date specified in the notice.
(7) Paragraph (6) shall not apply where
the change of occupation of the entirety or any part of the original occupier's
land which is subject to undertakings is the result of—
(a) compulsory purchase of that land or part; or
(b) the death of the original occupier, and—
(i) the original occupier occupied that land or part as tenant,
and
(ii) following the death of the original occupier, the tenancy
or lease under which he occupied that land or part was terminated by the
landlord; or
(c) 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[7]
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.
Power to vary undertakings
14.—(1) The Minister may in writing,
at the request of the farmer, vary the terms of any undertakings given
by the farmer under these Regulations and such variation may be subject
to a time limit and to any conditions the Minister reasonably may determine
and may be withdrawn in writing by the Minister at any time.
(2) The Minister shall not make any variation
under paragraph (1) unless she is satisfied that, having regard to any
conditions proposed to be attached to the variation, the purposes for which
the undertakings were given will not be adversely affected by the variation.
Withholding and recovery of aid and termination
15.—(1) Where any person, with a view
to obtaining the payment of aid under these Regulations to himself or any
other person, makes any statement or furnishes any information which is
false or misleading in a material respect, the Minister may withhold the
whole or any part of any aid payable to that person or to such other person
and may recover the whole or any part of any such aid already paid to that
person or to such other person.
(2) Where any farmer whose application for
aid under these Regulations has been accepted by the Minister—
(a) fails to comply with any of his undertakings;
(b) fails without reasonable excuse to permit entry, inspection
or other activity he is required to permit by regulation 9; or
(c) fails without reasonable excuse to comply with any other
requirement of these Regulations,
the Minister may withhold the whole or any part of any aid payable to that
farmer under these Regulations and may recover the whole or any part of
any such aid already paid to him.
(3) Where any new occupier who has given undertakings
in accordance with regulation 13(1)(c) in respect of any land—
(a) fails to comply with any of his undertakings; or
(b) fails without reasonable excuse to permit entry, inspection
or other activity he is required to permit by regulation 9,
the Minister may recover from the new occupier a sum of money not exceeding
the whole of the amount of any aid already paid under these Regulations
in respect of that land.
(4) Where the Minister withholds or recovers
aid under any of paragraphs (1) to (3), she may give notice to the farmer
or, in the case of paragraph (3), the new occupier, that she is treating
as terminated, with effect from the date specified in the notice, the undertakings
given by the farmer or, as the case may be, new occupier.
(5) Before withholding or recovering any aid
under paragraph (2)(a) or (3)(a), the Minister shall—
(a) give to the farmer or, as the case may be, new occupier,
a written explanation of the reasons for the proposed withholding or recovery
of aid;
(b) afford the farmer or, as the case may be, new occupier, an
opportunity of appearing before and being heard by a person appointed for
that purpose by the Minister; and
(c) consider the report by the person so appointed and supply
a copy of the report to the farmer or, as the case may be, new occupier.
False statements
16. If any person, for
the purpose of obtaining for himself or any other person any aid under
these Regulations, knowingly or recklessly makes a statement which is false
in a material particular, that person shall be guilty of an offence and
liable on summary conviction to a fine not exceeding level 5 on the standard
scale.
In witness whereof the Official Seal of the Minister of Agriculture,
Fisheries and Food is hereunto affixed on
1st July 1994.
Gillian Shephard
Minister of Agriculture, Fisheries and Food
Notes:
[1] S.I. 1972/1811. back
[2] 1972 c. 68. back
[3] 1991 c. 57.
back
[4] O.J. No. L162, 26.6.91, p1. back
[5] O.J. No. L218, 6.8.91, p1. back
[6] O.J. No. L181, 1.7.92, p12. back
[7] 1986 c. 5. back |
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