Scottish Government

Environment and Rural Affairs Department

ARABLE AREA PAYMENTS SCHEME

INFORMATION LEAFLET

ON

A: ONE-TO-ONE SWITCHES OF ELIGIBLE AND INELIGIBLE LAND

B: COMPULSORY PURCHASE

C: INSTALLATION OF PIPELINES AND CABLES

AND

D: LAND TRANSFERS

CONTENTS

Paragraph

A One-to-one switches of eligible and ineligible land 1-24

Introduction 1-3

Land eligibility 4-5

Reasons for switching 6

Agricultural practice 7

Plant health 8

Environmental 9

Restrictions on ineligible land which can be made eligible 10-21

Environmental safeguards 11-13

Land in management agreements 14

Exceptions 15

Non-arable and semi-natural land 16-17

Long-term crops 18

Sites of historical or archaeological interest 19

Multi-annual set-aside 20

Other yield regions 21

Tenant farmers 22-23

How to apply 24

B Compulsory Purchase 25-44

Introduction 25

Definition of compulsory purchase 26-28

Notice of compulsory purchase order 29

Replacing eligible land lost to compulsory purchase 30-33

Field identification and area requirements 34

Cropping aid 35

Set-aside 36

Compensation for lost payments 37

Area Aid Application 38-39

Additional land required for the construction period only 40-42

Exploration and other preliminary work 43-44

C Installation of pipelines and cables 45-59

Introduction 45

Definition of pipelines and cables 46

Planning installations 47

Permanent structures and field areas 48-49

Calculating the eligible area 50-51

Cropping aid 52

Timing of installations 53-54

Payment on set-aside land 55-56

Management of set-aside 57

Non-food crops 58

Compensation for lost payments 59

Paragraph

D Land Transfers 60-74

Introduction 60

EU rules 61

Who should claim AAPS aid? 62-63

Ratio of set-aside to cropping 64

Other AAPS rules 65

Non-food crops 66

Proof of agreement covering entitlement to AAPS aid 67-68

Disputed applications 69-70

Area Aid Applications 71

Maps and Cropping Records 72

Further information 73-74

A: ONE-TO-ONE SWITCHES OF ELIGIBLE AND INELIGIBLE LAND

Introduction

1. This section explains the statutory background and rules relating to one-to-one switches of eligible and ineligible land under the Arable Area Payments Scheme (AAPS).

2. In December 1993, the Council of Agriculture Ministers agreed measures introducing flexibility for switching eligible and ineligible land under AAPS. The rules are set out in Article 2(5) of Commission Regulation (EC) No. 2316/1999 as read with Article of Council Regulation (EC) No. 1251/1999.

3. It remains the rule, however, that in no event may the switch give rise to an increase in the total area of eligible AAPS land on the holding.

Land Eligibility

4. Land is ineligible for AAPS aid if it:

5. Permanent pasture includes all moorland, rough grazing, pasture and any areas in grass for five years or more at 31 December 1991. Permanent crops are those which occupy the soil for a period of five years or more, and yield crops over several seasons. However, land growing the following multi-annual crops at 31 December 1991 is eligible: artichokes, asparagus, rhubarb, raspberries, blackberries, mulberries, loganberries, blackcurrants, whitecurrants, redcurrants, gooseberries, cranberries, bilberries and other fruits of the genus vaccinium.

Reasons for Switching

6. You need to show that you have relevant and objective reasons for making a switch and thereafter secure the written agreement of your local Area Office. A relevant reason is one related to the arable enterprise. Advice on such reasons is given in paragraphs 8-10. It is not intended to cover all possible reasons and is given for guidance purposes only.

Agricultural Practice

7. Relevant and objective reasons could include agronomic reasons, e.g. conditions affecting the soil management, cultivation, or cropping of your currently eligible land are such that they cannot continue to sustain normal arable production. Such changes make sound husbandry sense. Examples also include where the land is subject to erosion and continued cropping would lead to serious erosion problems; and where a switch of eligibility is made for organisational reasons, e.g. where currently eligible land is next to a dairy unit. Switches may also be allowed where problems with ineligible land mean that eligible AAPS land has to be brought into use, for instance if you were looking to re-site a worn-out orchard or where grassland has become infected with TB.

Plant Health

8. You might wish to switch land for plant health reasons, because of contamination, or the need to take preventive action against the spread or development of serious plant diseases, which could not reasonably be controlled by normal rotations or by other conventional means within your currently eligible land.

Environmental

9. Environmental reasons might include re-siting an outdoor pig unit because of nuisance caused by odour, or where it would facilitate your entry into an agri-environmental scheme.

Restrictions on Ineligible Land which can be made Eligible

10. The following describes reasons for which a switch of eligibility may not be allowed.

Environmental Safeguards

11. There are certain restrictions on land that may be declared eligible in order to protect the environment. If your currently ineligible land is within any of the following environmental areas you will not normally be able to exchange it:

12. If you have already been informed by Scottish Natural Heritage that your land is proposed for designation as an SSSI, SPA or SAC, then it cannot be switched.

13. Any land within 100 metres of an SSSI, SPA or SAC or within 10 metres of any watercourse will not normally be granted eligibility. Watercourses include all surface waters whether coastal waters, estuaries, lochs, ponds, rivers, streams, canals or field ditches.

Land in Management Agreements

14. If your land is subject to a management agreement in an Environmentally Sensitive Area, under the Habitats Scheme or under the Countryside Premium Scheme, it may not be switched. Where land is outside but contiguous to land subject to a management agreement and which is under the same ownership, switches may not be allowed where this would hinder the achievement of the objectives of the management agreement.

Exceptions

15. In all cases that fall into the categories listed in paragraphs 11-14, eligibility may exceptionally be granted where you can show that no material environmental damage would take place. For example, where a physical barrier is sufficient to ensure that no harmful effect on the designated area would occur. This may be, for instance, a thickly wooded area or large stone dykes. Eligibility may also be permitted where you have adjacent land that is currently ineligible and has been under arable production for a number of years.

Non-arable and semi-natural land

16. Land that has not been managed for arable production within the last 20 years as at 22 April 1995, such as old pasture, is not eligible to be switched. Please note that taking a cut of hay or silage does not constitute management for arable production. However, a switch may be allowed if its purpose is to allow previously eligible land to be entered into an agri-environment scheme and there is thus an overall environmental benefit. The start date for the 20 years period will be reviewed in 2005.

17. Land may also not be switched if it has continuously been grassland, scrub or other non-arable habitat for at least 15 years prior to 1 September 1998 and has not been cultivated or reseeded or improved with the use of fertilisers, herbicides or lime to such an extent that plant species characteristic of unimproved grasslands or related habitats now constitute less than 20% of the sward.

Long-term Crops

18. Any land under orchards which are over 30 years old may be switched only where the land on which they are sited would not suffer from any environmental damage as a result of being used for arable crops.

Sites of Historical or Archaeological Interest

19. If land has a scheduled ancient monument or a site of archaeological interest on it, it cannot be made eligible, except where it can be shown that arable cultivation or set-aside will have no harmful effect on their preservation.

Multi-annual set-aside

20. If you have land that is in multi-annual set-aside, you cannot normally switch it with ineligible land without incurring penalties.

Other Yield Regions

21. If you have land in one or more yield regions, for example in the Scottish LFA and Non-LFA, then it is not possible to make switches between these regions.

Tenant Farmers

22. If you are a tenant farmer, you must secure your landlord's written consent before applying if you wish to remove eligible AAPS status from any of your tenanted land. You must then state on your application that you have secured this agreement in writing. You will need to retain this written consent for 4 years (from the end of the calendar year in which the switch occurred) and make it available to the Department for inspection on demand. The Department will always contact the landlord for separate confirmation in all cases where a tenant applies to switch eligibility out of a tenanted area of land.

23. You must state that you have notified your landlord regarding land gaining eligible AAPS status, but you do not need to state that you have gained their prior written agreement.

How to Apply

24. You may apply to your local Area Office using form IACS 21 at any time. However, the deadline for submitting an application for the IACS year is 14 January if the land is being used for set-aside, and 15 April if the land is being used for cropping. You may have to provide supporting information to explain the reasons for your application to switch eligibility. This will include providing maps if you intend to divide fields.

B: COMPULSORY PURCHASE

Introduction

25. This section explains how the compulsory purchase of a farm might affect your eligibility for AAPS aid. It has been written to help both farmers and authorities using powers of compulsory purchase. It also explains how eligible land taken following compulsory purchase may be replaced with ineligible land so as to maintain the overall amount of eligible land on the holding. If you have any questions on these rules, or do not understand anything in this Leaflet, your local Area Office will try to help you. You must give them the full facts about your case.

Definition of "Compulsory Purchase"

26. The arrangements described here apply only to land subject to a compulsory purchase order, e.g. land acquired for road purposes. Land acquired in this way will not normally be returned to agricultural use in the foreseeable future. If there is a firm commitment to return the land, or part of the land, to agricultural production, e.g. where this is a condition of the planning consent for the change of use of the land, then the eligible land lost may not be replaced by currently ineligible land (see paragraph 30).

27. Where land is sold by private agreement as an alternative to compulsory purchase, the normal rules on land transfers apply. (See paragraphs 60-70.)

28. Where possible the Department will make payments on eligible land that is subject to, or affected by, compulsory purchase, up to the point at which land is effectively taken out of agricultural production. Occupiers of land are advised to discuss with the purchasing authority the timing of entry to the land and the aid that the occupier intends to claim.

Notice of Compulsory Purchase Order

29. The owner of the land will always have some advance notice that land is to be subject to compulsory purchase but the length of this notice can vary and, in some cases, the project for which the land was to be used may eventually be postponed or cancelled. Farmers need not alter their cropping plans in receipt of a Notice to Treat and in any case some will only have limited scope to do so, for instance where they have put land into guaranteed set-aside.

Replacing Eligible Land Lost to Compulsory Purchase

30. The AAPS rules allow land taken for compulsory purchase to be replaced by land which is currently ineligible for AAPS. There must be no increase in the eligible area. Applications for switching eligible and ineligible land must be made on form IACS 21. You are required to attach to your application a copy of the compulsory purchase order and the date from when you wish the switch to take place. After compulsory purchase has taken place, you will need to apply for field identifiers for any fields made eligible which are being claimed for the first time. (See paragraph 34).

31. Land that you wish to use in the switch must be part of your IACS holding at the time the application is made.

32. Any land that becomes eligible will, of course, have to be farmed in accordance with the AAPS rules, including the set-aside rules, if a claim is to be made. Full details of these rules are given in the AAPS Explanatory Booklet. However, there are restrictions on the type of land that may be declared eligible. (See paragraphs 11-21).

33. Tenants must always abide by the specific requirements in paragraph 22.

Field Identification and Area Requirements

34. Following the compulsory purchase of land, the Department must be informed of any changes to existing field boundaries. You should complete an FMR form and submit a map showing the changes. The FIS and IACS Explanatory Booklet provide more details on completing the form and on the mapping requirements. Once the FMR has been processed, you will be issued with an updated area for your field and, in some cases, an updated field identifier. You should use this updated area information on all future AAPS claims.

Cropping Aid

35. In order to qualify for AAPS cropping aid, cereals, linseed, oilseeds, protein crops and flax must be sown by 31 May (for hemp the latest sowing date is 15 June) and be properly maintained until at least the beginning of flowering in normal local growth conditions. In addition, oilseeds, linseed and protein crops must be maintained until at least 30 June (except where harvest takes place at the stage of full agricultural maturity before this date). If crops are damaged by work that commences after these dates, the farmer can claim AAPS aid on the whole of the cropped area in the normal way, including any area affected by the work. This applies whether or not the farmer still formally occupies the land, provided that the land has been maintained in a way that meets all the AAPS rules. If crops are destroyed before that, the farmer cannot include the affected area in any claim for AAPS aid.

Set-Aside

36. You can claim set-aside aid on land subject to a compulsory purchase order, provided that it is in accordance with the scheme rules for the whole of the set-aside period. If construction, or other non-agricultural activities, starts on set-aside land before 1 September, that land will not be regarded as having been set aside, even if all the other scheme rules were followed properly. If land in multi-annual set-aside is compulsorily purchased, it may be withdrawn without penalty.

Compensation for Lost Payments

37. If you have been unable to claim cropping or set-aside payments because of the compulsory purchase of land, you may be able to claim compensation from the acquiring authority and should pursue this with them. The Department has no locus in such matters.

Area Aid Application (AAA)

38. You must not claim cropping or set-aside aid on land that does not meet the AAPS rules. You can claim on land which you no longer formally occupy but are continuing to farm in the normal way, unless a Notice to Enter has been served or you expect entry within the periods detailed in paragraphs 35 and 36. You should not claim on land covered by a Notice to Enter unless, exceptionally, there are strong grounds for believing that any planned work on that land will not affect its eligibility for payment. If a Notice to Enter is served after the AAA has been submitted, you must inform your local Area Office within 10 working days of the serving of that Notice, or of any other activity which would make the land ineligible for AAPS aid.

39. Should you propose to claim in this way on land which you no longer have a legal right to occupy, you are strongly advised to ensure that the basis on which you continue to farm the land will allow you to apply for payment under the AAPS and IACS rules. If necessary, you should seek professional advice.

Additional Land Required for the Construction Period only

40. In some circumstances, additional land may be required during the construction period only, e.g. for storing plant or materials, or to provide access. Unless it can be fully cropped in accordance with normal husbandry practice, such land is not eligible for AAPS aid. If it forms only part of a cropped eligible field, it must be deducted as an uncroppable area in the normal way.

41. Set-aside cannot be used in any way that brings a financial return. Land required during the construction period thus cannot be counted as set-aside if you receive any form of direct or indirect payment or compensation for its use from the purchasing authority or the contractor carrying out the work. Compensation specifically for any additional cultivation, management costs or any physical damage to the cover crop, gates, hedges etc is acceptable. If you are in any doubt about whether a proposed payment is acceptable you are strongly advised to seek professional advice and to consult your local Area Office before accepting it.

42. To qualify as set-aside, land must be managed in accordance with the management rules. The Department may grant reasonable derogations from the management rules for land that is only subject to occasional use but not for heavy regular use that would cause significant damage to the green cover. You must apply in advance to your local Area Office for any derogation. Derogations to allow the erection of any permanent or semi-permanent structures will not be given in any circumstances.

Exploration and Other Preliminary Work

43. In some cases, an authority with powers of compulsory purchase may wish to carry out exploratory survey work, e.g. sinking boreholes or installing ground monitoring equipment, before deciding whether to purchase the land. Such work will normally be covered by the rules applying to the installation of pipelines and cables. (See paragraphs 46-59.) Please read with particular care the section dealing with compensation for set-aside land, since the payment arrangements for survey work may be different from those which normally apply to the installation of pipelines and cables. If the proposed survey will involve significantly more work than the laying of a pipeline or cable, or if anything here is unclear, you should consult your local Area Office.

44. It may be appropriate to undertake certain archaeological investigations before land is lost to permanent development, such as a road or reservoir. Such investigations can take place on set-aside land with prior SEERAD consent without affecting its AAPS eligibility, provided that you do not receive any direct compensation or other financial return for the use of the land for the investigation. The Department will normally grant reasonable derogations from the management rules for investigations undertaken by reputable organisations. You should apply to your local Area Office as soon as you know that a derogation will be needed.

C: INSTALLATION OF PIPELINES AND CABLES

Introduction

45. This section explains how work carried out in the course of installing and maintaining pipelines or cables might affect your eligibility for AAPS aid. It has been written to help both farmers and bodies responsible for carrying out such work. If you have any questions on these rules, or do not understand anything in this Leaflet, your local Area Office will try to help you. You must give them the full facts about your case.

Definition of 'Pipelines and Cables'

46. The arrangements described here only apply to the installation (and maintenance) of pipelines and cables (underground and overhead) by bodies which have a statutory right of entry to the land concerned if the farmer does not agree to the work.

Planning Installations

47 The owner of the land will usually have some advance notice that land is to be subject to installation work, but the length of this notice can vary and in some cases the project for which the land was to be used may eventually be postponed or cancelled. Guidance on how to complete your AAA for fields so affected are set out in paragraphs 50, 51 and 53.

Permanent Structures and Field Areas

48. If the installation involves placing permanent structures in the field, e.g. electricity pylons, the uncroppable area taken up by these structures must be deducted from the area of the field. The only exceptions are small permanent structures that form part of the normal field margin such as a stile or access gate, and poles which do not prevent the field being fully cropped in the normal way.

49. Eligible land lost through compulsory purchase may be replaced by currently ineligible land subject to certain strict conditions. (See paragraph 30).

Calculating the Eligible Area

50. Where some or all of the land affected by the installation work has to be deducted from the area of the claim, it must be treated like any other uncroppable area, e.g. footpaths, or streams. The rules on area deductions, and on the mapping requirements, are explained in the FIS and IACS Explanatory Booklet. If the work results in a change to the permanent boundary of the field, you will need to complete an FMR form and submit a map showing the changes to the existing boundary. Once the FMR has been processed, you will be issued with an updated area for your field and, in some cases, an updated field identifier. You should use this updated area information on all future AAPS claims.

51. In some cases, the route of pipes and cables through a field may cut off a small parcel of land which is not itself uncroppable but which is inaccessible and/or too small to meet the minimum plot size for area and set-aside payments. These are 0.1 ha or 0.01 ha respectively for growing seed or for research, and 0.3 ha for set-aside. If the parcel of land is inaccessible and in set-aside, it can remain in set-aside but you must apply for a derogation from the management conditions. If a parcel of land is not already in set-aside and cannot be cropped, it must still be declared as 'other land' in the appropriate column of the IACS Field Data Sheet (IACS(3)). If in doubt about the rules, please contact your local Area Office in writing.

Cropping Aid

52. In order to qualify for AAPS cropping aid, cereals, linseed, oilseeds, protein crops and flax must be sown by 31 May (for hemp the latest sowing date is 15 June) and be properly maintained until at least the beginning of flowering in normal local growth conditions. In addition, oilseeds, linseed and protein crops must be maintained until at least 30 June (except where harvest takes place at the stage of full agricultural maturity before this date).

Timing of Installations

53. The timing of the installation will affect what payments, if any, can be made on the affected land. For instance, if the installation work started:

54. Where installation work that would affect the area of a claim does not begin until after the AAA has been submitted, you must inform your local Area Office within 10 days of the work starting. If you fail to do so penalties may apply.

Payment on Set-Aside Land

55. Set-aside land must not normally be used in any way that brings in a lucrative return in cash or kind. This means that land cannot be counted as set-aside if you receive any form of direct compensation for the use of the land for the installation of pipelines or cables during the set-aside period (15 January-31 August). Wayleave payments are acceptable, as is compensation specifically for the cost of resowing any non-food crop or cover crops, any additional cultivation or management costs, physical damage to gates, hedges etc and compensation for the loss of any non-food crops being grown on set-aside land. Other than the above, any direct compensation for the use of the land itself would make it ineligible for set-aside. You would thus have to deduct the area of land to which the compensation relates from any set-aside claim. If you then have insufficient set-aside to meet your set-aside obligation, the cropping element of your claim will be reduced pro rata. (See paragraph 48 of the AAPS Explanatory Booklet.)

56. Payment arrangements differ among the various utilities and organisations which install pipelines and cables. It is your responsibility to ensure that the agreed compensation does not include any payment that would make the land ineligible for set-aside. If you are in any doubt about whether any proposed payment is acceptable, you are strongly advised to seek professional advice. You should then consult your local Area Office in writing before accepting it.

Management of Set-Aside

57. The Department will grant exemptions to the normal set-aside management rules to allow installation and maintenance of pipelines or cables. You should apply for these exemptions as soon as you know what work will be carried out, and when it is expected to take place. Work should be organised in a way that avoids unnecessary damage to any green cover or disruption to wildlife.

Non-Food Crops

58. If you grow non-food crops on set-aside land, you can claim set-aside payments in the normal way even if part of the crop is destroyed in the course of installation work. However, you must advise the collector/first processor who has contracted to take the crop of any anticipated shortfall in delivery and amend the contract accordingly. A copy of the revised contract must be sent to the RPA and to your local Area Office. (Full details of the rules on non-food crops are given in the AAPS Explanatory Booklet.)

Compensation for Lost Payments

59. If you have been unable to claim cropping or set-aside payments because of the installation work, you may be able to claim compensation from the body responsible for the installation and should pursue this with them. The Department has no locus in such matters.

D: LAND TRANSFERS

Introduction

60. This section explains who is eligible to claim AAPS aid on land which has had a change of occupier. If you have any questions on these rules or do not understand anything in this Leaflet, your local Area Office will try to help you. You must give them the full facts about your case.

EU Rules

61. Under the EU rules, the person who sows the seed must normally apply for AAPS aid. There is no specific provision to cover land transfers which take place after the seed has been sown but before the submission of an AAPS application. The EC Commission has stated that the question of who should apply for arable area payments should be a matter for contractual agreement between the two parties to the transfer.

Who should claim AAPS Aid?

62. Where there has been a change of occupier at any time before 15 May, i.e. the closing date for lodging AAAs, the parties to the transfer should normally agree between themselves who will claim the cropping and set-aside payments on that land. Where the change of occupier occurs after 15 May, the AAA must be made by the person who is farming the land at the time that the application was lodged.

63. No one can claim on land which they have not occupied themselves. For example, if a holding is sold as two lots, the outgoing occupier can claim on any part of the holding but the two incoming occupiers can each claim only on the land which they actually occupy.

Ratio of Set-Aside to Cropping

64. In deciding who should claim, you should bear in mind that under the AAPS rules the parties to a land transfer must each claim on the correct proportion of set-aside to cropping. One claim cannot be offset against another in order to get the proportions right. It is not possible, except for small producers, to be paid AAPS aid in full on crops for which you do not have the required minimum area of set-aside.

N.B. The outgoing occupier can claim on some fields and the incoming occupier on the others, if this helps them to maintain the correct proportion of set-aside to cropping.

Other AAPS Rules

65. The AAPS rules must be observed at all times and the Department given access to the land even if the applicant is no longer the legal occupier. Otherwise, the applicant could lose some or all of the cropping and set-aside payments, even if not personally at fault. You should bear this in mind when agreeing who will claim the payments and on what basis.

Non-Food Crops

66. Where set-aside land growing annual crops for non-food use is transferred as part of a land transfer during the set-aside period, the incoming occupier can claim the set-aside payment provided that he takes over the contract with the collector or first processor immediately after the change of occupancy. (The procedures for amending contracts are set out in the AAPS Explanatory Booklet).

Proof of Agreement Covering Entitlement to AAPS Aid

67. You are strongly advised to put in writing any agreement about who will claim cropping and set-aside payments. This agreement does not have to form part of the sale or lease document.

68. It may be appropriate for the agreement to include:

Disputed Applications

69. The Department can only make one cropping or set-aside payment on any one plot of land. If we receive two claims for the same parcel of land both applicants will be asked whether they can:

If one applicant can produce such an agreement or if it is clear that only one of the applicants occupied the land during the relevant period, the Department will pay that applicant.

70. If the issue cannot be resolved, then payment will be made to the applicant who sowed the seed, provided that there is a corresponding area of set-aside land that is not in dispute (or the applicant is claiming as a Small Producer). The parties of a land transfer are thus strongly recommended to retain documentary evidence of sowing where appropriate, e.g. sales notes or contractors' invoices. If the disputed land includes set-aside, the associated cropping aid cannot be paid until the set-aside position has been resolved. If the applicants subsequently agree that one claimant or, as the case may be, all but one claimant will withdraw, the remaining claimant will receive the cropping and set-aside payments.

Area Aid Applications

71. You must include in your AAA all the land which you are farming at the time you make the application, even if the outgoing occupier is claiming AAPS aid on some or all of that land. Land on which the outgoing occupier is claiming should be recorded as 'other land' in your AAA; you must not claim AAPS aid on it yourself. Further details are set out in the IACS Explanatory Booklet.

Maps and Cropping Records

72. If you are taking on land, you are strongly recommended to obtain from the outgoing occupier details of its eligibility for AAPS aid, together with copies of the maps showing the 14-figure field identifiers and areas. If an AAA was not submitted in previous years, you will not be able to claim AAPS aid on land without knowing its use at 31 December 1991. You will also need to obtain new field identifiers for all of the fields upon which you wish to claim. You should complete an FMR form and submit a map showing the field boundaries clearly marked. The Field Identification System and IACS Explanatory Booklet provide more details on the FMR system, on completing the form and on the mapping requirements. In cases of difficulty, where you have taken on land and the information is not available, please write to your local Area Office.

Further Information

73. This Leaflet provides general advice and cannot cover every possible situation. Your local Area Office can provide further guidance on specific points where necessary. For detailed guidance on your business decisions, you should seek professional advice.

74. You should remember that penalties apply for breaches of scheme rules and that loss of payments may result if you fail to follow the guidance provided in this Leaflet.

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