Regulation 6 Exchanges of eligible and ineligible land

(1)

Where a farmer believes that he is obliged to exchange ineligible land for eligible land within his holding for agronomic, phytosanitary or environmental reasons, as provided for in Article 2(5) of Commission Regulation 658/96, he may apply to the Minister for approval of the exchange and the following provisions of this regulation shall apply in respect of his application.

(2)

Subject to paragraphs (3) and (4) below, the application shall be in such form as the Minister may reasonably require.

(3)

Where the applicant holds any of the eligible land as a tenant then his application shall include a declaration that he has obtained the written consent of his immediate landlord to the proposed exchange in respect of each part of the eligible land so held.

(4)

Where the applicant holds any of the ineligible land as a tenant then his application shall include a declaration that he has informed his immediate landlord of the proposed exchange in respect of each part of the ineligible land so held.

(5)

If the Minister is satisfied on reasonable grounds that the applicant is obliged to exchange the ineligible land for the eligible land for agronomic, phytosanitary or environmental reasons then, subject to the following paragraphs of this regulation, he shall give approval for the exchange.

(6)

The Minister shall not give approval for the exchange if any of the ineligible land–

(a)

is situated within, or within 100 metres of, an area of special scientific interest as notified pursuant to section 28(1) of the Wildlife and Countryside Act 1981^f1 unless he is satisfied on reasonable grounds that neither the ineligible land nor that area of special scientific interest will suffer any material environmental damage as a result of the exchange;

(b)

is situated within, or within 100 metres of, an area to which section 29(3) of the Wildlife and Countryside Act 1981 applies unless he is satisfied on reasonable grounds that neither the ineligible land nor that area will suffer any material environmental damage as a result of the exchange;

(c)

is situated within, or within 100 metres of–

(i)

particular land classified as a European site under regulation 10 of the Conservation (Natural Habitats &c.) Regulations 1994^f2; or

(ii)

particular land included in the list referred to in regulation 7 of the Conservation (Natural Habitats &c.) Regulations 1994,

unless he is satisfied on reasonable grounds that neither the ineligible land nor that particular land will suffer any material environmental damage as a result of the exchange;

(d)

is situated within 10 metres of any watercourse (which for the purposes of this sub-paragraph includes any coastal water, estuary, lake, pond, river, stream, canal or field ditch), unless he is satisfied on reasonable grounds that neither the ineligible land nor the watercourse will suffer any material environmental damage as a result of the exchange;

(e)

is subject to an agreement made under section 18(3) of the Agriculture Act 1986^f3 unless he is satisfied on reasonable grounds that neither the ineligible land nor other land (if any) subject to the same agreement will suffer any material environmental damage as a result of the exchange;

(f)

is–

(i)

subject to an agreement made (in England or Wales) under the Nitrate Sensitive Areas (Designation) Order 1990^f4 or (in Scotland) under section 31B of the Control of Pollution Act 1974^f5 as it applies to Scotland, or

(ii)

situated within land in respect of which payments of aid may be made under the Nitrate Sensitive Area Regulations 1994^f6 following an application thereunder,

unless he is satisfied on reasonable grounds that neither the ineligible land nor other land (if any) subject to the same agreement or, as the case may be, covered by the same application will suffer any material environmental damage as a result of the exchange;

(g)

is subject to an agreement entered into under section 4 of the Countryside Act 1968^f7 which has been designated a Countryside Stewardship Scheme agreement (in England) or Tir Cymen agreement (in Wales), unless he is satisfied on reasonable grounds that neither the ineligible land nor other land (if any) subject to the same agreement will suffer any material environmental damage as a result of the exchange;

(h)

is situated within land in respect of which payments of aid may be made under the Habitat (Water Fringe) Regulations 1994^f8, the Habitat (Former Set-Aside Land) Regulations 1994^f9, the Habitat (Salt-Marsh) Regulations 1994^f10, the Habitat (Broadleaved Woodland) (Wales) Regulations 1994^f11, the Habitat (Water Fringe) (Wales) Regulations 1994^f12, the Habitat (Coastal Belt) (Wales) Regulations 1994^f13, the Habitat (Species-Rich Grassland) (Wales) Regulations 1994^f14 or the Habitats (Scotland) Regulations 1994^f15 following an application made thereunder, unless he is satisfied on reasonable grounds that neither the ineligible land nor other land (if any) covered by the same application will suffer material environmental damage as a result of the exchange;

(i)

is situated within an area which has never been cropped during the period of twenty years ending on 22nd April 1995, unless that ineligible land is situated within an existing orchard planted after 22nd April 1965;

(j)

is situated within an existing orchard planted before 23rd April 1965, unless he is satisfied on reasonable grounds that such of the ineligible land as is situated within that orchard will not suffer material environmental damage as a result of the exchange;

(k)

is situated within land comprising an Ancient Monument which is included in the schedule compiled by the Secretary of State pursuant to section 1(1) of the Ancient Monuments and Archaeological Areas Act 1979^f16, unless the Minister is satisfied on reasonable grounds that there will not be a harmful effect on the preservation of the Ancient Monument as a result of the exchange;

(l)

is situated within an area designated as an area of archaeological importance by the Secretary of State under section 33 of the Ancient Monuments and Archaeological Areas Act 1979, unless the Minister is satisfied on reasonable grounds that there will not be a harmful effect on the preservation of the archaeological importance of that area as a result of the exchange; or

(m)

is situated within a production region (as specified in regulation 3(1)) different from that in which any of the eligible land is situated.

(7)

Where approval has been given under paragraph (5) above, but–

(a)

any declaration included in, or information given by the applicant in connection with, the application was false in any material particular; or

(b)

any declaration required to have been included in the application by virtue of paragraph (3) or (4) above was not so included,

then the application shall for all purposes be treated as if it had never been approved.

Annotations

Footnotes

f1: 1981 c. 69; section 28 was amended, so far as relevant to these Regulations, by the Wildlife and Countryside (Amendments) Act 1985 (c. 31), section 2, and section 29 by the Environmental Protection Act 1990 (c. 43), sections 132 and 133 and Schedule 9, paragraph 11.
f2: S.I. 1994/2716.
f3: 1986 c. 49.
f4: S.I. 1990/1013, amended by S.I. 1990/1187 and S.I. 1993/3198.
f5: 1974 c. 40; section 31B as it applies to Scotland was inserted by the Water Act 1989 (c. 15), section 169 and Schedule 23.
f6: S.I. 1994/1729, amended by S.I. 1995/1708 and S.I. 1995/2095.
f7: 1968 c. 41; section 4 was amended by the Wildlife and Countryside Act 1981 (c. 69), section 40, and the Environmental Protection Act 1990 (c. 43), section 130 and Schedule 8, paragraph 2.
f8: S.I. 1994/1291, amended by S.I. 1996/1480.
f9: S.I. 1994/1292, amended by S.I. 1996/1478.
f10: S.I. 1994/1293, amended by S.I. 1995/2871 (itself corrected by S.I. 1995/2891) and S.I. 1996/1479.
f11: S.I. 1994/3099.
f12: S.I. 1994/3100.
f13: S.I. 1994/3101.
f14: S.I. 1994/3102.
f15: S.I. 1994/2710 (S.138).
f16: 1979 c. 46; section 33 was amended by the National Heritage Act 1983 (c. 47), section 33 and Schedule 4, paragraph 54, and by the Local Government Act 1985 (c. 51), section 6 and Schedule 2, paragraph 2.