7 Compliance with statutory obligations

15.60 The Common Agricultural Policy (Control and Enforcement, Cross-compliance, Scrutiny of Transactions and Appeals) Regulations 2014 make failure to comply with, or to observe, a number of existing legal obligations a non-compliance with the cross-compliance rules from the basic scheme payment.¹⁵³ Although the provisions discussed below, and to which this applies, all create legally enforceable duties in their own right, the addition of cross-compliance gives an important added enforcement mechanisms (application of a financial penalty and withdrawal of the basic payment in whole or in part).

(a)Burning of crop residues¹⁵⁴

15.61 A farmer must not burn any crop residue of a kind specified in Sch 1 to the Crop Residues (Burning) Regulations 1993 unless the burning is for the purposes of education or research, disease control or the elimination of plant pests where a notice has been served under Art 22 of the Plant Health (Great Britain) Order 1993 or the disposal of straw stack remains or broken bales. This implements GAEC 6 for the protection of soil organic matter.

(b)Environmental Impact assessment¹⁵⁵¹⁵⁴

15.62 In England a farmer must not begin or carry out a project to convert uncultivated land to intensive agricultural use, or to restructure the boundaries of a holding, without first obtaining a screening decision from Natural England as to whether an environmental impact assessment will be required, and if it is without first obtaining regulatory consent for the project.¹⁵⁶ In both England and Wales, the cross-compliance provisions supplement the applicable environmental assessment rules by stipulating that a farmer must not breach a stop notice or, without reasonable excuse, fail to comply with any requirement of a reinstatement notice served on him under the relevant regulations.¹⁵⁷ This implements both GAEC 6 for the protection of soil organic matter and GAEC 7 for the protection of landscape features.

(c)Heather and grass burning¹⁵⁸¹⁵⁷

15.63 A farmer must not commence burning heather, rough grass, bracken, gorse or vaccinium on any land between sunset and sunrise. The restrictions on heather burning implements GAEC 6 for the protection of soil organic matter.

15.64 Safety conditions apply where heather and grass burning takes place.¹⁵⁹ These require that a farmer must not burn heather, rough grass, bracken, gorse or vaccinium unless there are, where the burning is taking place, sufficient persons and equipment to control and regulate the burning during the entire period of the operation. He must also take, both before commencing burning and during the entire period of the operation, all reasonable precautions to prevent injury or damage to any adjacent land, or to anything on adjacent land. In addition certain notification requirements must be met before burning can commence. The farmer must, not less than 24 hours and not more than 7 days before commencing burning on any land, give notice in writing of the date or dates, time and place at which, and the extent of the area on which it is his intention to burn, to any person who has an interest in the land either as owner or occupier, and to any person whom he knows, or could with reasonable diligence have discovered, to be in charge of any land adjacent to that on which the burning is to take place.

15.65 The burning of heather, rough grass, bracken, gorse or vaccinium is prohibited on land which is within the uplands during the period within any year beginning with 16 April and ending with 30th September, and on all other land during the period within any year beginning with 1 April and ending with 31 October.¹⁶⁰ In either case, lawful burning can only take place if done in accordance with any conditions specified in a licence issued by the Minister.¹⁶¹

(d)Sites of special scientific interest

15.66 A number of cross-compliance conditions apply to protect land in Sites of Special Scientific Interest that have been notified under the Wildlife and Countryside Act 1981.¹⁶² As a consequence of their inclusion in cross-compliance,¹⁶³ an additional remedy will apply for breach viz.

15.67 The rules included in cross compliance require that the farmer must not carry out, or cause or permit to be carried out, on SI land any operation that has been notified as likely to damage its conservation interest.¹⁶⁵ S/he must also comply with any management notices served by Natural England and with the terms of an restoration order served by the courts. These rules will not be breached if the farmer:

•Meets the statutory conditions under which it is permissible to carry out the operation¹⁶⁶ – for example s/he has the written permission of Natural England (or the Natural Resources Wales, as the case may be) or the operation is carried out under a management agreement, or

•S/he has a reasonable excuse for carrying it out. A reasonable excuse for these purposes includes an emergency operation to protect crops or livestock from eg flood or fire, or an operation carried out with planning permission granted on application under the Town and Country Planning Act 1990.¹⁶⁷ These are considered in more detail in Chapter 13 above.

15.68 The cross-compliance conditions also provide that a farmer must not, without reasonable excuse and knowing that the land concerned is within a SI, intentionally or recklessly destroy or damage any of the flora, fauna, or geological or physiographical features by reason of which that land has been notified as of special scientific interest, or intentionally or recklessly disturb any of the fauna that are a special interest feature. This condition is wider and will apply if damage or disturbance is caused, whether or not it is caused by potentially damaging operations notified in the site notification. A farmer must not, without reasonable excuse, fail to comply with a requirement of either a management notice or a restoration order made or served on him under the Wildlife and Countryside Act 1981.

15.69 These restrictions apply to all SIs. If an SI is also a ‘European site’ within the meaning in the Conservation of Habitats and Species Regulations 2010,¹⁶⁸ then breach of these rules will also be a breach of SMR 2 (Wild Birds Directive) or SMR 3 (Habitats Directive). All Special Areas of Conservation designated under the Habitats Directive, and all Special Protection Areas under the Birds Directive, are also notified in England and Wales as SIs under the Wildlife and Countryside Act 1981. In these sites, therefore, breach of the cross compliance rules above will constitute a beach both of SMR 2 or 3 and also of GAEC 7a.

(e)Tree preservation orders¹⁶⁹¹⁶⁸

15.70 A farmer must not, in breach of a tree preservation order, cut down, uproot or wilfully destroy a tree; or wilfully damage, top or lop a tree in such a manner as to be likely to destroy it. He must also refrain from doing so if this is in breach of the provisions protecting trees in conservation areas.¹⁷⁰

(f)Scheduled monuments¹⁷¹¹⁷⁰

15.71 Where a farm contains a scheduled ancient monument or archaeological site, cross-compliance conditions are applied to underpin the protection given by the Ancient Monuments and Archaeological Areas Act 1979. The farmer must not, without the necessary scheduled monument consent under the 1979 Act,¹⁷² execute –

•Any works resulting in the demolition or destruction of or any damage to a scheduled monument; or

•Any works for the purpose of removing or repairing a scheduled monument or any part of it; or

•Any works for the purpose of making any alteration or addition to a scheduled monument or any part of it; and

•Any flooding or tipping operation on land in, on or under which there is a scheduled monument.

15.72 If a scheduled monument consent has been obtained which relates to the works to be carried out, the farmer must comply with all the conditions attached to that consent. Where damage is nevertheless caused to a listed site or monument, it will be excused in limited circumstances.

•Where the farmer took all reasonable precautions and exercised all due diligence to avoid or prevent damage to the monument;

•Where it can be established that the works were urgently necessary in the interests of safety or health, and notice in writing of the need for the works was given to the Secretary of State (or Welsh Minister) as soon as was reasonably possible.

(g)Public rights of way¹⁷³¹⁷²

15.73 In England, a number of cross-compliance conditions apply to give additional protection to public rights of way crossing farmland. These require that a farmer must not (without lawful authority or excuse), either disturb the surface of a visible footpath, a visible bridleway, or any other visible highway which consists or comprises a carriageway other than a made-up carriageway, so as to render it inconvenient for the exercise of a public right of way; or in any way wilfully to obstruct free passage along a visible highway. S/he must also maintain any stile, gate or similar structure across a visible footpath or bridleway in a safe condition, and to the standard of repair required to prevent unreasonable interference with the rights of persons using the footpath or bridleway. If s/he has disturbed the surface of a visible footpath or bridleway s/he must make it good in accordance with the terms of the Highways Act 1980. The cross-compliance condition only applies to ‘visible’ rights of way, but this will be interpreted to include rights of way that would have been visible had he conditions been complied with.¹⁷⁴

15.74 The cross-compliance conditions protecting public rights of way do not apply in Wales. As noted above, the inclusion of cross-compliance provisions on public rights of way for England was unsuccessfully challenged in Horvath v Secretary of State of the Environment Food and Rural Affairs.¹⁷⁵