10 Cross-compliance and the Polluter Pays Principle

15.77 The concept of cross compliance was first introduced into European agricultural law under the 1992 reforms, for example in relation to arable set-aside and livestock production.¹⁸² It was radically extended in scope by the Mid Term Review from 2003, and as we have seen, following the 2013 reform it now applies to all payments under the under the basic payment scheme and agri-environment funding.

15.78 To what extent do the provisions described above justify these policy claims? The statutory management requirements described above all relate to legal obligations that farmers should in principle already be observing under European Union and/or domestic law. It is therefore questionable whether the cross-compliance conditions deliver additional benefits in return for public expenditure.¹⁸⁴ Withdrawing the basic payment, which is funded at public expense, for infringements of pre-existing environmental legislation is arguably not an implementation of the ‘polluter pays’ principle – rather it is a case of ‘not paying the polluter’. Nevertheless, their inclusion in the cross-compliance conditions for the basic payment unquestionably provides a powerful additional mechanism for enforcing compliance with pre-existing legal obligations viz. the withdrawal or reduction of direct income support payments.¹⁸⁵ The withdrawal of payments is without prejudice to any additional penalties that may be applicable under the relevant Directives and domestic implementing regulations, and these unquestionably do apply the polluter pays principle – including in some cases potential obligations as to the restoration of damaged natural habitats.¹⁸⁶ It is also pertinent to note in conclusion that the cross-compliance requirement to keep land in good agricultural and environmental condition is more broadly based, and applies to land that is no longer in agricultural production – and the same sanctions are imposed for breach of the requirement to maintain land in GAEC.

1Eg the Set-Aside Regulations 1988 (as amended). And see Chapter 15 of the 3rd edition of this work.

2Eg the Dairy Produce Quota Regulations 2005, SI 2005/465). And see Chapter 16 of the 3rd edition of this work.

3Eg the Milk (Community Outgoers Scheme) (England and Wales) Regulations 1986, SI 1986/1611 (amended by SI 1987/410, SI 1987/909); the Milk (Cessation of Production) (England and Wales) Scheme 1987, SI 1987/908.

4The support schemes included in the single payment were set out in Annex VI of Council Reg 1782/2003 (OJ L 270/1, 21.10.2003) and included all the principal support schemes formerly operating within the CAP. They included, for example, support payments for arable crops (including area aid, set aside payments and grass silage payments), potato starch, grain legumes, rice, seeds, beef and veal, milk and dairy products, sheep and goats and dried fodder.

5See Chapter 2 para 2.26 ff.

6See Preparing for the Health Check of the CAP Reform, COM [2007] 722; The CAP Towards 2020; Meeting the Food, Natural Resources and Territorial Challenges of the Future COM [2010] 672. And above Chapter 2 para 2.27 ff.

7Regulation (EU) 1307/2013 of the European Parliament and of the Council of 17 December 2013 OJ L347/608 (20.12.2013).

8Regulation (EU) 1305/2013 of the European Parliament and of the Council of 17 December 2013, OJ L 347/487 (20.12.2013). See Chapter 2 para 2.49 ff. Agri-environment schemes introduced under the aegis of the rural development policy are considered in Chapter 13.

9Regulation (EU) 1306/2013 of the European Parliament and of the Council of 17 December 2013, OJ L 347/487 (20.12.2013).

10See Art 1(b)(i), (iv) and (vi), Regulation (EU) 1307/2013 of the European Parliament and of the Council of 17 December 2013 OJ L347/608 (20.12.2013).

11See Regulation (EU) 1307/205, Art 1(b)(ii), (iii), (v), (vii) and (ix).

12See Welsh Government, Consultation Document: Proposals for the Basic Payment Scheme (2015) esp. at pp 15–16, available at: http://gov.wales/consultations/environmentandcountryside/basic-payment-scheme-proposals/?lang=en.

13Regulation (EU) 1307/2013, Art 9 of the European Parliament and of the Council of 17 December 2013 OJ L347/608 (20.12.2013).

14See Preamble, recital (10) ibid.

15‘Natural or legal persons, or groups of natural or legal persons’ – Art 9.1 ibid.

16See Art 9(1) and Art 4(2) ibid.

17Article 9.2 ibid.

18See below para 15.28.

19See Regulation (EU) 1307/2013, Art 32.1 of the European Parliament and of the Council of 17 December 2013 OJ L347/608 (20.12.2013).

20Article 32.2 ibid.

21As to which see Chapter 13 above para 13.64. The land may, for example, be in an SAC designated under the Habitats Directive and been wholly or partially used as a nature reserve since 2008.

22Directive 2000/60/EC of the European Parliament and of the Council, OJ L2000 L327/1.

23Regulation (EU) 1307/2013, Art 33.1 of the European Parliament and of the Council of 17 December 2013 OJ L347/608 (20.12.2013).

24See Durkheim v Aufsichts- und Dienstleistungsdirektion [2010] ECR 1-9763 (decided on the identical wording in Art 44(2), (3) of Council Reg (EC) 1782/2003, OJ 2003 L270/1).

25Regulation (EU) 1307/2013, Art 31(1)(b) of the European Parliament and of the Council of 17 December 2013 OJ L347/608 (20.12.2013).

26Article 34.1 ibid.

27Regulation (EU) 1307/2013, Art 51.

28Regulation (EU) 1307/2013, Art 41.1 and 2 ibid.

29See Art 43.3 ibid.

30See Regulation (EU) 1307/2013, Art 43(2).

31As to which see Chapter 13 para 13.64.

32Article 45.1 ibid.

33Article 45.2 ibid.

34Article 44.1 ibid.

35Article 44.3 ibid.

36See Art 44.4 ibid. It follows that there may actually be no crops at all on the land eg if it is lying fallow.

37Article 46.1 ibid.

38See Art 46.2 ibid.

39The rules are set out in Arts 91–101 and Annex 11 of Regulation 1306/2013 of the Council and the Parliament on the financing, management and monitoring of the CAP (the ‘horizontal’ regulation), OJ 2013 L347/549.

40Article 93.1 ibid.

41Article 94 ibid.

42For example, compliance with the management rules for European Sites under Habitats Directive, Art 6 and (for Special Protection Areas) of the Birds Directive, Art 4 (SMRs 3 and 2 respectively). As to which see Chapter 13 para 13.64 ff above.

43Council Directive 91/676/EC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources, OJ L 375 31.12.1991, p 1. Above Chapter 14 para 14.44 ff.

44Council Directive 96/22/EC of 29 April 1996, OJ L 125, 23.5.1996 p 3; and Regolith (EC) 178/2002 of the European Parliament and of the Council laying down general principles and requirements of food law, OJ L 31 1.2.2002 p1.

45Directive 2000/60/EC of 23 October 2000 establishing a framework for Community Action in the field of water policy.

46Directive 2009/128/EC of the European Parliament and of the Council of 21 October 2009 establishing a framework for Community action to achieve the sustainable use of pesticides.

47This is required by Art 91 of the Horizontal Regulation 2013 (which requires the imposition of an ‘administrative penalty’ for non compliance).

48Common Agricultural Policy (Control and Enforcement, Cross-compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263.

49The Common Agricultural Policy (Integrated Administration and Control System and Enforcement and Cross Compliance) (Wales) Regulations 2014 SI 2010/3223 (W328).

50See Regulation (EU) 1307/2013, Art 14.1 and 2 of the European Parliament and of the Council of 17 December 2013 OJ L347/608 (20.12.2013).

51See The Common Agricultural Policy Competent Authority and Coordinating Body Regulations 2014, SI 2014/3260, reg 2.

52TFEU Article 5.

53The Common Agricultural Policy Basic Payment and Support Schemes (England) Regulations 2014, SI 2014/3259, reg 3.

54As allowed by Art 21.3 of Regulation (EU) 1307/2013 of the European Parliament and of the Council of 17 December 2013 OJ L347/608 (20.12.2013).

55The Common Agricultural Policy Basic Payment and Support Schemes (England) Regulations 2014, SI 2014/3259, reg 8.

56SI 2014/3259, reg 7.

57Ibid, reg 10 (applyingArt 9.4 of Regulation (EU) 1307/2013 of the European Parliament and of the Council of 17 December 2013 OJ L347/608 (20.12.2013).

58Regulation (EU) 1307/2013 of the European Parliament and of the Council of 17 December 2013 OJ L347/608 (20.12.2013) Art 32.1.

59See ibid, Art 32.2.

60Ibid, Art 4 (1)(e). There is a further definition of agricultural activity in ibid. Art 4(1)(b).

61The Common Agricultural Policy Basic Payment and Support Schemes (England) Regulations 2014, SI 2014/3259, reg 5. The same rules apply in Wales: Common Agricultural Policy Basic Payment and Support Schemes (Wales) Regulations 2015, SI 2015/1252 (W84), reg 3.

62Ibid, reg 6. The same rule applies in Wales: Common Agricultural Policy Basic Payment and Support Schemes (Wales) Regulations 2015, SI 2015/1252 (W84), reg 4.

63Under Council Reg (EC) 1782/2003, Art 44.3. For the position under the former Single Payment Scheme see the 3rd edition of this work at para 15.06.

64See Rural Payments Agency, The Basic Payment Scheme in England 2015: Guidance for Farmers about the Basic Payment Scheme in 2015 (2015 Rural Payments Agency), esp. pp 13, 14, available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/406452/BPS_Handbook_-_final_v1.0.pdf.

2Rural Payments Agency, The Basic Payment Scheme in England 2015: Guidance for Farmers about the Basic Payment Scheme in 2015 (2015 Rural Payments Agency), esp. pp 22, 23.

65Article 32.3 of Regulation (EU) 1307/2013 of the European Parliament and of the Council of 17 December 2013 OJ L347/608 (20.12.2013).

66Common Agricultural Policy Basic Payment and Support Schemes (Wales) Regulations 2015, SI 2015/1252 (W84), reg 13 and Sch, Part 1.

67Ibid, SI 2015/1252 (W84), reg 13 and Sch, Part 2.

68Rural Payments Agency, The Basic Payment Scheme in England 2015: Guidance for Farmers about the Basic Payment Scheme in 2015 (2015 Rural Payments Agency), esp. pp 22, 23. Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/406452/BPS_Handbook_-_final_v1.0.pdf.

69Articles 9.1 and 9.2 of Regulation (EU) 1307/2013 of the European Parliament and of the Council of 17 December 2013 OJ L347/608 (20.12.2013). Above para 15.07.

70See for the rules in England: Rural Payments Agency, The Basic Payment Scheme in England 2015: Guidance for Farmers abut the Basic Payment Scheme in 2015 (2015 Rural Payments Agency).

71This includes farmers who did not claim the single farm payment in 2014 but who, if they had done so, would have had a claim of 5000 Euros or less.

72Regulation (EU) 1307/2013, Art 9.2 of the European Parliament and of the Council of 17 December 2013 OJ L347/608 (20.12.2013).

73For the detailed guidance see the Basic Scheme Guidance: Rural Payments Agency, The Basic Payment Scheme in England 2015: Guidance for Farmers abut the Basic Payment Scheme in 2015 (2015 Rural Payments Agency), at 9–10. Above para 15.24 n 1.

74See Art 9.2(a)–(c) of Regulation (EU) 1307/2013 of the European Parliament and of the Council of 17 December 2013 OJ L347/608 (20.12.2013).

75See Rural Payments Agency, The Basic Payment Scheme in England 2015: Guidance for Farmers about the Basic Payment Scheme in 2015 (2015 Rural Payments Agency), esp p 12.

76Article 44.1, Regulation (EU) 1307/2013 of the European Parliament and of the Council of 17 December 2013 OJ L347/608 (20.12.2013).

77Rural Payments Agency, The Basic Payment Scheme in England 2015: Guidance for Farmers about the Basic Payment Scheme in 2015 (2015 Rural Payments Agency), at p 36.

78By Art 46.2 of Regulation (EU) 1307/2013 of the European Parliament and of the Council of 17 December 2013 OJ L347/608 (20.12.2013).

79See The Common Agricultural Policy Basic Payment and Support Schemes (England) Regulations 2014 SI 2014/3259, reg 13.

80See Rural Payments Agency, The Basic Payment Scheme in England 2015: Guidance for Farmers about the Basic Payment Scheme in 2015 (2015 Rural Payments Agency), esp. p 37ff.

81Presumably the same rule will apply in future claim years.

82The Common Agricultural Policy Basic Payment and Support Schemes (England) Regulations 2014 SI 2014/3259 Schedule Art 2. And see Rural Payments Agency, The Basic Payment Scheme in England 2015: Guidance for Farmers about the Basic Payment Scheme in 2015 (2015 Rural Payments Agency), Annex A.

83Common Agricultural Policy Basic Payment and Support Schemes (Wales) Regulations 2015, SI 2015/1252 (W84), reg 16(1).

84Welsh Government 2015, Single Applications Rules Booklet (2015) at pp 37 ff, available at: http://gov.wales/docs/drah/publications/150226-saf-2015-rules-booklet-en.pdf (accessed 7 August 2015).

85These are now stipulated in the Common Agricultural Policy (Control and Enforcement, Cross Compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263, reg 32.

86Under the Common Agricultural Policy (Integrated Administration and Control System and Enforcement and Cross Compliance) (Wales) Regulations 2014, SI 2014/3223 (W328).

87Common Agricultural Policy (Control and Enforcement, Cross Compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263, reg 32(2).

88The Common Agricultural Policy (Control and Enforcement, Cross Compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263, reg 30.

89Ibid, reg 32(3).

90Ibid, reg 32(5).

91The Common Agricultural Policy Single Payment and Support Schemes Appeals)(England) Regulations 2004 SI 2004/2689, reg 3.

92These requirements were originally laid down for the former single farm payment in Council Reg (EC) 1782/2003 Arts 17 and 18. Detailed rules for IACS were laid down in Commission Reg (EC) 796/2004 Art 5 et seq. The rules on IACS are now set out in Title V of Regulation (EU) 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy, OJ L 347, 20.12.2013, p 549.

93Article 68, Regulation (EU) 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy, OJ L 347, 20.12.2013, p 549.

94Ibid, Art 74.

95The Common Agricultural Policy (Control and Enforcement, Cross Compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263, regs 2, 3 (the regulations apply to England Scotland and Wales in this regard).

96Ibid, reg 3(2) and (3).

97Ibid, reg 5.

98SI 2014/3263, reg 6.

99Ibid, reg 10.

100Ibid, reg 11.

101Ibid, reg 16. And see reg 17 for proceedings against a body corporate, partnership or unincorporated association. Proceedings can be laid against an association or partnership and recovery of any fine or repayments recouped from partnership or association funds.

102Ibid, reg 7.

103The rules are set out in Arts 91–101 and Annex 11 of Regulation 1306/2013 of the Council and the Parliament on the financing, management and monitoring of the CAP (the ‘horizontal’ regulation), OJ 2013 L347/549.

104Common Agricultural Policy (Control and Enforcement, Cross- Compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263; and in Wales The Common Agricultural Policy (Integrated Administration and Control System and Enforcement and Cross Compliance) (Wales) Regulations 2014 SI 2010/3223 (W328).

105See Regulation 1306/2013 of the Council and the Parliament on the financing, management and monitoring of the CAP, OJ 2013 L347/549, Art 93.1.

106As to which see Chapter 13 above, para 13.68.

107The statutory standards for biodiversity are SMR 2 and 3 set out in Annex 11 of Regulation 1306/2013 of the Council and the Parliament on the financing, management and monitoring of the CAP. The management standards that must be observed are implemented in UK law by the Conservation of Habitat and Species Regulations 2010, SI 2010/490, above Chapter 13 para 13.70 ff.

108SMR 1. See Arts 4 and 5 of Council Directive 91/676/EC of 12 December 1991 concerning the protection of waters against pollution by nitrates from agricultural sources, OJ L 375, 31.12.1991, p 1.

109SMR 4–9 in Annex 11 of Regulation 1306/2013 of the Council and the Parliament on the financing, management and monitoring of the CAP (the ‘horizontal’ regulation), OJ 2013 L347/549.

110See Art 94 of Regulation 1306/2013 of the Council and the Parliament on the financing, management and monitoring of the CAP (the ‘horizontal’ regulation), OJ 2013 L347/549. The criteria are set out in Annex 11 ibid. and relate to the prevention of soil erosion, maintenance of soil organic content and soil structure, carbon capture, protecting water courses and groundwater supply, and landscape features.

111Common Agricultural Policy (Control and Enforcement, Cross-compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263, reg 3.

112Article 94 of Regulation 1306/2013 of the Council and the Parliament on the financing, management and monitoring of the CAP (the ‘horizontal’ regulation), OJ 2013 L347/549.

113Article 93.3 ibid.

114See Art 28.3 of Regulation 1305/2013 of the Council and the Parliament on support for rural development, OJ 2013 L347/487, and Preamble recital (22): ‘Payments should contribute to covering additional costs and income foregone resulting from the [agri-environment] commitments undertaken and should only cover commitments going beyond relevant mandatory standards and requirements, in accordance wit the polluter pays principle’. And see Commission of the European Community (1999), Directions Towards Sustainable Agriculture COM (1999) 22 Final at para 3.2.1.

115Schedule 2 to SI 2015/3263.

116Ie The Common Agricultural Policy (Integrated Administration and Control System and Enforcement and Cross Compliance) (Wales) Regulations 2014 SI 2014/3223 (W328), Schedule 1.

117See Guide to Cross Compliance in England 2015 (Department of Environment Food and Rural Affairs, 2015), available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/397044/Cross_compliance_handbook_v2_web.pdf (last accessed 13 August 2015).

118See Common Agricultural Policy (Control and Enforcement, Cross-compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263, reg 18(1), Sch 2, para 2.

119Ibid, Sch 2, paras 3–6.

120As to which see the 3rd edition of this work at para 15.15 ff.

121Formerly the Common Agricultural Policy Single Payment and Support Schemes (Cross-compliance) (England) Regulations 2005 SI 2005/3459, reg 30; now Sch 2, para 2, Common Agricultural Policy (Control and Enforcement, Cross-compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263 (compliance with Highways Act 1980 ss 131, 134, 137 and 146).

122[2007] EWCA Civ 620; Case C-428/07, [2009] ECR 1-6355.

123See Klensch v Secretaire d’Etat a L’Agriculture et a la Viticulture (1986) C-201 & 202/85.

124GAEC 4, 5 and 6 in Annex 11 to Regulation 1306/2013 of the Council and the Parliament on the financing, management and monitoring of the CAP (the ‘horizontal’ regulation), OJ 2013 L347/549.

125Common Agricultural Policy (Control and Enforcement, Cross- Compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263, Sch 2, para 3(3).

126Ibid, Sch 2, para 3(4). In the case of damage alongside watercourses, the measurement of the length affected can also cross-field boundaries.

127SI 2014/3263, Sch 2, para 3(1).

128See Guide to Cross Compliance in England 2015 (Department of Environment Food and Rural Affairs, 2015), at pp 15–16 (guidance on GAEC 4 and 5) available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/397044/Cross_compliance_handbook_v2_web.pdf (last accessed 13 August 2015).

129See Common Agricultural Policy (Control and Enforcement, Cross-compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263, Sch 2, para 3(2).

130Ibid, Sch 2, para 3(2)(g).

131Ibid, Sch 2, para 3(2)(j).

132The Common Agricultural Policy (Integrated Administration and Control System and Enforcement and Cross-compliance) (Wales) Regulations 2014 SI 2014/3223 (W328), Sch 1, paras 5, 6 and 7.

133SMR 1 and GAEC 1, 2 and 3 in Annex 11 to Regulation 1306/2013 of the Council and the Parliament on the financing, management and monitoring of the CAP (the ‘horizontal’ regulation), OJ 2013 L347/549.

134See the guidance Guide to Cross-compliance in England 2015 (Department of Environment Food and Rural Affairs, 2015), at pp 12–13. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/397044/Cross_compliance_handbook_v2_web.pdf (last accessed 13 August 2015).

135Common Agricultural Policy (Control and Enforcement, Cross-compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263, Sch 2, para 4(4).

136Ibid, Sch 2, para 4(1).

137Ibid, Sch 2, para 4(2)(c).

138See the Common Agricultural Policy (Integrated Administration and Control System and Enforcement and Cross Compliance) (Wales) Regulations 2014 SI 2014/3223 (W328), Sch 1, para 1.

139See the guidance Guide to Cross-compliance in England 2015 (Department of Environment Food and Rural Affairs, 2015), above para 15.49, n 2, at p 12. There is an exception of land being managed for species rich natural grassland or for wading bird habitat if it is in an SI or subject to management under one of the agri-environmental schemes.

140GAEC 7 in Annex 11 to Regulation 1306/2013 of the Council and the Parliament on the financing, management and monitoring of the CAP (the ‘horizontal’ regulation), OJ 2013 L347/549.

141Common Agricultural Policy (Control and Enforcement, Cross-compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263, Sch 2, para 5(1).

142See ibid, Sch 2, para 5(2) for the exceptions applicable in England.

143See ibid, Sch 2, para 5(4).

144See ibid, Sch 2, para 2. And see Chapter 12 para 12.198 ff.

145See the guidance Guide to Cross-compliance in England 2015 (Department of Environment Food and Rural Affairs, 2015), above para 15.49, n 2, at pp 20 ff.

146Common Agricultural Policy (Control and Enforcement, Cross-compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263, Sch 2, para 5(5), (10).

147SI 2014/3263, Sch 2, para 5(8).

148Ibid, Sch 2, para 12(4).

149See the Common Agricultural Policy (Integrated Administration and Control System and Enforcement and Cross-compliance) (Wales) Regulations 2014, SI 2014/3223 (W328), Sch 1, paras 13, 14.

150Common Agricultural Policy (Control and Enforcement, Cross-Compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263, Sch 2, para 6(1).

151Ibid, Sch 2, para 6(3).

152SI 2014/3263, Sch 2, para 6(2).

153Similar rules are applied in Wales by The Common Agricultural Policy (Integrated Administration and Control System and Enforcement and Cross-compliance) (Wales) Regulations 2014, SI 2014/3223 (W328), Sch 1.

154Ibid, Sch 2, para 2 (breach of regs 4(b)(c) or 5 of SI 1993/1366 as amended). As to which see Chapter 14 para 14.76 ff.

155Ibid, Sch 2, para 2 (breach of regs 4, 9, 26 and 28 of SI 2006/2522 as amended). As to which see Chapter 12 para 12.159 ff. Similar rules are applied in Wales by the Common Agricultural Policy (Integrated Administration and Control System and Enforcement and Cross-compliance) (Wales) Regulations 2014 SI 2014/3223 (W328), Sch 1, para 10.

156Environmental Impact Assessment for projects involving the conversion of semi natural areas to intensive agricultural use, and for the restructuring of holdings, is considered in detail in Chapter 12 para 12.160 ff above. This is governed by the Environmental Impact Assessment (Agriculture)(England)(No.2) Regulations 2006, SI 2006/2522.

157Ie Environmental Impact Assessment (Agriculture) (England) (No 2) Regulations 2006, SI 2006/2522, regs 26, 28.

158Ibid, Sch 2, para 2 (breach of regs 5 (2) and 6 of SI 2007/2003 as amended). As to which see Chapter 14 para 14.81 ff. And see the Common Agricultural Policy (Integrated Administration and Control System and Enforcement and Cross Compliance) (Wales) Regulations 2014 SI 2014/3223 (W328), Sch 1, para 9.

159For the conditions applicable to heather burning see Chapter 14 para 14.82 ff.

160See the guidance Guide to Cross-compliance in England 2015 (Department of Environment Food and Rural Affairs, 2015), above para 15.49, n 2, at p 18.

161Ie under reg 7 of the Heather and Grass etc. Burning (England) Regulations 2007, SI 2007/2003, as to which see further Chapter 14 para 14.82 above.

162Wildlife and Countryside Act 1981, s 28(1), as to which see Chapter 13 para 13.11. above. Failure to comply with ss 28E(1), 28 P(6A), 28 P(8) and 31(5) are constituted breaches of cross-compliance by Common Agricultural Policy (Control and Enforcement, Cross-compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263, Sch 2, para 2.

163These are within GAEC 7d, which is intended to protect landscape features and provide for minimum levels of landscape maintenance. See generally Guide to Cross-compliance in England 2015 (Department of Environment Food and Rural Affairs, 2015), above para 15.49, n 2, at p 26.

164Compliance with the statutory land use restrictions in SIs set out in the Wildlife and Countryside Act 1981 is not included in the Schedule to the Common Agricultural Policy (Integrated Administration and Control System and Enforcement and Cross-compliance) (Wales) Regulations 2014, SI 2014/3223 (W328).

165Ie an operation that is likely to damage the conservation interest, and notified as such under Wildlife and Countryside Act 1981, s 28(4)(b).

166See s 28E(1)(a) or (b) ibid (as amended by the Countryside and Rights of Way Act 2000, Sch 9).

167As to which see Chapter 13 para 13.40 above.

168SI 2010/490, above Chapter 13 para 13.64.

169SI 2014/3263, Sch 2, para 2 (failure to comply with Town and Country Planning Act 1990, ss 2010 and/or 2011). As to which see Chapter 12 para 12.188 ff. This is GAEC 7c.

170See Town and Country Planning Act 1990, s 211.

171SI 2014/3263, Sch 2, para 2 (failure to comply with the Ancient Monuments and Archaeological Areas Act 1979, s 2). This is GAEC 7e. And see the Common Agricultural Policy (Integrated Administration and Control System and Enforcement and Cross-compliance) (Wales) Regulations 2014 SI 2014/3223 (W328), Sch 1, para 12.

172These are granted by the Secretary of State for Culture Media and Sport under s 2(3) of the Ancient Monuments and Archaeological Areas Act 1979, s 2(3).

173SI 2014/3263, Sch 2, para 2 (failure to comply with the Highways Act 1980, ss 131A, 134 (3), 137 and/or 146). This is GAEC 7b.

174See the Guide to Cross-compliance in England 2015 (Department of Environment Food and Rural Affairs, 2015), above para 15.49, no 2, at p 23.

175Case C-428/07, [2009] ECR 1-6355 (above para 15.45).

176The Common Agricultural Policy (Integrated Administration and Control System and Enforcement and Cross Compliance) (Wales) Regulations 2014, SI 2014/3223 (W328), reg 13 and Sch 2; the Common Agricultural Policy (Control and Enforcement, Cross-Compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263, reg 18(2) and Sch 3.

177Common Agricultural Policy (Control and Enforcement, Cross-Compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263, Sch 3, para 2; The Common Agricultural Policy (Integrated Administration and Control System and Enforcement and Cross Compliance) (Wales) Regulations 2014, SI 2014/3223 (W328) Sch 2, para 2.

178Article 91.2 of Regulation 1306/2013 of the Council and the Parliament on the financing, management and monitoring of the CAP (the ‘horizontal’ regulation), OJ 2013 L347/549.

179See ibid, Art 99.1.

180Article 99.3 of Regulation 1306/2013 of the Council and the Parliament on the financing, management and monitoring of the CAP (the ‘horizontal’ regulation), OJ 2013 L347/549. Council Regulation 73/2009 OJ L30/16 18.2.2009 If the breach was due to negligence, the penalty may be reduced.

181Article 99.2, ibid.

182See above Chapter 2 para 2.18 ff. For a review of the introduction and extension of the concept in European Agricultural Law see B.Jack, Agriculture and EU Environmental Law, (Ashgate 2009) at 66–79.

183Article 174(2), TEU; 6th Community Environmental Action Programme, Decision 1600/2002 of the European Parliament and of the Council, 2002 OJ L 242/1. And see generally Cardwell, M., ‘The Polluter Pays Principle in European Community Law and its Impact on UK Farmers’ [2006] 59 Oklahoma Law Review 89–113.

184See, eg, House of Commons Environment, Food and Rural Affairs Committee, The Mid-term Review of the Common Agricultural Policy, Third Report of Session 2002-03, HC 151, paras 52, 76 et seq.

185As in Article 99 of Regulation 1306/2013 of the Council and the Parliament on the financing, management and monitoring of the CAP (the ‘horizontal’ regulation), OJ 2013 L347/549.

186As to which see, for instance, the Conservation of Habitat and Species Regulations 2010, SI 2010/490, Chapter 13 para 13.64 ff above (implementing the requirements of the EU Habitats and Species Directive 1992).