Citation and commencement

1. This Order may be cited as the Environmentally Sensitive Areas (Western Southern Uplands) Designation Order 1993 and shall come into force on 6th May 1993.

Interpretation

2.-(1) In this Order-“

"agreement" means an agreement under section 18(3) of the Agriculture Act 1986 as regards land in the area designated by article 3;

"amenity woodland" means small scale woodland planted and maintained primarily for improvement of the landscape;

"conservation plan" means a layout plan (or plans) which categorises all the land on the farm, identifies areas subject to specific management measures and indicates the lines or sites of features to be protected or maintained and an attached (written) statement which outlines the specific management measures to be taken to protect or enhance the areas identified in the plan (or plans);

"enclosed land" means agricultural land enclosed by fences, hedges, walls or dykes for the closely controlled grazing of livestock, cropping or the maintenance of farm woodland;

"farm business" means a business or part of a business which engages in agricultural production for the purposes of trade;

"farmer" means a person who has an interest in agricultural land in the area designated by article 3 and who has entered into an agreement with the Secretary of State;

"grazing plan" means a written description of the time, duration and density at which livestock will be permitted access to grazing land and the action required to achieve such access;

"heather moorland" means areas of land in which heather (calluna vulgaris) and other dwarf shrubs (including bell heather (erica cinerea), cross-leaved heath (erica tetralix), crowberry (empetrum nigrum), blaeberry (vaccinium myrtillus), bog myrtle (myrica gale)) occur throughout the vegetation;

"make muirburn" has the same meaning as in section 39(1)(f) of the Hill Farming Act 1946((2));

"native woodland" means self-seeded woodland of native species or woodland derived from an originally naturally occurring woodland;

"overgrazing" means a deterioration in the condition of heather and/or other dwarf shrubs associated with moorland vegetation which has been caused by too high a level of grazing either throughout the whole year or at certain vulnerable times of the year;

"regenerate" means to perpetuate vegetation through self-seeding or vegetative growth;

"reverted improved land" means land, previously improved by agricultural management operations which, from an agricultural viewpoint, has degenerated and is now showing significant presence of plant species indicative of unimproved grassland;

"rough grazings" means land containing semi-natural vegetation including heathland, heather moorland, bog and rough grassland used or suitable for use as grazing;

"scrub" means low growing woody vegetation;

"stone buchts and fanks" means small enclosures formed by drystane dykes used to gather or shelter stock;

"unimproved pasture" means land used for grazing or mowing which is not normally treated with mineral fertiliser or lime and does not constitute rough grazing;

"upland vegetation" means vegetation types other than heather moorland which occur within the rough grazings;

"water margins" means an area of ground bordering an area of still or flowing water;

"wetlands" means any ground which is normally saturated with water.

(2) Any reference in this Order to a numbered article shall be construed as a reference to the article bearing that number in this Order.

Designation of Environmentally Sensitive Area

3. There is hereby designated as an Environmentally Sensitive Area that area of the Western Southern Uplands partly within the Cumnock and Doon Valley and the Kyle and Carrick Districts of Strathclyde Region and partly within the Nithsdale, Wigtown and Stewartry Districts of Dumfries and Galloway Region and which area is shown delineated red and coloured pink on the map marked "Environmentally Sensitive Area-“Western Southern Uplands" dated 30th March 1993 and signed on behalf of the Secretary of State for Scotland and deposited at the offices of the Scottish Office Agriculture and Fisheries Department, Pentland House, Robb's Loan, Edinburgh.

Requirements to be included in agreement

4. An agreement shall include the requirements specified in the Schedule to this Order as to agricultural practices, methods and operations and the installation and use of equipment.

Provisions as to breach of requirements to be included in agreement

5. An agreement shall include provision that-“

(a)in the event of a breach by the farmer of the requirements referred to in article 4, the Secretary of State may give the farmer notice in writing terminating the agreement forthwith and may recover from the farmer an amount equivalent to the payments made by the Secretary of State under the agreement or such part thereof as the Secretary of State may specify; and

(b)any question arising under an agreement as to whether there has been a breach of any of the requirements referred to in article 4 shall be referred to and determined by a single arbiter to be agreed between the parties, or in default of agreement to be appointed by the Chairman for the time being of the Scottish Branch of the Royal Institution of Chartered Surveyors and in accordance with the provisions of the Arbitration (Scotland) Act 1894((3)) or any statutory modification or re-enactment thereof for the time being in force.

Rates of payment under agreement

6.-(1) Subject to paragraph (2) below, payments mad e by the Secretary of State under an agreement shall be either at the rate of £14 per annum per hectare of enclosed land, with an additional payment of £2 per annum for each hectare of other land to which the agreement relates, or at the rate of £1,000 per annum per individual farm business, whichever is the lower.

(2) Payments in respect of farm businesses to which an agreement relates shall be at the rate of not less than £250 per annum per farm business.

7. Where an agreement identifies expenditure required to undertake additional farming operations specified in paragraph 10(b) of the Schedule to this Order, the Secretary of State shall make additional payments according to the farming operations to be carried out. Such payments shall be at a rate to be determined by the Secretary of State, up to a maximum rate of £150 per annum for each hectare of land to which the agreement relates, or at the rate of £6,000 per annum per individual farm business, whichever is the lower.

Article 4

SCHEDULEREQUIREMENTS TO BE INCLUDED IN AN AGREEMENT AS REGARDS LAND WHICH IS THE SUBJECT OF AN AGREEMENT

1. The farmer shall avoid damaging rough grazings, unimproved pasture, reverted improved land, wetlands, water margins, native woodland, amenity woodland and scrub by ploughing, new drainage, modifying existing drains, levelling, re-seeding or cultivating.

2. The farmer shall avoid damaging rough grazings, unimproved pasture, reverted improved land, wetlands, water margins, native woodland, amenity woodland and scrub by poaching, feeding practices or overgrazing.

3. The farmer shall not apply herbicides, pesticides, lime or fertiliser (including farmyard manure and slurry) to rough grazings, unimproved pasture, reverted improved land, wetlands, water margins, native woodland, amenity woodland and scrub, except that:

(a)herbicides may be applied to control bracken (pteridium aquilinum), spear thistle (cirsium vulgare), creeping or field thistle (cirsium arvense), curled dock (rumex crispus), broad leaved dock (rumex obtusifolius) or ragwort (senecio jacobaea) and, with the prior written approval of the Secretary of State, for the control of other plants; and

(b)lime and farmyard manure may be applied to unimproved pasture and reverted improved land with the prior written approval of the Secretary of State;

Provided that:

(i)any herbicides used must be applied by weed wiper, spot treatment, hand spraying, tractor mounted sprayers or, with the prior written approval of the Secretary of State, by other methods;

(ii)in the case of bracken, chemical control shall only be by means of asulam or other chemicals approved in writing by the Secretary of State.

4. The farmer shall make any muirburn in accordance with the standards set out in the Farming and Wildlife Advisory Group leaflet entitled "The Principles and Practice of Heather Burning" and published in 1988.

5. The farmer shall undertake to farm in accordance with the Secretary of State's Code entitled "Prevention of Pollution from Agricultural Activity: A Code of Good Practice" published in 1992 so as to prevent, or at least minimise, the risk of pollution of the water, air and soil environments.

6. The farmer shall not remove any dykes, walls, hedges or scrub unless authorised so to do in writing by the Secretary of State and shall maintain stockproof dykes in a stockproof condition and manage existing hedges which are in good condition in the interests of conservation.

7. The farmer shall avoid damaging or destroying any features or areas of historic or archaeological interest and shall follow the Secretary of State's guidance for the protection of such features or areas.

8. The farmer shall preserve the amenity value of the landscape by screening or removing unsightly waste tips and dumps and by the removal of abandoned ehicles and scrap metal and other rubbish.

9. The farmer shall obtain prior written approval from the Secretary of State before commencing the construction or significant realignment or improvement of vehicular tracks.

10. The farmer shall prepare and agree with the Secretary of State a comprehensive farm conservation plan for his land and keep this under review. Each farm conservation plan will cover a 5 year period of the Scheme and shall-“

(a)identify land and conservation features relevant to the requirements in paragraphs 1 to 9

(b)if appropriate to the farm unit, contain details of the following farming operations on or contiguous with rough grazings-“

(i)a grazing plan and other measures necessary to conserve identified areas of heather in their existing condition, to regenerate suppressed areas of heather, or to maintain and enhance other areas of upland vegetation;

(ii)a grazing plan and other measures necessary to conserve, enhance or extend areas of native woodland, amenity woodland and scrub and, if the farmer so wishes, limited amenity planting of trees;

(iii)if the farmer so wishes, measures to restore dykes, stone buchts and fanks, to standards consistent with conservation interests;

(iv)if the farmer so wishes, measures to improve the condition of features or areas of historic or archaeological interest.

Explanatory Note

(This note is not part of the Order)

This Order designates as an Environmentally Sensitive Area an area of the Western Southern Uplands partly within the Cumnock and Doon Valley and Kyle and Carrick Districts of Strathclyde Region and partly within the Nithsdale, Wigtown, and Stewartry Districts of Dumfries and Galloway Region (article 3). That area is designated for the purpose of conserving, protecting and enhancing environmental features of the area by the maintenance or adoption of particular agricultural methods.

The map annexed to and forming part of this note gives a general guide to the area affected by this Order. The detailed map showing the designated area can be inspected during normal office hours at the offices of the Scottish Office Agriculture and Fisheries Department, Pentland House, Robb's Loan, Edinburgh.

The Secretary of State may enter into a management agreement with any person having an interest in agricultural land in a designated area and the Order specifies the requirements as to agricultural practices, methods and operations which must be included in such an agreement (article 4 and Schedule).

In the event of a breach of the specified requirements, the Secretary of State may terminate the agreement and recover sums paid under the agreement (article 5(a)). Any questions arising as to whether a breach of such requirements has occurred may be determined by arbitration (article 5(b)).

Payments made by the Secretary of State under an agreement are to be-“

(a)at the rate of £14 per year per hectare of enclosed land, with an additional payment of £2 per year for each hectare of other land; or

(b)subject to a minimum payment of £250 per year for each individual farm business and a maximum payment of £1,000 per year for each individual farm business (article 6(1) and (2)).

Where an agreement includes the additional farming operations set out in paragraph 10(b) of the Schedule, additional payments are to be made at the rate determined by the Secretary of State subject to a maximum payment of £150 per year per hectare or at the rate of £6,000 per year for each individual farm business whichever is the lower (article 7).

Copies of the leaflet "The Principles and Practice of Heather Burning" published in 1988 may be obtained from the Farming and Wildlife Advisory Group or the Scottish Office Agriculture and Fisheries Department.

Copies of the "Prevention of Pollution from Agricultural Activity: A Code of Good Practice" published in 1992 may be obtained without charge from the Scottish Office Agriculture and Fisheries Department, Pentland House, 47 Robb's Loan Edinburgh.