This Bill is a continuation of proposed reforms to crofting in Scotland and was introduced to the Scottish Parliament at the beginning of March 2006. Currently the Bill is going through the Stage 1 parliamentary process, during which the general principles of the Bill are considered and agreed. Stage 1 has to complete by 30 June, and Stage 2 that will follow will look at the proposals in the Bill in line-by-line detail. Accordingly this briefing note provides a general overview only on the proposals under the current draft Bill, the detail of which may change during the remainder of the parliamentary process.
Current crofting legislation exists to protect the interests of crofters and to help to preserve and sustain rural settlements. Crofts are usually leased to crofters and their families, who have the benefit of security of tenure of the croft and protection from unreasonable levels of rent. Crofters have a right to buy their croft, and crofting communities can now apply to buy eligible croft land for the community. Although landlords may resume part or all of a croft, they can only do so with the permission of the Scottish Land Court, which has jurisdiction to deal with this and other matters relating to croft land, such as setting a fair rent.
Current Crofting law
The current legislation restricts the use of croft land to farming, or growing trees, although a crofter can erect buildings on the croft for some supplementary occupation, and crofters are entitled to compensation from the landlord for improvements like this that they have made to the croft, if the tenancy comes to an end, for example if the crofter renounces the tenancy.
A crofter has an absolute right to buy the site of his croft house and can also require his landlord to sell him all or part of the inbye land of the croft (i.e. the parts of the croft not comprising the hill and rough grazings, most of which is used for arable and grassland production), and may also purchase his share of the common grazings provided they have been apportioned. A crofter can apply to the Scottish Land Court if the landlord refuses to sell, or the parties are unable to agree terms, although the Land Court may decide to decline an application to buy croft land if it would cause hardship or be detrimental to the management of the land. Since 14th June 2004, crofting communities have been entitled to an absolute right to buy eligible croft land including communal land used by the crofters for grazing livestock, provided that they can satisfy Scottish Ministers that the main purpose of the purchase is consistent with furthering the achievement of sustainable development and that it is in the public interest.
It is possible for a crofter who is going to buy his croft to apply to the Crofters Commission to "decroft" all or part of the croft, and where the purpose of decrofting is to put a house on the croft, the Commission has to agree, but for other purposes, the Commission will consider the interests of the crofting community as a whole. The Crofters Commission was set up in 1955 and is responsible for developing crofting, overseeing crofting legislation and keeping Government advised of crofting issues.
There is no limit of time to a crofting tenancy, and they can be passed on to future generations. The tenancy can be assigned during the life of the crofter, either to a member of his family, if he has the consent of the landlord, or in the case of an assignation without consent or to a non-family assignee, the approval of the Commission must be obtained. Any sublet or subdivision of a croft must have Commission approval. The crofter may bequeath the tenancy to another person, but such bequest must be approved by the Commission, if that person is not a family member.
The proposals in the Crofting Reform Bill
The main objectives of the Scottish Executive for crofting reform (as identified by the Land Reform Policy Group) are:
- Making crofting communities more sustainable;
- Increasing local involvement and accountability in the administration of crofting;
- Simplifying existing crofting legislation and administration;
- Increasing the numbers of active crofters (or at least not fewer); and
- Widening the range of activities that can be undertaken by crofters.
The Bill addresses each of these objectives in a variety of ways.
The Crofters Commission
The functions and duties of the Crofters Commission are revised and refined by the Bill and its responsibilities are extended to specifically cover crofting communities, and some constitutional changes are made to align the organisation of the Commission more closely with other non-departmental government bodies. Changes include the ability of the Commission to employ its own staff, currently being staffed by civil servants.
The actings of the Commission will have to be compatible with the furthering of sustainable development of crofts and crofting communities, replacing the current general function which simply requires the development of crofting. It will be required to keep croft-based businesses and products under review, given that the Bill extends the types of uses to which a crofter may put the croft land, and will have power to lay down policies for separate local areas, after consultation with grazing committees as to the setting of area boundaries, and in conjunction with the setting up of local policy panels. The Commission will also have power to take action against a crofter who is in breach of the statutory conditions (other than non-payment of rent) if the landlord has failed to take action, and a landlord will also be able to make a complaint to the Commission in respect of a breach instead of having to take direct action against the crofter.
The Commission will no longer have to determine all applications made by crofters and landlords, although applications that relate to decrofting, apportionment and forestry will still require its approval. The Bill provides for standard general requirements for obtaining the consent or approval of the Commission and these will apply to applications to assign or sub-let and in relation to exchange or subdivision of a croft. The Commission will have the power to make arrangements for grants to crofters, and there will be new funding arrangements for the Commission itself.
Creation of crofts
The Bill proposes to allow the creation of new crofts, and to extend the creation of crofts beyond the crofting counties of Argyll, Caithness, Inverness, Orkney, Ross & Cromarty, Sutherland and Zetland, in an area that must be designated by an order. It may be on application of the landowner, or by an existing tenant of a croft sized holding outside the crofting counties, subject to conditions, and with provision for assessing compensation to be made to the landowner in those circumstances.
Use of Crofts
Significant changes are made to the existing statutory conditions that currently apply to crofts, as set out in Schedule 2 of the Crofters (Scotland) Act 1993, by permitting a crofter to use the croft for purposes other than cultivation, specifically: any planned or managed use, provided that the croft, the public interest, the interests of the landlord, or the use of adjacent land are not adversely affected. The Bill describes this as a "purposeful use", and requires that landlord's consent, which failing the approval of the Commission, must be obtained for an alternative use to agricultural purposes, although existing rights allowing ancillary purposes are unaffected, and the croft can be used for a mix of both agricultural and other purposeful use.
By introducing schemes for development, the Bill will enable development of croft land for non-crofting use – the obvious example being energy projects such as wind farms. Landowners will be able to apply to the Land Court with proposals to make a scheme for development affecting croft land and common grazings and which can include adjacent land.
The existing arrangements relating to compensation for improvements are amended so that the landlord will only be required to compensate the tenant for improvements to the croft to allow use for non-agricultural purposes permitted by the Bill, if the landlord has previously agreed to do so.
Access and boundaries
The Land Court has power to settle any disputes over boundaries of crofts. The Bill provides that where there is inadequate evidence to clearly identify the boundary, then the Land Court has the power to determine an appropriate boundary. A crofter can also apply to the Land Court for a determination allowing access to the croft from a public road where it would be reasonable for such access to be taken by a route lying wholly over land owned by his landlord.
Changes to croft holdings or tenants
Crofters will no longer be able to exchange crofts or parts of crofts without the consent of both their landlord and the Commission, and the crofters must have the same landlord, who also has to be the owner of the common grazing land that the exchange affects. However. the landlord's consent is no longer required for division of a croft, although the landlord has the right to object to a proposed division, and the rents for the resultant new crofts created by the division are to be agreed between the landlord and the crofter. Division of a croft will only have legal effect once recorded in the Register of Crofts, maintained by the Commission.
Any approved sub-let of a croft will be limited to a period of not more than 10 years, and the Commission can give special consideration in cases where there may be concerns over the use intended by the sub-tenant, or where the sub-tenant lives more than 16 kilometres from the croft.
Changes are also proposed to assignation of croft tenancies, to both family and non-family assignees. The requirement for landlord's consent to a family assignee is removed, although the landlord, or any member of the crofting community can object to a proposal for assignation to either a family or non-family assignee. The approval of the Commission is required to any assignation, and even if there is no objection, the Bill provides additional special conditions where the proposed assignee is not a family member, which if they apply, entitle the Commission to intervene, and these include a proposed assignee living more than 16 kilometres from the croft, or one that already owns or is tenant of a croft; or that an assignee does not have the knowledge, abilities and experience to cultivate the croft or to put it to an intended purposeful use. Other special conditions that apply are where the proposed assignee is the grazings clerk or a member of the grazings committee or, where the landlord is not an individual, for example where it is a company, the proposed assignee is a member or employee of the body which constitutes the landlord, or that there are reasonable grounds for concern over the use which the proposed assignee intends for the croft.
The rules relating to bequests and inheritance of crofts are also clarified or amended by the Bill. Crofts can only be bequeathed to individuals and not to companies or other organisations. A legatee must give notice of a bequest to the Commission as well as to the landlords, and an executor may also give notice, and detailed provisions are proposed relating to notification and handover, registration and objection procedures in these cases, retaining some of the existing provisions under the 1993 Act and adding new procedures. A legatee accepting a bequest of a croft will take on liability for any debts incurred by the deceased crofter as former tenant of the croft.
Prior rights of a spouse or a civil partner of a crofter are extended to the whole croft, not just the croft house, and also to a co-habitant where there is no spouse or civil partner. Executors of deceased crofting tenants are empowered to transfer croft tenancies as they consider appropriate, subject to the same requirements that would apply to an assignation by the crofter of the tenancy. If the executor is unable to find a replacement tenant for the croft, where the deceased made no testamentary provision, (and executors are given an extended period of twelve months from the relevant date in which to do so) there are simplified procedures in the Bill, which include the ability of the Commission to declare that the tenancy has fallen vacant, after due notification.
A landlord will no longer have a right to apply to Scottish Ministers for consent to re-let the croft where the Commission has refused to consent. Instead new procedures are set out whereby Commission approval should be sought, and the additional criteria that will apply.
Reorganisation Schemes
The 1993 Act provides for the Commission to be able to reorganise a crofting township where it is necessary for the preservation or the better development of the township, and this may involve the re-allocation of land within the township, the inclusion of land in the vicinity to enlarge the crofts or the common grazings, and admitting new crofters into the township. The Bill provides for the approach to such reorganisation to be simplified, and whereas currently Scottish Ministers have to confirm such schemes, under the new proposals their role will be limited to involvement only where the proposed scheme requires acquisition of land that is not in crofting tenure, and there will be a more extensive consultation and appeal process.
Proper occupiers
Proposals have been tabled by the Scottish Executive with amendments that they propose to introduce to the Bill at Stage 2, to introduce a "proper occupier" status for crofters, and distinguish between crofters who live or work on their crofts, and other owners of crofts. These proposals are intended to address concerns over abuses of the system of croft purchase to circumvent crofting regulation, since croft owner-occupiers are not subject to the statutory conditions that require them to cultivate the croft, and to make ownership of a croft less attractive to an owner who does not intend to use the croft for useful/croft purposes. Another hoped for effect of this is to make crofts more affordable by reducing non-crofter demand for the properties.
The proposal is to introduce the status of "proper occupier" which will initially apply to anyone who is the owner of a croft who was either the former tenant of that croft (or a successor in title of that tenant), but will not apply to an owner of a croft that is tenanted, nor to an owner that is a company, trust or partnership. The Commission will prepare and then maintain a register of proper occupiers of crofts.
Anyone who acquires a croft from a proper occupier will themselves become a proper occupier, and there will be a requirement for the purchaser to inform the Commission so that the register can be updated. Anyone acquiring a croft from someone who is not a proper occupier, which would include a tenant purchasing his croft, will have to apply for proper occupier status. An executor, a heritable creditor in possession or a trustee in sequestration will acquire proper occupier status for a year.
Special conditions, similar to those applicable to applications to assign, will apply to applications for proper occupier status, which will allow the Commission to intervene. It will also be open to the Commission to decide to withdraw proper occupier status from a person who does not ordinarily reside on or within 16 kilometres of the croft; or who is misusing or neglecting the croft or has not either cultivated or put the croft to some other purposeful use, or kept it in a fit state for cultivation or has failed to provide the fixed equipment on the croft required to enable cultivation, has let the croft (except for holiday lets) or controls more than 4 crofts either as owner or as tenant.
Where the owner is not the proper occupier of the croft, the croft can be regarded as vacant for the purposes of the legislation, which means that the Commission could require the owner to find a tenant or impose a crofting tenant on the croft.
Common grazings
The Bill also makes a number of changes to common grazings provisions in the 1993 Act, limiting the right of the owner to refuse consent for crofter forestry purposes, and providing for joint forestry schemes between crofters and the owners of the common grazing land. Common grazings could be used for purposes beyond those currently permitted, with the agreement of the other crofters having common grazing rights and the approval of the Commission, and such use must not be detrimental to the uses of other parts of the common grazings.
New common grazing can only be created if it includes land adjoining existing grazing. The Bill would allow a landowner to create new common grazing and it defines land that would be eligible for this purpose, which must be located within the crofting counties.
Often the use of common grazings will be governed by regulations put in place by a grazing committee. At present it is a criminal offence to contravene such regulations, and the Bill proposes to replace this with a civil procedure involving the Commission.
The Bill will allow apportionments of common grazings to the exclusive use of a crofter to be time limited and subject to review, with provision for reversion to common use when the apportionment ends or is terminated.
Amendment to the crofting community right to buy
The Bill contains a proposal that will amend the crofting community right to buy provisions in Part 3 of the Land Reform (Scotland) Act 2003, which gave crofting communities an absolute right to buy croft land and grazings. Following on criticisms of some landowners that they were exploiting a "loophole" in the Act and trying to circumvent the right to buy, by leasing property rights before a crofting community bought the land, the Bill provides that a crofting community that has successfully applied or is applying to buy land under the crofting community right to buy can also purchase the rights of tenants of leases over the land. It excludes leases which create a croft tenancy, a tenancy of a dwelling house or a statutory tenancy.
The Scottish Executive is preparing a reference to the Land Court for a determination as to the validity of a lease which has already been put in place which effectively would prevent development by the crofters of the land, who had applied to purchase the land, having obtained a law professor's opinion that the lease may not be valid without the consent of the Commission having been obtained. However, the provision in the Bill will effectively put a stop to this type of interposed lease arrangement, by allowing the crofters to buy any leases that have a commercial benefit, subject to the usual public interest and sustainable interests test and the approval of Scottish Ministers.
Termination and decrofting
The Bill provides a procedure for the landlord, or the Commission with the landlord's consent, to apply to the Land Court for an order removing a crofter if he or she neglects or misuses the croft. There are also changes made to the law on resumption of croft land and decrofting, both of which take the land outside the application of crofting tenure rules.
Currently, croft land can be resumed for some other reasonable purpose which includes using, letting or conveying the land proposed to be resumed for building houses, schools, churches, halls or community centres, or for providing allotments or planting, or for providing harbours, piers, boat shelters and the like or making access roads, or other purposes which will provide employment, as well to protect an ancient monument or other object of historical or archaeological interest from injury or destruction. The Bill will extend the definition of reasonable purpose to include using the land for the generation of energy, which will specifically allow resumption for wind farms and other energy generating enterprises. Temporary resumption will be permitted, which would allow a return to crofting tenure in the future if appropriate. Application has to be made to the Land Court for resumption, and the Bill provides that in addition to existing criteria which the 1993 Act lets the Land Court consider, the interests of the crofting community can be taken into account.
The Bill also provides for some changes to decrofting arrangements. If a croft which has become vacant because of action by the Commission remains vacant for six months, the landlord can give notice that it be decrofted. The Bill will allow the Commission to apply to the Land Court for an extension of time to allow more time to find a suitable tenant. The Commission must have regard to the interests of the crofting community before determining to decroft a croft property.
The full text of the Crofting Reform etc Bill is available from the Scottish Parliament website at: http://www.scottish.parliament.uk/business/bills/57-croftingReform/b57s2-introd.pdf
