Draft Crofting Reform Bill (2009) – Results of Scottish Government Consultation 26/11/09
Our ezine of 11 June 2009 considered the Scottish Government’s proposals for the reform of crofting in the 21st Century. The consultation process on the proposals was completed on 12 August 2009 and the Scottish Government published the responses and its analysis, 4 September. The Scottish Government received 422 responses and 540 people attended the 19 public meetings held to discuss the proposals. The majority of the responses came from individuals (73.6%) the rest coming from Common Grazings Committees, non Governmental organisations, local authorities, private estates, law groups, public bodies, Community Councils and MSPs.
The following is a summary of the responses to the draft Bill:-
Reform of the Crofters Commission
In what was possibly the least controversial part of the Bill, the responses were generally favourable with support for the principle of making the existing Crofters Commission more democratic and accountable. The proposals for setting up the individual area committees were not entirely welcomed with some respondents expressing concerns that this would lead to disputes within communities.
The Crofting Register
Whilst there was general support in principle for a new authoritative map based crofting register, concerns were expressed at the mechanism which many feared was likely to prove complex, costly and bureaucratic. There was little support within the crofting community for the cost of operating the register being borne by crofters applying to register their boundaries. Conversely there was lack of support by landowners’ representatives for the prospect of landowners having to meet the cost when ownership of a crofted estate changed hands.
Several respondents expressed concern that the process of applying to register croft boundaries could lead to disputes between neighbours and/or crofters and their landlords. The majority of respondents was opposed to the proposed events which triggered compulsory registration. Many of the trigger events were either involuntary (for example a transfer on death) or instigated by unilateral actions, in themselves possibly uncontroversial, on the part of the landlord or the crofter, but which would require compulsory registration not necessarily desired by either party.
Lawyers’ representatives considered that the period proposed during which an application may be challenged (only 6 months as opposed to a prescriptive period of 10 years for a valid title to land) and the basis for challenge (on grounds of administrative error only) were not satisfactory and gave insufficient scope for mistakes to be remedied.
Standard Securities over Crofts
This was possibly the most controversial part of the Bill and on the whole met with little enthusiasm whether from crofters, landlords or lawyers. A small minority of individual respondents welcomed the opportunity of raising finance on croft tenancies and took the view that a crofter taking the benefit of a loan should expect to comply with the ancillary obligations, primarily of course to repay the loan and interest.
Several respondents considered that securing Standard Securities over crofts was likely to be cumbersome and bureaucratic and probably unattractive to lenders due to the complexity of dealing with croft land. There was also a view that the proposals took little, if any, account of the landlord’s interest or the landlord/tenant relationship. Other respondents made the point that the idea of a corporate entity calling up a Standard Security and taking occupation of a croft was incompatible with the concept of crofting being a way of life for individuals and the need for a crofter tenant to be an individual person, not a corporate entity.
The Occupancy Requirement
Possibly the least popular part of the Bill was the suggestion that all houses built on land taken out of crofting control should be occupied by people living permanently in the community. The Local Authority was to monitor and enforce the occupancy requirement and to have power to impose a substantial civil penalty in the event of non-compliance. The idea was to prevent former croft houses becoming second or holiday homes. This proposal met with strong opposition from crofters and Crofting Bodies. Respondents also thought it undesirable, even if this were enacted, that responsibility for monitoring and enforcement should be handed to the local authority rather than the Crofters Commission. The Scottish Government has indicated that this part of the Bill will be dropped.
Crofting Regulations
This part of the Bill concerned primarily the status of owner occupiers (crofters who have purchased their croft) and the strengthening the Crofters Commission’s ability to tackle absenteeism and neglect of croft land. The proposals here were generally welcomed by respondents.
Where do we go from here?
The Minister for Environment is now considering the responses to determine what amendments are needed for inclusion in a Crofting Bill. The occupancy requirement will be dropped and alternative solutions sought for addressing speculation on croft land.
In September 2009, the First Minister announced a legislative programme for the forthcoming year, which included a Crofting Bill. A Bill may therefore be expected possibly before Christmas.
Further information
For further information on this or any planning issue, please contact Alasdair Fox, Adele Nicol or your usual contact within the Land Resources Department.
This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.
