Crofting law reform proposals: consultation analysis

3. Crofting Communities

The Scottish Government proposes to provide greater clarity over the definition of “crofting community” and address various references to “district”, “area” and “locality” where they appear in the Crofters (Scotland) Act 1993 in relation to crofting communities.

It is proposed that “crofting community” continues to be the local crofting presence in a particular place – defined as the crofters within a particular township or with shares in a particular grazing, as listed in the Register of Crofts. These people have the right to be consulted on a proposed change of land use by a crofter when such an application goes to the Commission because the landlord has not given consent. Due to the potential for increased objections arising from extending the right to object to an application, it is proposed to continue to limit this right to crofters and grazings shareholders in the same township or same common grazing. However, the requirement that to qualify as a “township” there must be two or more crofts, will be removed, because some other township rights are relevant even if there is only one croft.

There is also a proposal for the Crofting Commission to consider sustainability of crofting across the parish, as recorded in the Register of Crofts, when a decrofting application is made. This would clarify the current requirement to consider the sustainability of crofting in the “area” and the potential demand for the croft when taking decisions on decrofting.

Extent of crofting community rights

Over a third of respondents left an open comment to explain their answer. While two thirds of those answering the closed question supported the proposal, a majority of those who left a comment disagreed with the proposal in some way. The most common view was that the right to object to applications should be extended to the wider community. The next most common theme was for the right to be extended to crofters elsewhere.

The wider community should have a say

Many felt that crofting decisions affected the wider community, and therefore they should have a right to be involved. These, mostly individual respondents, called for non-crofters and community organisations – particularly in townships – to be heard. Reasons included: a perceived conflict of interests between landlords and crofters; that locals were more informed than absentee crofters or landlords; that crofts were “seen as just a building site”; and that opening up the right to object would enable potential future crofters to comment.

“We consider that applications to decroft, other than for a statutory house site, may benefit from wider representation to best balance the needs of the crofter alongside the retention of land within the crofting system. As crofting is supported for the multiple and diverse benefits it delivers for the Highlands and Islands, applications to remove land from crofting should be open to representation that extends beyond the township/grazings concerned.” - Highlands and Islands Enterprise

“If we are to protect crofting communities for future generations, then it is vital that the right decisions are made and we see no reason why other parties such as those living in the township that do not currently have crofter status, community council representatives, development trust representatives, etc could not be afforded the opportunity to object.” - Scottish Crofting Federation

Crofters elsewhere should be included

Among those who commented, the second most common theme was that the wider crofting community should be involved in crofting decisions. The potential benefits were described as the creation of sustainable communities and that crofters outwith the local community may be more likely to report formal objections than locals who may be reluctant to comment on their neighbours’ plans or activities.

Potential crofters should have a say

Allowing those aspiring to be crofters to have a say in crofting decisions was suggested by some, given such decisions could affect any potential ability for them to gain a croft. Allowing the wider community the right to object was seen as a way of achieving this.

Other issues

A few felt that improved communication was needed, notably guidance such as on what kind of objections would be considered.

“It would also be helpful for all of those who consider objecting to be provided with guidelines as to what kind of material issues would be considered in a similar way to planning authorities. This could have the effect not only of reducing the number of spurious objections that waste everyone's time, but encouraging those with legitimate reasons as they will have clear indication that their concern is one that will be considered.” - Scottish Crofting Federation

Four fifths of those who answered the closed question agreed that the Crofting Commission should weigh up the sustainability of crofting across a parish. Just under one third of respondents left a comment explaining their answer. Comments on the definition of the most appropriate area was most common, followed by opposition to decrofting and that crofts should be maintained.

Comments on regional areas

Comments on the geographical area used by the Crofting Commission when considering decrofting applications was the most common theme, raised by many. Various views were expressed. Some agreed the parish was an appropriate boundary while others suggested alternatives including restricting this consideration to townships or extending it to the whole crofting community, not parishes. Participants in the Portree stakeholder event highlighted that the sustainability of crofting sometimes depended on an area larger than a parish, for instance, if a store selling crofting supplies closed, this could make crofting less sustainable across its entire catchment area. A few felt the term “parish” was out of date or obsolete and potentially off-putting to younger people.

“Specifying ‘parish’ could be problematic. Crofting townships near the edges of parishes should not be considered solely in the context of their own parish, but also in relation to the nearby townships in neighbouring parishes. This is where the subjective term “area” is superior to the specific term ‘parish’.” – Individual

“'Parish' is a very arcane boundary for delineating the area to be considered. Better to do this at the township level and at local authority election ward level - both of which have legal boundaries that are in current use.” – Individual

Opposition to decrofting

Several respondents expressed a general opposition to decrofting, or to use it as a last resort. Comments included that: decrofting is detrimental to the crofting community; has considerable consequences particularly for smaller crofts; and that decrofting of whole crofts should be banned. A few had negative perceptions of the purpose of decrofting, suggesting that decrofting was predominantly used to create second homes or holiday lets or to make large financial gains from property construction. Members of the Tiree stakeholder event suggested limiting how often parts of a croft can be decrofted.

“There should always be a presumption against decrofting except where absolutely necessary.” – Individual

Assess each case on merit

Decrofting applications should be assessed on individual merit, according to some. Suggestions included making it a power rather than a requirement for the Crofting Commission to consider sustainability of crofting at parish level, historic use of the croft and priorities in the local area.

Legal issues

Legal matters were raised by some respondents. A few highlighted existing legislation, for instance, that enables the Crofting Commission to consider sustainability of crofting at parish level^[5] or to regulate decrofting.

Two respondents raised issues about the size of decrofted sites. One called for ‘feu’ area to be updated so that land topography, usage, and definition of ‘amenity ground’ are taken into account. They argued that an increase in the size of the area allowed to be decrofted for domestic use could allow more use of gardens for growing produce or keeping chickens, suggesting one acre for amenity land was sufficient. The other felt all house sites for decrofting should be at least 0.3ha and possibly 0.5ha to accommodate residential living features such as areas for fuel tanks and adequate parking space.

Reporting a suspected breach of duties

Legislation currently gives members of a crofting community, as well as grazings committees, a grazings constable, or a Crofting Commission Area Representative, the right to report a suspected breach by a crofter of their crofting duties, which triggers a requirement for the Commission to investigate. The consultation sought views on whether the right could be opened to other groups.

Public notification, service of notices and meetings

Several provisions in the Crofters (Scotland) Act 1993 state that a public notification must be made by either an applicant or the Crofting Commission. This involves placing an advert in one or more newspapers in the district in which the croft or common grazing is situated. Due to emerging technology and current media outputs, the Scottish Government sought views on alternatives, for instance, using the Crofting Commission website for the purposes of public notification.

The Act also makes provisions for meetings to be held, such as when appointing a grazings committee or when a grazings committee wish to discuss and vote on a proposal to use the common grazings for other purposes. The Scottish Government sought views on whether these meetings could also be held on-line or as a hybrid meeting, as well as in-person.

As shown in the following tables, widespread support was recorded for both proposals.