Crofting law reform proposals: consultation analysis

4. Use of Common Grazings

Common grazings are areas of land used by a number of crofters and others who hold a right to graze stock on that land, with about half managed by a grazings committee. Highlighting a decline in use over time, the Scottish Government propose to remove certain barriers so that common grazings can more easily be used for wider purposes such as environmental initiatives.

The proposals seek to encourage the expansion of grazings committees and encourage grazings shares to be used through simplifying the processes while continuing to ensure all parties with rights in the common grazing are considered. Topics covered in this section include proposals on grazings committee duties and responsibilities, as well as views on enforcement and the use of specific types of shares.

Grazings Committee Duty to Report

Each grazings committee currently has a duty to report on the condition of the common grazing and of every croft - tenanted and owner-occupied - and must provide this information to the Crofting Commission. Many committee clerks have raised concerns about how uncomfortable this obligation makes them. To address this, the Scottish Government have proposed to no longer require a report on the condition of each individual croft, while retaining the option for grazings clerks to include this information if they wish to do so. As shown below, three quarters of those who answered agreed with this proposal.

Meetings of grazings shareholders

Several procedural matters about meetings of grazings committees are set out in the consultation paper. The Scottish Government have proposed specific changes to:

• The operation of grazings committee meetings
• The nature of public notifications
• Clarifying that meetings to elect the next committee can be taken before expiry of the previous committee’s term
• Allowing email communications from grazings committees to shareholders.

Link between grazings share and inbye croft, and duties of grazings shareholders

Some grazings shares have become separated from the ‘parent’ croft and are deemed to be separate and distinct crofts in their own right, known as ‘deemed’ crofts. There is currently no automatic inclusion of grazings rights when a tenant purchases their croft.

The Scottish Government is considering how to make this clearer, for instance, by requiring the use of a standard form of words when the grazings right is to remain attached, or providing that the grazings right continues to be associated to the croft by default, unless the parties specify otherwise.

Over a third of respondents provided open comments in response to Q3.4. In line with the preference for more legislation recorded in the closed question, legislation was the focus of the majority of comments. These comments stressed the need for legislation to prevent the separation of grazings rights from crofts, following by the need for legislative clarity.

Legislate to avoid separation of grazings rights

Many respondents called for automatic grazings rights to be included with the parent croft, often alongside a call for deemed crofts to end. Perceived disadvantages of deemed crofts were given, such as limiting the rights and crofting activity of the crofter; the risk of ownership of grazings shares becoming concentrated; and crofting communities becoming fragmented.

“Ideally, deemed crofts and grazings shares should stay with their parent croft. The loss of a grazings share may seriously damage the viability of a croft, especially where the crofter wishes to keep livestock.” - Highland Good Food Partnership

Improve the clarity of legislation

Greater legislative clarity was suggested by some respondents, the second most common theme. A few suggested that clarity was needed more than additional legislation. Improved guidance, with examples, was suggested by one individual. Another argued that anyone confused over whether grazings rights were included with the croft would be unlikely to be aware of a standard form of wording. This respondent also called for clarification on a range of issues such as whether separation would be possible after purchase and what mechanisms would be used if so. Participants in the Oban stakeholder event felt there was insufficient awareness of deemed crofts and grazings shares, which had led to instances where a croft had changed hands, and the share was allocated to the new owner who did not want it.

There is already some confusion and lack of information about some common grazings which can have an impact on other graziers wishing to undertake, for example, joint ventures. Purchase of croft and grazings rights should be open and transparent to all parties.” - Woodland Trust Scotland

Around a quarter of respondents gave a follow-up comment. These comments were generally supportive of the proposals. The most common theme was that the proposals could help manage crofter activity, that more enforcement in this area was needed and comments endorsing the proposals.

Helps to manage crofter activity

Several respondents felt that the proposal would be helpful in holding crofters responsible for fulfilling their crofter duties. Views included that absentee shareholders made it more difficult to achieve crofting goals or did not contribute to crofting communities, and that there was a need for shares to be used productively. One organisation felt participation in grazings committees should be the measure on how duties on grazings shares were upheld, rather than a requirement for everyone to individually use their share.

“There needs to be a way of stopping crofters from holding on to grazings shares when they have sold or assigned a tenancy where the grazings have a form of income such as wind turbines. Losing the grazings share can affect the viability of the croft and income from the share should be going back into crofting.” – Individual

General agreement

The proposal was supported by some who gave general reasons for their support, such as that all crofters should have the same duties and that it would enable more access to land and simplify legislation.

“Where stand-alone grazings shares already exist I do not see why they shouldn't be accompanied by the same responsibilities as other crofting rights.” – Individual

Provides additional enforcement

Some agreed enforcement was needed in this area. Respondents perceived not enough was being done currently to enforce non-compliance or that enforcement was necessary. One questioned whether the proposal would apply to sheep stock clubs^[6]. This individual perceived some crofters had sold their croft, but retained common grazings shares for financial gain from these clubs.

Need to retain flexibility

A few highlighted the need to retain an ability to determine cases individually. For instance, flexibility around the residency duty to allow for temporary residencies elsewhere or to take account of local housing shortages was noted.

“Except that if other regulations evolve to reflect changing land uses, and to promote more pragmatic flexibilities in crofting, then the residency definitions may need to be linked to different type of land use.” – Individual

Other issues

A few cautioned against over-regulation or felt the proposal was not necessary. A few expressed their opposition to stand-alone grazings shares, with two suggesting these should be re-united with their parent croft. One felt land use was a private matter and another felt it could impact negatively on succession:

“The residency laws have led to many people being forced to give up land which has been in their family for generations, when they could easily have retained the crofts and rented them at a reasonable rate to someone else. This obsession with 'ownership' is cutting people's ties with their family heritage. Why does it matter whose name the croft is under, so long as it is used?” - Individual

Around one in three left comments to explain their answer to Q3.7. In contrast to the closed question results where a majority supported the proposal, those who commented most frequently advocated for shares to be retained, with a wide range of suggestions on how these could be managed. The most common theme was the need for safeguards. There were mixed views over how vacant shares should be managed, including that shares should be held as ‘vacant’ or ‘holding’ for future crofters, followed by suggestions that landlords should be involved in decision-making, then grazings committees/townships. Other less common themes were expressions of broad agreement with the proposal; that the situation was unlikely; and general suggestions on using vacant shares.

Comments on process or safeguards required

The most common theme was comments on the process or need for safeguards. The majority of these supported the proposals, or were unsure, and suggested caveats or safeguards, such as, shares should only be dissolved if there is no croft in the township without a share, or only as a last resort. Some comments suggested that dissolution could only occur once proper process had been followed, with stronger enforcement or with the agreement of the grazings committee. Some felt safeguards could be introduced, such as those relating to decision-making criteria, timescales, and clarity on how to address conflict of interests.

“But surely there is a caution here, many of the proposals and the evolved grazing practices mentioned, could lead to the common grazings ending up in a very few hands. And whilst that might be acceptable depending on the level of active crofters there should also be safeguarding to ensure that should existing or new crofters need to use the common grazings then it must be incumbent of the committee to disaggregate disproportionate shares for the betterment and sustainability of the local crofting community.” – Individual

Shares should remain in place

Some felt that instead of dissolving vacant grazings shares, the shares should be held by someone temporarily until a new stakeholder could be found. It was argued this would maintain the integrity of the township, allow for future use and retain the share with its associated croft. Suggestions included temporarily letting the share, offering the share firstly to the crofter of the croft originally associated with the share, with dissolving or redistributing shares only as a last resort.

“If a new shareholder cannot be found, a vacant share should be retained as it is and passed on to an existing shareholder, i.e. crofter, or remain vacant until a new shareholder can be found.” – Individual

Landlord should be involved in decision-making

A similar number of respondents felt landlords should have a say in decisions taken about vacant shares, with views ranging from landlords having sole decision-making authority to the need to ensure they are involved early in the process and that an agreement is reached with landlords. A number of organisations supported landlords re-letting vacant shares. The Law Society of Scotland suggested the Crofting Commission could take over this role if landlords did not re-let the share, with the introduction of a new duty allowing the Crofting Commission to serve a notice on the landlord/landowner asking for letting proposals in such circumstances.

“Assuming there is a grazing committee then in conjunction/and agreement with the landlord they should jointly have the duty to transfer them to a new parent croft. The landlord has an interest as there will be apportionment of 'rent' liable for that share. In the case of no grazing committee it would be the responsibility of the landlord. It would revert to the landlord and existing crofters could acquire it by agreement with the landlord.” – Individual

Grazings committees should be involved

Some suggested that vacant shares could be held by grazings committees, and later redistributed to the local township or community should a shareholder not be found. They argued this was preferable to dissolving such shares and would support new entrants into crofting. One suggested any vacant shares could be managed by the grazings clerk.

“If a new shareholder cannot be found, the shares should not be dissolved as this removes them from future use and leads to a gradual erosion of common grazings over time. While shares may not be of interest to local crofters in the present moment, they should remain available for new entrants and future generations who wish to make use of common grazings. We should be aiming to build and regenerate a thriving crofting sector in Scotland, which will mean more engagement with common grazings in future.” - The Landworkers' Alliance

Other comments

Some respondents left comments giving their general support for the proposals, though most did not go into detail as to why. A few felt it unlikely that situations would arise that would require share dissolution, as shares were sought after. A few suggested retaining the share and opening it up to others, though these did not refer to who should have responsibility for managing vacant shares. Participants in the Spean Bridge stakeholder event felt shares held but not used by a crofter could be divided among the active stakeholders permanently, rather than on a seasonal basis, as is currently the case. Participants there also felt that the Crofting Commission should reallocate any shares, given the potential for local tensions if the grazings committee held responsibility for this.

“This [proposal] would be a great move. It would give the grazings shareholders an opportunity to maybe put some of their grazings into use for the wider community or for more environmental uses, without losing their individual "share" of grazings.” - Individual

Use of common land

The consultation paper notes that while legislative provision exists to allow schemes led by grazings committees or an individual crofter for forestry or ‘other purposes’, it can be difficult for crofters to obtain consents for schemes for ‘other purposes’. The Scottish Government therefore proposes to widen the existing provisions to encompass peatland restoration schemes, biodiversity schemes, and other schemes related to carbon sequestration, habitat restoration or environmental improvements.

A third of respondents left open comments to explain their answer. Most frequently these comments shared views on environmental projects. Other common themes were issues with carbon sequestration schemes and specific suggestions, such as on the process or enforcement.

Comments on environmental schemes

Many respondents expressed support for the use of common grazings to undertake environmental projects or gave views on this. The extent of peatland on common grazings land was highlighted and it was felt barriers to enabling environmental work should be removed. Caution was expressed around how best to use peatland, such as being careful that forestry schemes did not damage peatland or that there should be a presumption towards native tree species planted in mixtures. A few called for greater definition of ‘environmental improvements’, and Historic Environment Scotland suggested schemes relating to and benefitting the historic environment should be included. One respondent felt wind farms or battery storage facilities should be excluded.

Specific suggestions

Many provided caveats alongside their comments of support. These spanned additional aspects to take into account, or ways environmental schemes could work. Points included:

• Agreement subject to qualifications: where private finance does not require land acquisition; where it makes sense to do so; and if the landlord’s consent is obtained in matters that will affect the landlord’s interest.
• Mechanisms needed: to ensure a management structure is in place; to resolve disputes between crofters; to monitor any approved schemes.
• Considerations during decision-making could include proportionality, sustainable crofting and the future viability of grazings.
• The need to ensure grazings committees are in place, that operate transparently.

“For 21st century business decisions an effective and definitive framework is essential for joint decision-making and implementing. It is theoretically possible for a landlord to be a member of the Grazings Committee, which is worthy of consideration, notwithstanding that to date this is not encouraged by the Crofting Commission.” - Individual

Carbon related issues

The second most common comment was on carbon benefits, notably around ownership rights of carbon. Many felt there was a need to clarify who had rights to any carbon generated through schemes. Views included concerns over how carbon credits would be divided between interested parties and the need to ensure crofters did not lose out. This was seen as an unclear area, with significant potential for unforeseen consequences such as trading or capturing carbon credits.

The need for agreements between relevant parties was also highlighted given carbon sequestration schemes may require long-term restrictions on land use.

More guidance or information is required

Some called for legislative clarity. A few felt forestry in crofting should be the model for operation, citing provisions in the Crofter Forestry Bill. Others felt forestry provisions were no longer appropriate because, for instance, there are now many more uses for land than when forestry regulations were devised.

Specific policy clarification was sought on:

• How progress within schemes would be measured;
• The potential unlimited financial liability of members of a grazings committee or shareholders;
• Enabling a crofter to draft a mandate to take to a grazings committee or landlord;
• Giving crofters rights to make investments and receive payments or grant aid funding.

“The model to use is the Crofter Forestry Bill: it gave crofters the right to plant, own, manage and use trees on their land, where previously the trees belonged to the landlord. The legal change has unleashed a great increase in trees and woodland on crofts and common grazings: bringing huge benefits to crofters, townships and nature. The same clarity of crofter ownership - and the right to make investments and receive payments or grant aid to manage the resource - is needed for all forms of natural capital.” – Individual

Common grazings should be used for specific purposes

There were concerns from some respondents that the use of common grazings for environmental schemes could restrict crofter activities. These included:

• views that such schemes would reduce the land available for grazing which could undermine crofting.
• that crofter rights to cut peat on their crofting land should remain.
• that croft land is there for working rather than for environmental benefits.

Some shared concerns about the potential for ‘greenwashing’^[7] and carbon trading. One individual felt affordable housing and creation of new crofts should be made easier.

Additional resource requirements

The need for further resources was the next most common theme. These included a few calls to compensate landlords who lose property rights as a result of a development. Other calls for financial resources included: funding to support environmental projects; independent advice for crofters; committee expenses; and for the Crofting Commission to undertake enforcement.

Support for crofter-led activities

Some gave their support for inclusion of the term ‘crofter-led’ to drive innovation in common grazings. This was seen as a way to retain natural capital; reduce the power of landlords and venture capitalists; and to acknowledge crofters’ understanding of their land and how best to use it.

The term "crofter-led" is important as care is required to avoid land use on common grazings to be unintentionally tied up for years to come, perhaps being in hoc to large corporations. Natural capital investment schemes carry with them long-term objectives and common land cannot be allowed to be "handed over" to large scale investors or their agents. Crofters must retain control.” – Individual

Use of Common Grazings for other purposes

The Scottish Government proposes to balance the interest of owners and crofters to ensure the rights of both parties are considered in decisions about the type of activity (other than agriculture and woodlands) that can be undertaken on common grazings. Currently if an owner does not approve the intended use, they can generally prevent it from happening. The proposal would see the introduction of a process similar to that operating on inbye croft land, whereby crofters can ask the Crofting Commission to decide should a landlord refuse consent.

Almost half of respondents left an open comment at this question. While a clear majority of those who answered the closed question agreed with the proposal, a wide of range of views were evident in open comments, with no clear consensus. These views included: that arrangements for common grazings should mirror that for inbye croft land; that crofting should be limited to certain purposes; issues with current arrangements; and the need for greater clarity.

Arrangements should mirror those for inbye crofting land

Some agreed with the proposal to introduce a process similar to that for inbye crofting land. Their reasons included that it would:

• Help modernise crofting communities.
• Keep pace with growth in environmental activities.
• Allow innovative development of land.

Issues with current arrangements

A few respondents described: a lack of guidance; support or advice for wider uses of common grazings; schemes proceeding between landlords and energy developers without consultation or notification; conflicts of interest; and a lack of regulation of decision-making in grazings committees.

Needs further information

The need for further detail or development of the proposal was highlighted by a few respondents. They called for greater consideration of the impact on future generations of crofters if common grazings were to be used long term for innovative schemes, and the need for adequate protection for landlords including recourse to the Scottish Land Court.

Other issues

A few respondents each noted that: agreement of all relevant parties was required to allow wider use of common grazings; more resources were required; and common grazings should be seen as different to inbye land.

Creation of new common grazings

Views were sought on whether landowners should be able to designate land as a new common grazing even if it is adjacent or contiguous to an existing croft, allowing them a more flexible range of options for land use. As shown in the following table, three fifths of those who answered agreed with this proposal.