Crofting law reform proposals: consultation analysis

7. Simplifying Crofting

The Crofting Register, containing information on the boundaries of croft land, is maintained by the Keeper of Registers of Scotland. Mistakes can only be rectified where a mistake has been made by any of the following: the original applicant, the Crofting Commission or the Keeper. At present, the Keeper cannot take the initiative to rectify a mistake by the original applicant or the Commission but must wait until asked to do so. Views were sought on whether to extend powers of the Keeper of the Registers of Scotland to correct mistakes without recourse to the original applicant, and on whether relevant landlords should receive a copy of registration applications.

Other matters considered in this chapter include personal information on the Register; first registration of a croft upon purchase from a landlord; and enabling crofters and landowners to set up a permanent crofting right of access. The purpose of these proposals is to simplify matters and to clarify or correct specific aspects of law.

Crofting Register Rectification

The Scottish Government propose to amend the rectification legislation to extend the powers of the Keeper to rectify the Crofting Register when aware of an inaccuracy, with or without prior request, and to correct typographical errors in the Register outwith formal rectification provisions. The purpose of these changes is to simplify and improve cost-effectiveness of rectifying mistakes on the Register. A further two changes are proposed. These are to extend the definition of ‘original applicant’ to include an executor of an original applicant (and certain others), and that a tenant crofter must serve notice of the registration application on the landlord, giving the landlord a specified time period to respond to the crofter, if they choose to do so.

Over 90% of those who answered agreed with this proposal, which was the highest level of agreement recorded across all the consultation questions.

Around one in five respondents left an open comment explaining their answer to Q6.2. While there was broad support for the proposal in the closed question, the main theme raised by those who commented was that it was not worth making the changes. Other themes covered absent landlords and general agreement with the proposal.

Making changes is not worthwhile

A perception that the proposals would complicate matters, increase bureaucracy, or place an increased burden on crofters was expressed by some. A few felt it would require additional input by landlords, which could cause delays. Others stated that change was not required.

Absent landlords

Some left comments on landlords being remote or absent. Comments included: that landlords were unaware of, or disinterested in, the boundaries of the croft land they owned; that it could lead to landlords delaying proceedings; or that there could be issues contacting them.

Agreement with the proposals

Agreement over aspects of the proposals were given by some respondents, such as one who simply commented “Yes, this is essential”. Two agreed that landlords should see the application even if no further action was required. Registers of Scotland gave their general support for the proposals that impacted them and those on registration.

Other suggestions

Some made other suggestions, two of which were that title deeds should also be checked to highlight any discrepancies over croft boundaries. A few commented on the need to review croft registration or to consider the expense, including legal fees, to crofters of assignation applications. One respondent felt crofters in the township should be notified as well as landlords.

Comments on the ‘original applicant’ proposal

A few comments were received on the proposal to widen the definition of ‘original applicant’. Two legal organisations highlighted that executors were now covered by case law, with the Law Society of Scotland citing the specific legal case. The Law Society of Scotland proposed an alternative approach whereby the original applicant could be replaced by allowing either the landlord, tenant or owner-occupier of the croft to bring such matters to the Keeper’s attention.

Two, however, felt legislative change offered an opportunity for greater clarification in this area. Camus Consulting felt it could be clarified that there is no need for every executor of an original applicant to go to the Scottish Land Court. In addition, an individual noted greater clarity would help avoid problems that could occur when the ‘original applicant’ was mistakenly believed to be the applicant who first registered the croft, rather than the original applicant of that application.

First Registration upon purchase from Landlord

The Scottish Government sought views on whether crofts bought by tenant crofters should be registered in the Crofting Register. Currently, unlike other purchases, this is not required and therefore it is proposed to bring this type of purchase into line with other types of croft purchases. As shown below, almost 90% of those who answered agreed with this proposal.

Personal Information for the Register of Crofts

No requirement exists for owner-occupier crofters to give the same personal information for the Register of Crofts as tenants. Therefore, as above, it is proposed to create parity between tenants and owner-occupiers by requiring owner-occupier crofters to give the same personal information for the Register of Crofts as tenants. As shown in the following table, the vast majority of those who answered agreed with this proposal.

Timescales for Crofting Commission decisions

The current legislation sets out that the Crofting Commission should meet timescales for four types of decision. These are described more fully in the consultation paper, but cover:

• Applications to put crofts to another purposeful use (where the landlord’s consent has not been given).
• Obtaining consent to be absent from the croft.
• Determining whether a crofter is in breach of duties.
• Deciding whether to accept an undertaking by a crofter as to how and when a breach will be rectified.

These four decisions are currently subject to a statutory deadline, with determinations required within a fixed period. The Scottish Government propose removing the deadline for the four decisions and to bring these decisions in line with other decisions the Commission must take, and to increase the Commission’s efficiency.

Views on this proposal were mixed. Just over one third (37%) agreed with the proposal; this is the lowest level of agreement recorded across all the proposals presented in the consultation. A further 36% disagreed with the proposal and 27% were unsure.

Over a quarter of respondents left a follow-up comment explaining their response to the closed question. The main theme that emerged from these comments was to retain the deadlines for making decisions for these four types of decision.

Deadlines should be retained

The most common view raised was that having a deadline to make these decisions was necessary. This was mainly due to crofters needing some assurance over timescales, during what could be a stressful time. A few specifically noted that the Commission’s decision whether to give its consent to an application by a crofter to be absent often needs to be timebound to enable plans to be made. A few felt removing deadlines could have an adverse impact, such as lengthening rather than shortening decision-making.

Suggested mitigations should deadlines be removed included: having a set of working practices requiring decisions to be made within reasonable timescales; requiring a customer service standards document to be published in a reasonable timeframe and to be reviewed periodically; or replacing deadlines with realistic service level agreements. Another suggestion was that the Crofting Commission could have discretion to extend deadlines if necessary.

The Crofting Commission should be accountable

Concerns were raised by several around current timescales, leading some to express views that the Crofting Commission should be accountable to the Scottish Government for the time taken to make decisions. Comments included that there should be more rigour and transparency in decision-making, for instance, to ensure that people know at any given time what stage their application is at. It was suggested the Commission could be held to account by introducing performance indicators in this area, publicising procedures or reporting against non-statutory performance standards.

Access Rights

To facilitate greater access to different crofts, the Scottish Government propose to create a straightforward mechanism for setting up a permanent access right across tenanted crofting land. This would align with property law that allows for rights of access between neighbouring landowners. As shown below, four fifths supported this proposal.

Clarification and Corrections

The consultation paper sets out a proposed number of clarifications and corrections in legislation. These cover a range of issues, including decrofting without a stated purpose; notification of change of ownership of croft land; apportionment; assignations; and maximum length of a sublet. Please refer to the consultation paper for the full list and further information on these.

Q7.1 If you wish, please add any comments on any of the proposed clarifications set out in this section of this consultation.

A quarter of respondents left a comment on any of the proposed clarification and corrections. These comments covered many themes, which are presented below from most common to least. Many of the points raised touch on themes raised earlier in this report but have been repeated here in the context of the clarifications and corrections.

Agreement with the proposals

Most respondents were in general agreement with the proposals. Most commonly, the proposals were considered sensible and reasonable. In addition, one commended the Scottish Government for the inclusive approach taken to developing the proposals and for the intention to modernise the law.

Decrofting without a stated purpose

Some individuals commented on decrofting. A few agreed that decrofting applications should include a stated purpose, with one adding that so long as a valid purpose was defined as “any purpose which adds value to a crofter’s business”.

Other broader comments included: that local people should have a say in decrofting decisions; that the owner should be able to decide how to use or decroft their land; and that more thorough scrutiny was required before decrofting is permitted.

Apportionment

Comments on apportionment were the third most common theme. Two felt that apportionments should be reviewed, while another two opposed this. Other comments included that more information is needed on this area, for instance, one suggested temporary apportionments was an unclear area and a few felt that greater evidence of an apportionment taking place was needed.

Policy plan preparation timescale

Some commented on the plan to extend the deadline for the Crofting Commission to produce a policy plan. One agreed it should be extended to 12 months while another thought a nine month deadline was preferable. Three suggested improvements to the plan. These included reviewing outcomes of the current plan and then determining future content, or ensuring the plan goes beyond laying out statutory duties and focuses more on setting out priority actions for how crofting principles will be promoted. For example, how sustainable development or entry into crofting will be addressed. Two felt staggering board membership could prevent a situation where members were all new and had not developed the necessary knowledge and expertise to devise a plan.

Notification of change of ownership

Some comments were received on the proposal to clarify responsibilities of the purchaser for notifying the Crofting Commission in cases of all changes of ownership. A few commented on the need for change within the fee structure for the registration fee, notably that fees should be proportionate and that currently, for those with large crofting estates, they were not. A cap on fees or a fee scale was suggested as a solution. One respondent felt it unnecessary to notify the Commission of a change of ownership. Conversely, one legal organisation argued for tougher penalties in this area:

“Notification of a change of ownership of croft land is a huge and increasing problem. There ought to be tougher and better publicised penalties for failure to do so, and perhaps those who fail to correctly notify the Commission ought to be held responsible for future losses incurred by parties who suffer loss as a result of that failure.” - Camus Consulting

More broadly, participants at the Harris stakeholder event felt the practice of sending notifications to grazings committees should be reinstated, while participants at the Thurso event felt grazings committees should as a minimum be automatically notified of new applications.

Chairing meetings

Support was given for allowing flexibility over who could chair Crofting Commission meetings, with caveats expressed by a small number. These included that the guest chair should not have voting or decision-making rights and that it should still be the “right person with the right skills”. One individual felt it could be an “amazing opportunity” for chairing to be undertaken by “experienced and insightful professionals”.

Sublets

There were a few varied views on the proposal to confirm the existing ten-year maximum duration of any sublets. These ranged from agreement with the ten-year maximum; disagreement with the proposal with a preference instead for either no formal maximum length; or a reduction to a maximum of five years. One felt subletting should be a simpler process and that when any subletting application is made, it should trigger an assessment to determine how the croft is being used.

Succession

A few respondents described matters of succession. Broader issues included the need for legislative reform in this area, with the Law Society of Scotland making a range of suggestions for aspects that could be considered as part of this. Please refer to their published consultation response for full details. One individual felt there should be a mechanism in place to allow crofts to remain in the hands of families when their adult children have moved from the area.

Other issues

Some respondents used this question to make wider suggestions for the Scottish Government to consider. These included the need for more legislative change, though it should be noted that some believed, across consultation questions, that existing policy was sufficient and there was a need to avoid being overly prescriptive.

Suggested actions included: regionalising plans and undertaking an Island Community Impact Assessment; ensuring regulatory and fiscal environments aligned regarding crofting land use; that the Crofting Register clarified the landlord for each croft and common grazing; and introducing a dispute resolution or mediation mechanism in relation to challenged decisions of the Crofting Commission. The Law Society of Scotland provided detailed aspects of legislative change they wished to see, such as clarifying the status of croft tenants following a purchase by their nominee.

The Crofting Commission recommended that the joint tenancies and standards securities proposals “required further analysis and consideration before they can be included in legislation”. They also suggested changing the process of applications for inclusion on the Crofting Register, so that fees are paid directly to Registers of Scotland rather than the Crofting Commission to address issues with paying by cheque.

Wider crofting issues

While not directly answering the question, some respondents took this final question as an opportunity to call for the Scottish Government to go further and address core issues in crofting, many of which had been referenced in their responses to earlier questions. These issues centred around the need to ensure that crofts were occupied and used productively, and that more effort was required to support entry into crofting and restrain market forces on croft prices.

A few supported the proposal to introduce a single process of assignation, with one suggesting that the same information should be required as for the Land Register.

Two commented on the proposal to transfer the appeal process for removal of members of common grazings committees from the Court of Session to the Scottish Land Court. One caveated their support emphasising a need for the Land Court to adopt the same stringency over the process as the Court of Session did. The Law Society of Scotland felt there was scope for an expanded role for the Scottish Land Court over crofts, stating:

“An application under section 16(3)(b) of the Succession (Scotland) Act 1964 (“1964 Act”) would be an obvious example where jurisdiction could be given to the Land Court.” – Law Society of Scotland