Crofting law reform proposals 2024: consultation

2. Crofting Communities

Extent of crofting community rights

The Law Society of Scotland has drawn attention to inconsistencies and lack of clarity in the current legislation’s definition of “crofting community”.

The Act^[2] primarily defines “crofting community” in a narrow way, limited to those with crofts in the same township or shares in a common grazings associated with that township^[3]; but at the same time, for certain purposes, the legislation introduces a wider interpretation. We propose to build on this approach, but to clarify it and to ensure that there is a justification for each occasion where a wider definition is used, as set out in the following paragraphs.

We shall also take the opportunity to tidy up the various disparate references to “district”, “area” and “locality” where they appear in the Act in relation to crofting communities.

For most purposes, “crofting community” will continue to be the local crofting presence in a particular place – defined as the crofters within a particular township, or with shares in a particular grazings, as listed in the Register of Crofts. These are the people who are eligible for financial recompense in the case of a Scheme for Development, and whose interests must be considered by the Land Court for a Resumption application, or by the Crofting Commission regarding an application to create a croft or a common grazings, or when considering a termination. These people also 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.

However, the restriction that there have to be two or more crofts in the township for these rights to apply, will be removed. There are several townships listed in the Register of Crofts that have only one croft, where the above rights would still be relevant.

For some situations, as partially recognised in the current legislation, rights under crofting legislation may (or may not) need to be extended more widely. The issues are as follows:

Objections to applications

Where a crofter has made an application to the Crofting Commission, such as an application to divide a croft, apportion part of the common grazings, or decroft an area of land, other crofters in the township are entitled to object to the application. While a case could be made for extending this right more broadly, we are mindful that objections substantially lengthen the Commission’s decision-making process on applications, and on balance we consider that this right should continue to be limited to crofters and grazings shareholders in the same township or same grazings.

Question 2.1

Do you agree that the right to object to applications should continue to be limited to crofters and grazings shareholders in the same township or grazings? [Yes/No/Don’t Know - Comment]

Crofting Commission assessment of a decrofting application

Decrofting of a whole or part croft removes or reduces a future opportunity for someone to become a crofter. When considering such applications, the Crofting Commission is currently required to consider the sustainability of crofting in the “area” and also the potential demand for the croft. Sustainability and demand are concepts that need to be assessed across a wider region than the immediate locality. We therefore propose that the Commission should have to consider the sustainability of crofting across the parish, as recorded in the Register of Crofts.

Question 2.2

Do you agree that when deciding a decrofting application, the Crofting Commission should, alongside other considerations, be required to weigh up the sustainability of crofting across the parish? [Yes/No/Don’t Know - comment]

Reporting a suspected breach of duties

Legislation^[4] gives members of a crofting community, as well as grazings committees, a grazing constable, or a Crofting Commission Area Representative^[5], the right to report a suspected breach by a crofter of their crofting duties, which triggers a requirement for the Commission to investigate any breach that does not appear to them to be frivolous or vexatious.

However, although the process of reporting breaches is fundamental to maintaining the health of crofting, relatively few such reports are made by the crofters entitled to make them. More such reports might be made if the right was opened to people who are not already crofters, who might indeed be the ones with the strongest interest in the croft being made available for a new crofter.

Question 2.3

Would you support the extension of the right to report a suspected breach of duty to:

a) Subtenants and short-term leaseholders of crofts within the local crofting community? [Yes/No/Don’t Know]

b) Non-crofters who reside within the local community where the croft is situated? [Yes/No/Don’t Know]

Public Notification, Service of Notices and Meetings

There are a number of provisions in the Act where public notification is required to be made by either an applicant or the Crofting Commission. This process involves placing an advert in one or more newspapers circulating in the district in which the subject croft or common grazing is situated. The notification of first registration of a croft requires the applicant to give notice by placing an advertisement in a local newspaper for two consecutive weeks. (Similar issues for grazing committees are considered in the next section.)

Crofters and stakeholders have pointed out that the newspaper requirement can be overly prescriptive and costly, and fails to allow the use of new or evolving media outlets that may be more appropriate. A common complaint is that people do not see adverts if they do not read a particular newspaper, and it is not always possible to identify a local newspaper circulating in the subject area. An alternative proposal is that the Crofting Commission website could be used for the purposes of public notification. Moving online would mean that all crofters, including stakeholders, solicitors etc, would know that there is only one place they would have to look to get access to public notifications and see what changes are being proposed within their community.

It is important to ensure that public notifications are accessible and that they reach the wider community, but the current issues demonstrate that flexibility would be beneficial. We propose that the Crofting Commission should be empowered to specify the requirements for advertising applications to it or by it, and to change these requirements from time to time. This would allow flexibility, to include other methods to advertise that become practical now or in future, and would remove the need to amend primary legislation as any future media outputs emerge. It could also reduce the administrative and cost burden for crofters.

Question 2.4

Do you agree that the Crofting Commission should be empowered to determine the permitted method to be used for a public notice, and should be able to change the requirements from time to time? [Yes/No/Don’t Know]

There are a number of provisions in the Act where meetings are required to take place, for example, in appointing a grazings committee or when a grazing committee wish to discuss and vote on a proposal to use the common grazing for other purposes. We propose to clarify that future meetings should, where convenient, also be allowed to be held online or in a hybrid fashion.

Online meetings often require less cost and time compared to in-person meetings, and more people may be able to attend as a result. Online meetings also make it easier for participants to pick and choose what part of the meeting is relevant to them, and for them to share documents, plans etc with the group at no cost.

Question 2.5

Do you agree that it should be possible for public meetings to be held on an appropriate online forum or as a hybrid meeting and need not be solely in-person meetings? [Yes/No/Don’t Know]