Crofting law reform proposals 2024: consultation

3. Use of Common Grazings

Grazings committees have a key role and responsibility in coordinating the activities and initiatives of crofters and other shareholders on the common grazing. Common grazings are a significant asset to crofting, crofters, landlords, and crofting communities. There are around 1,000 common grazings in crofting areas, covering approximately 550,000 hectares, which account for two-thirds of all croft land. Historically, most crofts comprised an inbye croft combined with a “grazings share” – the right to put a number of livestock on the common grazing land.

Common grazings are usually managed by a grazings committee, and approximately half of all grazings currently have a committee in office. Grazings committees make regulations to control the use and assist in the management of the grazings. Crofters who hold an interest in common grazings are shareholders in those grazings, giving them certain rights and responsibilities set out in legislation. Active grazings committees are the best way to ensure that common grazings are used effectively.

However, despite the commitment and hard work of hundreds of crofters and others on grazings committees across the crofting counties, for many years there has been a decline in the use of common grazings. Although raising livestock remains the most common crofting activity undertaken by crofters, livestock numbers are declining. Currently, the law restrains alternative uses for common grazing land and makes it difficult for new projects or initiatives to be implemented, due to the processes which the law requires for demonstrating agreement among shareholders and landlords.

We want to remove the barriers, where possible, for those active crofters and groups who want to use the common grazing, whether that is for livestock grazing, woodland creation, habitat restoration, biodiversity enhancement etc. Whether the project or initiative is the idea of the crofter, grazing committee or landlord, we want to make the process easier and ensure that all parties who have rights in the common are considered.

The ways in which land is being used is evolving and the Scottish Government wants to see grazings managed in a way that delivers economic, environmental, and community benefits. We want to see more consistency in the effective operation of common grazings to help meet current and emerging land use challenges, to support the sustainable development of crofting into the future and to provide economic and social benefit for crofters and crofting communities.

As well as simplifying the processes, there are two other issues to resolve to help achieve these aims. Firstly, the role of grazings committees needs to be simplified so that there can be more of them in office. Secondly, we need to encourage grazings shares to be used. We know that there are some crofters who have no desire to use their grazing share and would rather transfer it to someone who would use it for any of the purposes allowed within legislation. If we want to regenerate common grazings and further bolster the sector, we need those shares to be in the hands of people who want to use them.

Grazings Committee Duty to Report

Current legislation^[6] states that each grazings committee has a duty to report on the condition of the common grazings and on every croft, tenanted and owner-occupied, and must provide this information to the Crofting Commission.

These requirements have caused difficulty for many committee clerks who are particularly uncomfortable about the obligation placed on them. Individuals have expressed concern that they are expected to provide reports on family members, friends and neighbours which could lead to local and personal tensions.

Information on what activities are taking place on common grazing is vitally important and we do not want the Crofting Commission to lose that rich source of data. That data should be used to share good practices with other grazings committees and with shareholders looking to start up a committee.

However, we propose to relax parts of the reporting requirements and limit them to general matters such as the condition of the common grazing, so that grazings committees are no longer required to report on the condition of each individual croft – although if they wish, legislation does continue to give them the option of reporting individual suspected breaches at any time^[7].

Question 3.1

Do you agree that the grazings committee duty to report should be limited to the condition of the common grazings? [Yes/No/Don’t Know]

Meetings of grazings shareholders

Grazings committees are elected at a meeting of the crofters who share in the common grazing, for a term of three years, following which a new committee is chosen at a similar meeting. (See also question 2.5 above, where we propose that such meetings can be held online if this is more convenient than a physical meeting.) Currently, the legislation requires such meetings to be notified publicly, e.g. through a newspaper advertisement; we propose that the Crofting Commission should be empowered to specify (and from time to time amend) the method for public notification, which could, for example, be by a notice on its own website. We also wish to clarify that the meeting to elect the next committee can be taken before the expiry of the previous committee’s term, to avoid any gap between the outgoing committee and the new one.

Once in office, the grazings committee will call meetings of shareholders from time to time. Where these are public meetings, they will be advertised publicly on the Crofting Commission website or elsewhere. Grazings committees also have a responsibility to notify their shareholders for other (not public) meetings. Current legislation often requires the Grazings Committee to contact all shareholders by registered post, but we consider this blanket provision is too restrictive and costly, and that it should be a responsibility for each shareholder to ensure the Committee has up to date contact details for them, which could be either email or postal.

Question 3.2

Do you agree that meetings to appoint a grazings committee need to be notified publicly? [Yes/No/Don’t Know]

Question 3.3

Do you agree that shareholders should be responsible for informing their Grazings Committee of their preferred email or postal contact address? [Yes/No/Don’t Know]

The link between grazings share and inbye croft, and duties of grazings shareholders

In recent years some grazings shares have become separated from the ‘parent’ croft and are now deemed to be separate and distinct crofts in their own right. The legislation makes clear that crofting regulation continues to apply to them, which is why stand-alone grazings shares are sometimes referred to as “deemed crofts”^[8].

Grazings rights can be separated from the parent croft either intentionally (for example when the crofter applies to assign the share to another person) or unintentionally. The latter has happened on numerous occasions when a tenant crofter has exercised their right to buy their croft, mistakenly assuming that the grazings share would automatically retain its association with the inbye croft.

Currently, there is no automatic inclusion of the grazings right when a tenant crofter purchases their croft. The grazing right becomes a separate entity within crofting tenure, unless the crofter and landowner, through their solicitors, specify that the grazings right is part of the purchase. It is important that both parties consider whether to include the grazings right within the purchase, and it may be possible through legislation to provide more clarity on this matter, for example by:-

• specifying a standard form of words to be used when the grazings right is to remain attached to the croft; or
• providing that the grazings right continues to be associated to the croft by default, unless the parties specify otherwise.

Question 3.4

Is there a need for further legislation on the purchase of grazings rights, or should the details of each transaction be left to the parties as currently? [more legislation is required/details can be left to the parties/Don’t Know – please explain your answer Free Text Box]

The crofter’s duties to reside within 32 km of the croft and to make use of and maintain all of the croft, technically apply to any grazings share, whether it is associated with the croft or a separated unit. In the past, the Crofting Commission’s regulation of duties was exclusively focussed on inbye crofts. With the growing number of grazings shares that are now separated, the Scottish Government believes it is important to clarify how duties apply to the holders of grazings shares. We propose that:

• For the majority of grazings shares, the ones that are attached to an inbye croft, the Crofting Commission will continue to regulate in accordance with current practice. If an active crofter chooses to use their croft for a purpose that does not require the use of the grazings, it would not normally be appropriate to enforce that use through Commission regulation. (The crofter would, of course, have the opportunity to assign, sublet or use the share, and/or a responsibility to contribute to the maintenance of the grazings as organised by the grazings committee.)
• On the other hand, for stand-alone grazings shares, the duty to be ordinarily resident within 32 km of any part of the common grazings and to either make use of the share or to participate in the committee and its activities, will apply; and in order to ensure that holders of standalone shares are contributing to the community and making productive use of their share in the land, the Crofting Commission should enforce these responsibilities as they do for any other croft.

Question 3.5

Do you agree that the Crofting Commission should enforce adherence to residency and land use duties for stand-alone grazings shares? [Yes/No/Don’t Know – comment]

If someone is found to be in breach of any of their stand-alone grazing share duties, and does not agree to remedy this, then after the established due process by the Crofting Commission, they should eventually lose the share. Crofting law protects the rights of crofters, including in respect of the grazings shares which they own. But these rights have never been unconditional, and the crofter only retains the right in the land if they are using the land productively. At the current time, too many common grazings have fallen out of use or are not used much, and the Scottish Government believes it is important to review how the historic crofting principles can better be applied to common grazings.

For any shares that are released in this way, the priority should be to bring them back into use. We propose that the grazings committee, followed by the landlord, should have the opportunity to re-let the share, and if they do not find a new shareholder, the Crofting Commission should organise a re-let itself. If every attempt to relet fails, in that no-one who intends to fulfil the duties is interested in taking on the share, then we propose that the share be dissolved and absorbed by the current shareholders and grazings committee.

Question 3.6

If a grazings share is forfeited by someone who is in breach, which organisation should have the initial responsibility of finding a new shareholder? [Grazings committee, landowner, Crofting Commission, Don’t Know]

Question 3.7

If none of the grazings committee, the landlord and the Crofting Commission can find a new shareholder for a vacant grazings share, do you agree that the share should be dissolved and absorbed by the current shareholders and grazings committee? [Yes/No/Don’t Know - comment]

Use of common land

There are large expanses of peatland on common grazings, and putting (or keeping) these in good condition can make a significant contribution to carbon sequestration. We need to ensure that legal mechanisms facilitate peatland restoration and other beneficial initiatives on common land.

In addition to the traditional uses such as grazing livestock, the legislation^[9] allows for innovative uses of the common land either by the owner through a Scheme for Development or Resumption, or by an individual crofter through an apportionment.

The legislation^[10] also provides for schemes led by the grazings committee or an individual crofter for forestry (either with the consent of the owner or as a joint venture with the owner) or for “other purposes”^[11]. However, the provisions relating to “other purposes” are more restrictive than those for forestry schemes, making it harder for the crofters to secure the necessary consents.

We propose to widen the existing provisions in respect of crofter-led and joint-venture forestry schemes, to encompass also peatland restoration schemes, biodiversity schemes, and other schemes relating to carbon sequestration, habitat restoration or environmental improvements. These should be key options for crofters in modern times, and the same provisions as relate to forestry should be made available.

Question 3.8

Do you agree that the provisions which allow crofter-led and joint-venture forestry schemes should be extended and adapted, to provide similarly for peatland restoration schemes, biodiversity schemes, and other schemes relating to carbon sequestration, habitat restoration or environmental improvements? [Yes/No/Don’t Know -comment]

In addition, there are two current provisions within the legislation on crofter forestry which seem unnecessarily restrictive, and which we propose to remove, both for crofter forestry and for other environmental initiatives:

• A grazings-committee-led forestry scheme, with the appropriate consents, may cover anything from a tiny fraction of the common grazings to almost all of it, but may not cover the whole of the common grazings. We do not consider that crofters who wish to devote the whole of the common grazings to forestry or another environmental scheme should be prohibited from doing so, where all approvals and consents are in place.
• When a grazings committee or crofter proposes a forestry scheme, the owner is entitled to refuse consent, but must give their reasons for refusal which may on appeal be overturned by the Scottish Land Court.

However, if the owner does not reply to the application within the 6-week timetable, they are “deemed to have refused” the application. We consider that this is illogical and that if an owner does not respond within the deadline, and therefore has not given any reasons to oppose the application, they should be deemed to have given consent.

In this situation the proposal should proceed to the Crofting Commission for consideration. The Commission would still have to do its own consultation with the landowner, as it does for all such applications, and would consider any reasoned objection made at that stage. However, the Commission would be entitled to approve the application, after taking account of any objections, without recourse to the Land Court; because without any reasons given for lack of consent, there is nothing that needs to be assessed by the Court.

Question 3.9

Do you agree that an owner who does not respond to a crofter or grazings committee application for forestry can be deemed to have consented (while retaining the right to make comments or objections at the next stage)? [Yes/No/Don’t Know]

Use of Common Grazings for other purposes

Legislation allows crofters to undertake work on common grazings, other than agriculture and woodlands. However, if the owner does not approve of the intended use, they can generally prevent it from happening. We propose to balance the interest of the owner and the crofter, and to ensure that the rights of both parties are considered.

On inbye croft land, current legislation allows a tenant crofter to seek the consent of their landlord to do something innovative on the croft and, if the landlord refuses consent, then the crofter can ask the Crofting Commission to decide. We propose to introduce a similar process in regard to common grazings, to encourage a broader scope of activity.

The proposal would be in line with the current crofter forestry process. Once the shareholders have come up with a proposal, the grazings committee will share this with the landlord who will either give their consent, which may come with certain reasonable conditions, or refuse their consent. The matter is then passed to the Crofting Commission for a decision, which can be appealed to the Scottish Land Court.

Question 3.10

Do you agree that the assessment of crofter-led innovations on common grazings should parallel the arrangements for inbye land? [Yes/No/Don’t Know - comment]

Creation of new common grazings

Current legislation^[12] allows a landowner to apply to designate some land as a new common grazings, but it prohibits this if the land in question is “adjacent or contiguous” to any croft.

This exclusion is to ensure that the land will not be subject to the right to buy if it is subsequently apportioned by a crofter. However, this is quite a significant restriction on the options open to landowners, and in any case there are other ways in which the landowner can ensure that the right to buy will not apply to such land, such as by getting the crofter to enter into a contract or agreement by virtue of which he/she is deprived of certain rights^[13]. We therefore propose to remove this exclusion.

Question 3.11

Do you agree that a landowner should be able to apply to designate land as a new common grazing even if it is adjacent or contiguous to an existing croft? [Yes/No/Don’t Know]