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PART 1 CONSULTATION

Section 1 Introduction

1.1 The Draft Crofting Reform (Scotland) Bill: Consultation Paper was published in March 2005. It outlined the policy background on crofting, the process of consultation on crofting reform, and the outcome of consultation on the White Paper, Crofting Reform: Proposals for Legislation; and it presented the draft Bill, inviting responses through a number of specific questions. The draft Bill is part of a series of measures by the Scottish Executive to deliver land reform to Scotland and follows the Land Reform (Scotland) Act 2003 ("the 2003 Act") which gave crofting communities the right to seek to purchase croft land.

1.2. The aim of the draft Bill is " to amend the legal framework of crofting to increase the opportunities open to croft tenants and croft owners, to enable those living in some of our most remote rural areas in the Highlands and Islands to use the land in new ways as well as continuing in the traditional ways".

1.3. It is worth noting that the earlier consultation on the White Paper took place in 2002, eliciting 57 responses. There was general support for a revision to crofting law and the responses to this consultation have informed the preparation of the draft Bill. Since 2002, there have been changes in the structure of agricultural support, an increase in demand for housing provision that encourages the retention of young people in remote rural areas, and the recognition that a rural economy that is more diverse is more sustainable. This broad context has informed some of the proposals in this recent consultation on the draft Bill and, indeed, many of the responses received from both organisations and individuals.

Section 2 Consultation process

2.1. The consultation document identified 19 specific issues for consideration based on the responses received to the White Paper. Some of these had already been incorporated into the draft Bill; others were proposals that could be included.

2.2. There were two methods of soliciting comments on the draft Bill. First, a series of public meetings was held in May/June 2005 to explain the purpose and content of the draft bill and inform the consultation process. There were 13 of these meetings in total, held throughout the crofting areas. A meeting also took place on the Isle of Arran:

Glencoe, Argyll
Tiree, Argyll
Lewis, Western Isles
Portree, Skye, Highland
Benbecula, Western Isles
Yell, Shetland
Scalloway, Shetland
Kirkwall, Orkney
Poolewe, Highland
Rogart, Highland
Glenuig, Highland
Bettyhill, Highland
Oban, Argyll
Isle of Arran

In total around 330 people attended the public meetings, however, around 100 of these attended the Arran meeting which primarily dealt with the extension of crofting outwith the crofting counties.

2.3. Second, a detachable form with tick boxes was inserted in the consultation paper for the draft Bill, to be completed and returned. There were 84 completed forms returned. In addition, there were 71 written responses, addressing the 19 issues in a discursive rather than 'tick-box' way.

2.4. In total there were 155 written responses to the Consultation Paper on the Draft Crofting Reform (Scotland) Bill. There were 54 responses from organisations in total, 29 being direct responses and 24 being discursive responses. There were 100 responses from individuals in total, 54 being direct responses and 46 being discursive responses. Two respondents did not indicate whether they were responding as individuals or as organisations.

2.5. There were 8 broad categories of organisational respondent:

16 Grazing committees
4 Crofting groups
7 Representative bodies ( SCF, SRPBA, etc)
4 Local Authorities
7 Other public bodies
SNP and Green Party
3 Law firms/organisations (includes Faculty of Advocates and Law Society of Scotland)
11 NGOs

2.6. Some individual respondents clearly indicated some organisational allegiance, either to political party, community council or law firm. For the purposes of this analysis, however, we have not indicated where this is the case.

Geographical analysis

2.7. There was a good spread of responses from across Scotland, in particular from the crofting counties. In brackets are the numbers of individuals who responded from this area.

2.8. Although the highest number of responses was from the Western Isles, the highest number of individual responses was from Arran. High numbers of responses were also received from Sutherland, Argyll and Inverness-shire.

Section 3 Analysis of consultation responses

3.1 While most of those responding to the consultation commented on each individual question, or issue, in turn, others commented on specific issues of interest to them. Many respondents included qualifying and conditional comments. Others introduced new proposals that had not been included in the consultation paper on the draft Bill. On occasion, it was not easy to decide whether the consultee was in agreement or not with all or part of a proposal. In some cases, additional comments and qualifications to a response were offered by consultees who otherwise indicated an explicit positive or negative stance.

3.2 It is also important to be clear that, in addition to the formal consultation process, there have been frequent and discussions with key stakeholder groups, including the Scottish Crofting Foundation, NFU Scotland and SRPBA both before and after the consultation process on the draft Bill which in most instances have reinforced the comments and proposals made by them in formal responses.

3.3 Therefore, the analysis of responses has been complex. In order to provide a full but clear exposition, the analysis forms two parts. First, each of the 19 issues highlighted in the consultation paper is dealt with in turn. The numbers reflect the responses of those who responded to the questionnaire, i.e. 84 respondents, but the comments are representative of all who responded to the consultation, i.e. 155 respondents. Where straightforward, a recommendation is provided. Where an issue requires detailed discussion and consideration, it will be signposted to the second part of the analysis, which deals with these issues separately. New proposals are also dealt with in the second part.

3.4 It is important to recognise that consultations are designed to gather the views of all interests and stakeholders, but do not pursue a representative sample. This means that there will be people who have considered the proposals set out in the draft Bill and are satisfied with what is being proposed. Substantial modifications that are made as a result of responses that have been received, however, will not reflect the views of those non-respondents. This is a risk associated with all consultations but one to acknowledge, nevertheless.

3.5 This analysis reports on responses from across the board of those who participated, however well-represented that type of consultee was as a proportion of the total responses. It is worth noting that a number of responses to certain questions had clearly been prepared and shared in advance, and were identical or very close in wording; in particular, those interested in the extension of crofting tenure to other areas of Scotland (particularly Arran).

Section 4: Responses to the consultation questionnaire

Croft Boundaries

4.1 Q1 Do you agree that it is appropriate to provide, as at section 22 of the draft Bill, that, in the absence of clear documentary evidence to the contrary, a croft boundary, which after 20 years has become the accepted boundary, should be the legal croft boundary?

4.1.1 Of those who responded to the question, 76 responses were positive, 4 negative, and 4 did not answer. There was no geographical pattern in those responding. Three of those saying no were individuals, one was an organisation.

4.1.2 One respondent said that he welcomed anything which helps clarify whether or not land is croft land. He added that there is perhaps some scope in the concept of desuetude applying where there had been clear non-croft use for a period in excess of twenty years. NFUS agreed that, after 20 years, a croft boundary that has become the accepted boundary be adopted as the legal boundary. SCF added that the provision should move to section 3 of the Bill where the legality would be determined without the need for the Land Court.

4.1.3 Other respondents agreed that it is in the interest of the crofter, landlord and Crofters Commission that croft boundaries are established as over time this will reduce conflict regarding boundary issues. Scottish Natural Heritage said that defining boundaries would assist them in their work with landowners, crofters and grazings committees and could also help the process of establishing environmental management as part of the new system of land management contracts.

4.1.4 Another said that it would appear to be appropriate that after 20 years of unchallenged acceptance of a boundary, that the boundary should be accepted as the legal croft boundary. Another said that it is not clear if there is provision in such a case for neighbours to be notified in case there is clear documentary evidence of a previously existing boundary or in case the agreement between crofter and landlord is in breach of the rights of the neighbour.

4.1.5 One respondent who was against the proposal said the degree of confusion caused by lack of updating of Estate Maps in line with changes makes this proposal non-viable. He added that agreed 'baseline' maps need to be created before such a rule is put in place.

4.1.6 The SCF view that if this provision is made differently there would be no need to involve the Land Court does not take account of the need to use the Court to confirm the legal position. The detail of this provision may require further work to make it simpler and more effective.

Deemed Crofts

4.2 Q2 Are you content with the provision at section 7 of the draft Bill which would extend the information held in the Register of Crofts?

4.2.1 Of those who responded to the question, 79 responses were positive, 1 negative, and 4 did not answer. The one negative response was from Highland Council (check confidentiality).

4.2.2 One respondent believed that landlords and grazing committees should be exempted costs incurred if using the Register as these were bodies which were constantly required to assist the Crofters Commission. Another said that the more information available the better for all concerned either as crofters, landowners, or their agents. The Highland Council said it is concerned that individual crofts may be required to organise and pay for individual croft mapping, when this could be carried out more cheaply and effectively by SEERAD or the Crofters Commission.

4.2.3 Another respondent said that at present the requirement is for the Landlord to furnish the Commission with information. Often this is not done by the Landlord and the Register is therefore incomplete. Therefore, they suggest that both parties to a change of details be required to notify the Crofters Commission and in absence of a response from one party the Crofters Commission calls for the change to be verified by the other party (Landlord or Tenant as the case may be). Another respondent who welcomed this proposal had reservations that the legislation does not appear to place any requirement on an owner or tenant to alert the Crofters Commission to any changes in information.

4.2.4 Many respondents were in favour of having a map based system but that the costs should not be borne by the crofters. This was also the view of the SCF. Others suggested that they did not agree with the Scottish Executive estimate as to the cost of £5m while others said that this figure was still small compared to farming subsidies that are paid out. Other respondents said that the transfer to a map based system should be completed at the same time rather than on a piecemeal basis.

4.2.5 One respondent wondered if there would be any value in keeping a register as it only reflected information provided by the tenant, landlord and Grazings committee. While another said that he supported the proposal that it should take place when a tenancy changes hands.

4.2.6 The CC agreed with this positive move which should encourage development and ease transfers of tenancy and ownership. Rather than wait a generation for the mapping to be complete the Executive should consider making resources available to enable a programme of mapping to be undertaken and completed in a shorter timescale with Gaelic employed where appropriate

Energy Developments on Croft Land and Common Grazing

4.3 Q3 Do you foresee any difficulties inherent in allowing a crofter, subject to the consent of the Land Court, to enter into an agreement which would be binding on successors to the croft tenancy?

4.3.1 Of those who responded to the question, 26 responses were positive, 53 were negative, and 5 declined to answer. There were some regional variations, with more respondents in Shetland and Sutherland foreseeing difficulties. Those foreseeing no difficulties were more prevalent in Arran and the Western Isles.

4.3.2 Of the individual responses received, 17 foresaw difficulties, 35 did not, and 3 did not respond. Of the organisational responses received, 9 foresaw difficulties, 16 did not, and 3 did not respond. Further detailed consideration of this proposal can be found at section 9.

4.4 Q4 Do you have any concerns about the proposed provision to designate the generation of energy as a reasonable purpose?

4.4.1 Of those who responded to the question, 44 responses were positive, 32 were negative, and 8 did not answer. There were 17 positive responses from individuals, 37 negative responses and 2 did not respond to the question. There were 19 positive responses from organisations, 7 negative responses and 2 did not respond to the question. A geographical breakdown of responses indicates that there is more concern about this proposal in Lewis than anywhere else. There is less concern in Argyll, Arran, and Sutherland.

4.4.2 Some of those who expressed concern about this proposal said that wind farms could destroy the crofting way of life and that crofters may lose out where development companies only pay by instalment. Another said that this could lead to problems for the crofting community as wind farming is having such an impact and dividing communities. One respondent said that to name energy along with schools, churches and public roads could imply special reasonable purpose.

4.4.3 Some of those who had no concerns said that they support renewable energy projects that are sensibly sited within the crofting landscape but would have concerns about the scale and impact on natural heritage of certain proposals. Another concern was that there must be a large majority agreement within the township.

4.5 Q5 Do you agree that it is essential to make provision whereby in certain circumstances the crofter's share of development value derived from resumed land should be payable by instalments?

4.5.1 Thirty three responses said yes, 42 said no, and 9 declined to answer. There were 23 positive responses from individuals, 29 negative responses and 4 did not respond to the question. There were 10 positive responses from organisations, 13 negative responses and 5 did not respond to the question. There was strong agreement to the proposal in Argyll, Arran, Shetland and Sutherland. There was strong disagreement to the proposal in Inverness-shire and the Western Isles.

4.5.2 Further consideration of this issue can be found at section 13.

4.6 Q6 Do you consider that the right to receive instalment payments made in connection with the resumption of croft land should be attached to the croft or do you wish the payments to be made, as provided in the draft Bill, to the person who was the croft tenant at the time the land was resumed?

4.6.1 As this was an either or question, clearly it was not possible for respondents to give a Yes or No answer. Only 31 responded to the question. Of those, 22 responded yes and 9 responded no. As it is not reasonable to assume which part of the question they were responding to, these responses are noted but not further analysed. Comments associated with responses are, however, provided.

4.6.2 Those who supported the proposal to attach the payment to the croft said that would ensure that the money came into the crofting community. Difficulties may arise if the crofter dies. Will the instalment payments be deemed part of the estate of the deceased? Another view was that unless it was attached to the croft it would discourage young people applying for crofts in the future. It was also thought that attaching it to the croft would add to its eventual value at outgoing.

4.6.3 While others who were in favour of the Bill proposal said that the payments should be made to the individual who agrees any contract otherwise crofts may not be assigned due to payments attached to them

4.7 Q7 The Executive would appreciate comment on the Development Scheme concept, including views on the need for such a measure and in particular on how the proposals in section 32 might work in practice.

4.7.1 Views on this proposal included the following comments:

• The Development Scheme should be implemented in full as there is much need for it. A simple majority vote of shareholders and landlord should be sufficient and to over rule objections from both shareholders and the public.
• Another respondent said that the Development Schemes could be used instead of Right to Buy and could remove the need for resumption and de-crofting.
• The consent of the community should need to be obtained, i.e. council or local grazings committee
• Subject to review and revision if necessary by the Crofters Commission without further legislation.
• Great care must be taken to ensure short-term benefits are not blindly considered. Crofters' long term benefits are paramount.
• Appears to be for development by landowner rather than crofters.
• Should measures not be in place for crofters to develop?

4.7.2 Further consideration of this issue can be found at section 12

Return of Apportionment to Common Use

4.8 Q8 You are invited to indicate whether you believe the provisions in paragraph 16 of Schedule 2 to the draft Bill meet the need for flexibility over long term management of apportionments.

4.8.1 There were 25 positive responses to this proposal and 4 negative responses. Most respondents provided commentary to this question. There were 9 positive responses and no negative responses from organisations. However, 19 organisations did not respond directly to the question. There were 16 positive responses and 4 negative responses from individuals. 34 individuals did not respond directly to the question. There was no clear geographic pattern to those responding directly to the question.

4.8.2 Reasons given for supporting this proposal included the following:

• Apportionments have to be managed properly or be resumed to the common as long as in agreement with all the parties concerned.
• Emphasis on development can change.
• Legislation should allow for flexibility in the future.
• If a tenant of an apportionment, for whatever reason, is no longer able to utilise the apportionment, it can return to the grazing, then be allocated to another croft or crofter.
• One grazings committee supported the provisions to enable apportionments to be returned to the common grazings and for time-limited apportionments apportionment to be granted. They said that Grazings Committee should be consulted if an owner or crofter request the conditions of an apportionment to be changed

4.8.3 Reasons given for rejecting this proposal included:

• Apportionment should NOT be granted unless in perpetuity.
• Apportionments should be permanently attached to a croft.
• An apportionment is to encourage the crofters to improve the land which takes time.
• Only crofters who work the land really appreciate this being permanent

Existence of a croft

4.9 Q9 Views are invited on whether the legislation should provide that, where land has been registered as and treated as croft land for 20 years or more, its status as croft land should be indisputable.

4.9.1 There were 73 positive responses to this question and 2 negative. 9 respondents did not respond. The negative responses were from individuals from different places.

4.9.2 Reasons given for supporting this proposal were:

• Would agree that if croft land has been registered and treated as croft land for twenty years or more its status should be indisputable; but would suggest the counter proposition that land witch has been the subject of residential and/or commercial development of a non-agricultural or forestry nature and has clearly not been treated or used as croft land for more than twenty years should not be open to a claim that it still forms a part of a croft.
• Holdings which are for all practical purposes a croft should have every opportunity to register as a croft subject to the various crofting acts.
• This proposal will help determine land that is subject to crofting tenure and reduce 'grey' areas.

4.9.3 Reasons given for rejecting this proposal were:

• This will not avoid disputes, which can have their roots beyond the 20 year period! There is a great need for a baseline of agreed boundaries & land status.

Tenancy Options

4.10 Q10 Do you agree that legislation should retain the principle that a croft tenancy must be held by a particular individual?

4.10.1 There were 69 positive responses to this question and 7 negative. 8 respondents did not respond. The negative responses were all from individuals, all from different areas in Scotland.

4.10.2 Reasons given for supporting this proposal were:

• The aim of the Bill is to modernise crofting tenure and underpin its sustainability, rather than to bring it into line with the agricultural holdings legislation which applies to the rest of Scotland.
• Such a move would undermine the traditional concept of the croft tenant as a particular individual with appropriate skills.
• The principle that a croft tenancy can only be held by a particular individual ensures clarity, particularly where there is succession, the tenancy must be vested in one person.
• Complications could arise, through divorce for example, should a tenancy be held by more than one individual.

4.10.3 Reasons given for rejecting this proposal were:

• Married couples and partnerships should be able to have a tenancy as they are treated as a single legal body for most reasons under Scottish Law.
• This would make it easier in dealing with SEERAD.
• Where businesses operate jointly for IACS purposes & VAT but always have difficulty with CCAGS claims where invoices are made out to the VAT business.
• We bought our croft from the estate and it is registered in both our names so the CC should recognise this fact.
• There should be provision for partnerships and even companies with members drawn solely from a family as defined in section36.
• This would give more flexibility in arranging retirement, succession, introduction of capital diversification and inheritance.

4.11 Q11 Are the measures in the draft Bill which deal with misuse and neglect appropriate or should the rules of good husbandry be applied to crofts? In particular, are there cogent reasons why the rules of good husbandry should not apply to crofts as they do to tenanted farms?

4.11.1 This question was an either or question and therefore not easy to answer as a positive or negative response. 40 people who responded said yes, 15 said no and 29 did not respond. As it is not possible to assume which part of the question respondents were agreeing with, no further analysis is provided on these responses.

4.11.2 Some respondents said that care had to be taken to ensure that efforts to prevent neglect do not inhibit the natural benefits of extensive land management nor undermine the parts of the legislation that allow the wider use of crofts. Another respondent said that the rules of good husbandry should be applied to crofting tenancies as they are simple, common sense, not onerous and provide clear guidance on what is acceptable practice. In general many of those respondents who answered this question agreed that the rules of good husbandry should apply.

4.11.3 Another specified that rules of good husbandry should apply to crofts of a reasonable size, say at least 20 acres. As a subdivided croft could be as small as 1 acre in size it seemed hardly possible for much good husbandry. The SEBG welcomes the intention to modify conditions of tenure so that unacceptable neglect or misuse of croft land can be identified and resolved. Good husbandry rules are responsible best practice, to be followed wherever possible; there can be no reason why they should not be applied to crofting as they are already to tenant farmers. Some respondents agreed that the minimum requirement should be adherence to the rules of Good Agricultural and Environmental Conditions ( GAEC).

4.11.4 Another said that good husbandry should apply similarly to crofters as to farmers, but the rules should provide enough scope for conservation management to allow a certain amount of natural or semi-natural habitat to develop and for measures to protect the environment. One said that good husbandry should apply across the board where stock is concerned.

4.11.5 Further consideration of this issue can be found at Section 10

4.12 Q12 Do legal practitioners agree with our view that the consequences of a refusal of a bequest of a croft by a legatee is the same as if the Crofters Commission declare the bequest null and void and that in such circumstances the right to the croft becomes part of the intestate estate of the deceased crofter?

4.12.1 It was not clear whether only legal practitioners were to answer this question. There were 40 respondents, 38 of which agreed with the view and 1 disagreed (individual response).

4.12.2 Reasons given for supporting this proposal were:

• A beneficiary who refuses a tenancy should not be entitled to the value of the tenancy instead. Further, a person accepting a tenancy should be obliged to occupy the tenancy for a minimum period, say 7 years, except in the case of force majeure.
• Support in principle but not clear how these measures could be applied to owner-occupied crofts, which would be essential for fairness.
• The Comhairle agrees that the consequences of a refusal of a bequest of a tenancy are the same as if the Crofters Commission declares the bequest null and void

4.13 Q13 Please provide details of any problems expected to arise in connection with croft management during a period of executory which it is believed that an executor does not have power to deal with.

4.13.1 Some respondents said that problems arise in particular where livestock are present on the holding. It would be appropriate that an executor should be able to appoint a caretaker during the period of executory. One respondent said that crofts can often lie unused for years during periods of executory. This requires legislation to speed the process. Another said that there should be no problem if croft boundary fences are maintained.

4.13.2. One respondent said that under an agri-environment for SSSI management agreement, there may be difficulties for executors, particularly where there is no immediate successor, in continuing to keep up the management required by the agreement. This is, however, not a problem unique to crofting and from an environmental point of view is probably a relatively minor issue

Common Grazing

4.14 Q14 Do you agree that it is not appropriate or necessary to make legislative provision to empower grazing clerks?

4.14.1 There were 40 positive responses and 5 negative responses. 39 respondents did not respond to this question. 11 positive responses and 1 negative response came from organisations. 29 positive responses and 4 negative responses came from individuals. There was no strong geographical pattern for the responses, although there were proportionally fewer responses from the Western Isles. Only 4 responses were received from Lewis and all were positive.

4.14.2 one respondent said that any regulations on crofting should be a consensus of all crofters involved - not at the whim of any individual. One said that there needs to be a grazings clerk 'code of practice' that informs them of their duties.

4.14.3 SRPBA said that Grazings Committees already have a discretion as to how much authority is given to the grazings clerk and it is not necessary to introduce a statutory requirement in this regard. However they believe that properly constituted grazings committees should be given more ability to regulate and manage their affairs without intervention by the Commission. While on the other hand HIE believed that these functions should be strengthened, made democratically accountable and subject to regular reports to relevant crofters. NFUS believe it is neither appropriate nor necessary to make legislative powers to empower grazings clerks or grazings committees. NFUS believe it is neither appropriate nor necessary to make legislative powers to empower grazings clerks or grazings committees.

4.15 Q15 Do you agree that there should not be legislative provision to empower grazings committees to impose requirements on shareholders by majority decision?

4.15.1 32 respondents agreed and 40 disagreed. 12 did not respond. There were 8 positive and 16 negative responses from organisations. 5 organisations did not respond. There were 15 responses that were clearly from grazings committees. Of these, 5 responded positively and 10 negatively. There were 24 positive and 24 negative responses from individuals. 6 individuals did not respond. More positive responses were received from Argyll, Arran, and Invernesshire. More negative responses were received from the Western Isles.

4.15.2 The reasons given by those supporting legislative provision included the following:

• For the good of the grazings some form of legislative power to enforce good practice must be in place and it was essential that majority decisions had a legal backing.
• Shareholders should be able to impose requirements under legislation and that the Crofters Commission should give more support to Grazings Committee decisions.
• Others believed that there are situations involving management agreements and agri-environmental schemes where it can be very difficult to establish a programme of positive environmental management on common grazing land, simply because a small minority is against it. Power to impose a majority decision would therefore be a considerable help, though the requirement should perhaps be for a majority decision of more than one. This would also help build co-operation & confidence in crofting townships. One respondent said that this proposal was long overdue.

4.15.3 Reasons for not wishing legislation included that at the moment grazings are operating in a democratic manner and the will of the majority should carry, and allow the grazings committee to carry out the work of those they represent.: Highland Council said that the council does not see any reason to impose such requirements. While others said that mutual cooperation should be encouraged. Another respondent said that the present arrangements were adequate.

4.14.4 One respondent was clear that there should be no extension to the powers of grazing committees while there was still a lack of democracy and accountability in committees. One respondent was of the view that grazings committees should not have the right to comment on individual crofter de-crofting applications as this gives them huge power within the community.

This issue will be considered further at section 14

4.16 Q16 Is it necessary or desirable to legislate to allow a grazings committee to be the tenant of a croft?

4.16.1 There were 9 positive responses to this question and 61 negative responses, with 14 respondents not responding to this question. There were 3 positive responses from organisations, 18 negative responses and 7 nil responses. Positive responses were received from Knockrome and Ardfarnal Crofting Town, Scottish Natural Heritage and Highland Council. There were 6 positive responses from individuals, 43 negative responses and 7 nil responses. There was no geographical pattern to the responses.

4.16.2 Many of the Grazings Committees who responded to this question were of the opinion the tenancies should be held by individuals and not Common Grazings Committees. Others said that it would cause more trouble than it was worth while another said that the use of such a croft and responsibility for it would be likely grounds for dispute. Others said that the tenant of a croft should be an individual some adding that except in very exceptional circumstances such as the wishes of a family for an interim period to assist them

4.16.3 Another thought that as active crofting declines it may be appropriate that the grazings committee can become tenants of vacant crofts . One Council believes that there may be occasions where it would be useful for a grazings committee to be the tenant of a croft, over and above the scenario presented in the consultation document, where grazings shares have become detached from their original crofts and are now unused

Access across Crofts

4.17 Q17 Would it be appropriate to provide in the draft Bill that a crofter should be able to apply to the Land Court to direct the landlord to provide for vehicular access to a croft where none exists?

4.17.1 There were 60 positive responses, 10 negative responses and 14 respondents did not respond to this question. Only one organisational respondent gave a negative response to this question. This was the Scottish Rural Property and Business Association. 6 organisations did not respond to this question. There were 9 negative responses from individuals and 8 did not respond to the question. There was no geographical pattern in how people responded to this question.

4.17.2 The NFUS believe that a crofter should be able to apply to the Land Court to direct the landlord to provide a vehicular access route to their crofts; however, this must be done in consultation with other crofters if the new route will take access over their croft land. Other respondents agreed saying that appropriate compensation levels had to be set down and that responsibility should be with the landlord. Another respondent said that it was a basic right to have full right of way and adequate access. Those who were against the proposal said that it must be done at the start of the lease or not as the case may be while another said that the crofter rather than the landlord should pay. Another said that when a landlord fixes a rent for a croft, it should be their responsibility to create an access to enable it to be used as a croft.

4.17.3 One crofter who was against the proposals said that the CC are already splitting up crofts where in some circumstances no access is available. This could be unfair to a neighbouring crofter if a new access had to be made through his croft. Another respondent said that it may be counter productive in that it may deter some landlords who would consider offering land for proposed new crofts from doing so if he had to bear the additional expense of road building. Therefore, better for the crofter to have the right of vehicular access to his croft rather than force the issue and maybe have unsuitable less costly access provided by the landlord.

Consideration

4.17.4 Amongst those expressing concern there was some misunderstanding of the proposal as they envisaged that the landlord would be expected to actually provide a road whereas what was proposed was that the landlord would be required to identify a route for road access

Land Reform Avoidance Issues

4.18 Q18 We would be grateful for information about ownership or management devices believed to have been put in place in order to frustrate attempts by a crofting community body to use the crofting community right to buy to acquire full control of relevant croft land. In particular, information is required about how these mechanisms will operate.

4.18.1 This issue, usually referred to as "interposed leases", is a complex and sensitive matter. We are currently discussing this issue with SE Solicitors.

Regulatory Impact Assessment

4.19 Q19 We would be grateful for comment on any or all of the matters discussed in the Regulatory Impact Assessment including views on the appropriateness of cost estimates and views on any other matters arising from the draft Bill which may have cost implications for business.

4.19.1 There were around 10 respondents who commented on this question, only one of which, the SRPBA, who responded to each of the 5 questions within the RIA. Responses are summarised below.

Information held on crofts (including mapping);

4.19.2 Some respondents said that the cost of GPS maps should be met by central resources within SEERAD and suggested that with systems like IACS there should minimal costs involved. Others said that the cost should be spread over all parties involved. One respondent said to do nothing as it would be non cost effective to provide government money to carry through a mapping service.

4.19.3 One respondent said that local feeling is that estates should have been vigilant in checking croft boundaries to avoid disputes, which are going to take years for the Land Court to arrive at decisions. Another respondent was concerned that croft boundaries were to be decided on fences which are erected in straight lines or old dykes, some of which are hardly discernable.

4.19.4 SRPBA was concerned about the disproportionate cost of mapping crofts. The RIA suggests that mapping should occur as and when crofts change hands, although section 8 of the Bill does not actually state this. They added that expenditure could be incurred where there is a rent of only £5 or £8 per annum. The proposals therefore impose a disproportionate cost upon the landlord. The Law Society of Scotland and others said that they approved wholeheartedly of this proposal. Three respondent said that the costs such as mapping charges should be shared between relevant parties.

Comprehensive Right of Appeal to the Land Court;

4.19.5 Two respondents approved of appeal against regulatory decisions but only to interested parties. SRPBA believes that the term "interested party" should be defined within limited parameters. There is a danger however that by allowing third party rights of appeal, every appeal will be a re-run of generic issues and provide a platform for parties who hold specific views on certain aspects of crofting, rather than the specific issue in question. The basis upon which appeals can be made must therefore also be within defined parameters. The RIA does not address the issue of costs where the appellant is legally aided. In those cases assisted persons will not have expenses awarded against them if they are unsuccessful.(96)

Landlord's consent to Crofter Forestry Development

4.19.6 SRPBA is disappointed that the Executive has removed the Landlord's right to give or withhold consent to a crofter forestry scheme. They believe that for such a major land use change the landlord must still be able to refuse consent. Only if the landlord fails to respond timeously or acts in bad faith should he be by-passed. Nevertheless, if option 3 is to be adopted ( i.e. qualified right to refuse consent which can be overturned by the Land Court) there must be compensation for the owner for the loss of his property/ownership and sporting rights.

4.19.7 As a general comment on the new Section 50(3A), SRPBA questions the need for the Crofters' Commission's involvement in forestry schemes. The parties with whom the Commission must consult, should already have been consulted before the scheme would have proceeded, so further consultation is unnecessary.

Untested Right of owner consent to crofters felling, use and sale of trees

4.19.8 SRPBA has no issue with the principle of this. However, there appear to be some errors in the drafting of section 50(3B) inserted by Section 29 of the draft Bill. Given the rights of responsible access for the public in terms of the Land Reform (Scotland) Act 2003, it is no longer possible to have exclusive recreational and economic use of one's land. The use of the word "recreational" needs to be deleted. Additionally economic use must be of the trees rather than the woodland.

Right of Landlords to give or withhold consent to division of a croft

4.19.9 One respondent said that Crofting landlords do not wish to see fragmentation of their estates, frequently to provide housing sites any more than the landlord of a farm would wish to see the farm split in two to provide an additional tenancy.

4.19.10 SRPBA is also concerned that the requirement for Landlord's consent has been removed. Again, this is a further erosion of the landlord's role. SRPBA also took the view that the principle of division cuts across (and in effect acts as a loophole to) the prohibition of having no more than two houses per croft, simply by creating more and more smaller crofts (see rule 8 of Schedule 2 to the 1993 Act). They do not believe this is ultimately to the long term economic benefit of crofting areas, and simply encourages an upsurge of "second" homes which add very little to local communities and economies. There is no assurance that division will produce affordable homes for people already living in crofting communities.

4.19.11 The SRPBA added that the objective stated in the RIA does not appear to be carried through into the Bill. The RIA states that the Land Court should be able to set a rent which would offer the landlord "an acceptable margin of revenue over reasonable cost of collection". However, the Bill (see section 14) does not give any assurance that this will occur. It should be stated clearly that the Land Court must set rent to take the increased costs of collection into account.

4.19.12 Various other comments were received including the views that that divisions should be subject to consent and control of the CC;. government should be financed to map crofts with an appeal process built-in; and if an appeal fails it is, fait accompli, to be accepted by all sides.

SECTION 5 - PUBLIC MEETINGS

Background

5.1 During May and June, 2005, thirteen public meetings ² were held in the crofting counties on the draft Bill. (See map & meetings profile attached at Annex B and C). The locations of these meetings represent different crofting traditions within Scotland. For while the Scottish crofting system is universal, its application differs depending on crofting history, topography, size of crofts and the presence of crofting owner-occupiers or tenants. The most distinct differences are between Orkney and Shetland and the rest of Scotland as reflected in the feedback.

5.2 During the meetings, representatives of the Crofting Commission and/or SEERAD outlined the proposed changes to the draft Bill and invited questions from the audience. Feedback from these meetings, therefore, represents issues raised after an overview of the draft Bill ³ within an open forum. As a result, these issues may be viewed as important to the crofters present, though they are inevitably based on their perceptions and do not automatically reflect an accurate representation of the proposals within the draft Bill - nor always relate to its content.

Introduction

5.3 To aid the reading of this report, issues raised at these meetings are placed into three categories. First, four main issues raised within most meetings. Second, six sub themes specific to the location of the meeting or the individuals present. Most of these issues, though complex in nature, are only presented here but discussed further under Sections 6 and 17. Third, sub themes that relate to the issues in the 19 questions outlined in the previous section. Due to the open nature of the meetings, many issues were raised as questions or concerns, though some solutions were proposed as outlined below.

Main Issues Raised

5.4 Six main themes arose from the notes of the meetings, which focused around concerns for the future of crofting.

1. Support for the creation of new crofts, specifically for the younger generation, but with concerns that the 'right to buy' will not encourage landlords to release land.
2. The definition of the ' purposeful use' of crofts with concerns that in diversifying croft activities the future of (traditional) crofting is under threat.
3. The increasing price of croft assignations and concerns that young people are currently unable to afford tenancies.
4. The Subdivision of Crofts can provide land for immediate family but concerns that crofts may become too small to work.
5. The economic status test, a general concern of owner occupiers.
6. The roles and powers of the Crofters Commission

Creation of new crofts

5.5 The general support for the creation of new crofts was followed by an overriding concern that the 'right to buy' is not an incentive for landlords to release land for new crofts. In Bettyhill, the willingness to relinquish the right to buy was discussed as a possible solution. In Gigha, where the community owns the land, it was stressed that the removal of the right to buy needed to be in perpetuity and the provision to be watertight. An alternative was to limit 'right to buy' to immediate family members. There was additional concern that new crofts were being created on inbye land rather than common grazing. In Glen Coe, the SEERAD representative explained that common grazing is often not easily accessible and may therefore be unsuitable for houses.

Purposeful use of crofts

5.6 The provision for a wider view of the purposeful use of crofts was often raised, though discussions tended to focus on the negative impact on the future of crofting through diversifying crofting activities. Four main concerns were raised. First, crofting as agriculture was being actively discouraged or being placed further down the priorities of uses of crofts. This concern appears to stem from a general misunderstanding, except in Benbecula ⁴, that the draft Bill will abolish a tenants' obligation to cultivate land. Second, diversification would encourage inbye land to be used for housing and holiday homes. Third, promoting new types of croft activities would encourage landowners to set up interpose leases with outside bodies. Finally, the actual definition of 'purposeful use' was discussed as unclear. Benbecula, however, actively supported diversification and viewed this direction as the future of crofting, providing new opportunities and preserving the crofting way of life.

5.7 Benbecula proposed that local area polices would help communities develop a vision for their own area, though Gigha, Tiree and Rogart asked for 'local' to be defined. Argyll, for example, is a large area and covers various types of crofting, while Tiree discussed the trade off between local policies vs the practicalities of implementation. Benbecula also proposed tighter regulations of crofting plans by the Crofting Commission to ensure that the proposed purpose of a croft is ensured. Finally, Jura enquired if purposeful use would differ between large and small crofts. No concerns were raised in Orkney nor Yell, Shetland, though in Scalloway, Shetland, there were general concerns that the Bill did not support the future of crofting and agriculture.

Price of Assignations

5.8 The increasing price of croft assignations was another common theme, in particular the concern that young people were being priced out of the market. This issue was recorded as the most important action to address at the SCF 2005 AGM. However, there was a general consensus that the price of assignations should not be controlled by any outside bodies. Proposed solutions were: increased monetary support of the croft entrant scheme, setting a top age limit on the scheme and allowing division of crofts for immediate family members. One recurring solution was to regulate the use of crofts, in particular to ensure the 5 year plan of a newly assigned croft is fulfilled. In deciding who and how these plans were to be regulated was not always discussed, though Benbecula proposed area based policies as one way forward.

Division of Crofts

5.9 Both Jura and Stornoway expressed concern that crofts may become too small. Jura asked if a limit would be set on the size of a croft, while Stornoway was concerned that fragmented crofts would eventually lead to decrofting. Rogart raised the question of whether crofts could be divided into house plot sizes. Benbecula raised concern that division would lead to speculation, though some viewed crofts to be already divided in the township and divisions would be useful for family members. Poolewe also supported the division of crofts for immediate family, such as sons and daughters.

5.10 The division of crofts was not raised in either Orkney or Shetland, though suitable crofts sizes were discussed in Orkney. Crofts were proposed as unworkable if smaller than 30 hectares, an unusually large size in some other crofting townships, such as the Western isles though not in Argyll. This comment reflects the Orcadian crofting system, which is similar to running a small farm fulltime.

Economic Status test

5.11 In Orkney and Shetland, where crofters are predominantly owner occupiers there was a call to either abolish this test or apply it to all crofters. An owner occupier in Tiree and in Poolewe also called for this status test to be abolished indicating that this concern may be country wide for owner occupiers. In Tiree, one owner occupier was concerned that they would be viewed as landlords and need to comply to right to buy

The role and powers of the Crofters Commission.

5.12 The Crofters Commission were criticised for not exercising their power appropriately or fulfilling their role in crofting communities. However, it is unclear if criticisms are based on a full understanding on the current roles and powers of the Crofters Commission.

Site specific sub themes within the public meetings.

5.13 The above 5 issues reflected a general view across the meetings held while the following 5 issues were more site specific - and do no link directly to issues explored in the questionnaire.

Croft succession: Glenuig asked how to value the croft when a crofter died or needed to be moved into care. ⁵ Another related question was whether the shares invested in the common grazing were transferred with the sale of a croft or remained with the crofter.

Absentee crofters: Poolewe do not support removal of absentee crofters unless there are follow up plans to do something with the croft.

Subletting crofts: In Tiree the issue of subletting for 10 years rather than the current 3 years was supported, though some expressed concerns this may perpetuate absentee crofting. Poolewe asked if a croft could be sublet to a horticultural company, rather than an individual.

Decrofting: ⁶ Jura asked if decrofted land could be recrofted, while Oban thought that the Crofters Commission needed more powers to prevent decrofting. Probably a response to a recent case, where despite local opposition a croft had been decrofted].

C. Site Specific Issues Related to the 19 questions in Section 4.

5.14 Not all the subjects of the 19 questions were raised during the meetings, though it is unclear if their absence indicate a lack of knowledge or lack of interest on the subject.

Q1: Do you agree that it is appropriate to provide, as at section 22 of the draft Bill, that, in the absence of clear documentary evidence to the contrary, a croft boundary, which after 20 years has become the accepted boundary, should be the legal croft boundary?

5.15 Only Glenuig discussed croft boundaries and agreed to 20 year limit. The lack of discussion potentially indicates a lack of conflict over this proposal.

Q2: Are you content with the provision at section 7 of the draft Bill which would extend the information held in the Register of Crofts?

5.16 Map based registers were supported by Rogart, though Glenuig and Stornoway objected to crofters incurring the cost of the mapping exercise. Rogart did not discuss the cost.

Q3 Do you foresee any difficulties inherent in allowing a crofter, subject to the consent of the Land Court, to enter into an agreement which would be binding on successors to the croft tenancy?

5.17 Glenuig discussed this question but did not produce any clear response.

Q4 Do you have any concerns about the proposed provision to designate the generation of energy as a reasonable purpose?

5.18 No objections arose directly on the use of crofts for generation of energy. Poolewe discussed the benefits of renewable energy but no conclusions were recorded. Other discussions tended to use the generation of energy as examples in discussion, for example, on how to allocate share values or whether a croft had room to develop a wind farm, rather than a direct discussion on the pros and cons of this proposed provision. ⁷ .

Q5 & Q 6 relate to question on the form of payments of development shares to crofters.

5.19 No meetings recorded raising these issues.

Q7 The Executive would appreciate comment on the Development Scheme concept, including views on the need for such a measure and in particular on how the proposals in section 32 might work in practice.

5.20 Stornoway focused on this issue and highlighted that landlords should not be allowed to carry out development at their own hands and the Bill should benefit the crofters not landlords. In particular, provisions should be made for crofters to benefit from income from mineral sporting and wayleave rights in the same way as landlords. Development schemes should focus on promoting employment in the area.

Q8 You are invited to indicate whether you believe the provisions in paragraph 16 of Schedule 2 to the draft Bill meet the need for flexibility over long term management of apportionments.

5.21 In Benbecula, assigning grazing shares, as provided under the 1976 Act, could lead to young people applying for apportionment and creating new crofts. In Rogart, the development of common grazings for new crofts through apportionment was welcomed, though it was recognised this land needed to be near to roads and other services.

Q9 Views are invited on whether the legislation should provide that, where land has been registered as and treated as croft land for 20 years or more, its status as croft land should be indisputable.

5.22 Not recorded as discussed at any meetings.

Q10 Do you agree that legislation should retain the principle that a croft tenancy must be held by a particular individual?

5.23 Not recorded as discussed at any meetings

Q11 Are the measures in the draft Bill which deal with misuse and neglect appropriate or should the rules of good husbandry be applied to crofts? In particular, are there cogent reasons why the rules of good husbandry should not apply to crofts as they do to tenanted farms?

5.24 Glenuig supported the proposal that the Crofters Commission could impose good husbandry though thought it difficult to impose and police. Gigha supported the removal of unsuitable tenants but with the landlords consent.

Q12 Do legal practitioners agree with our view that the consequences of a refusal of a bequest of a croft by a legatee is the same as if the Crofters Commission declare the bequest null and void and that in such circumstances the right to the croft becomes part of the intestate estate of the deceased crofter?

5.25 This question appears to be aimed at the legal profession, though there are no records of this issue being discussed.

Q13 Please provide details of any problems expected to arise in connection with croft management during a period of executory which it is believed that an executor does not have power to deal with.

5.26 Problems with 'marauding' deer and geese were raised by Poolewe, Rogart and Benbecula who are tenant crofters.

Q14 Do you agree that it is not appropriate or necessary to make legislative provision to empower grazing clerks?

Q15 Do you agree that there should not be legislative provision to empower grazings committees to impose requirements on shareholders by majority decision?

Q16 Is it necessary or desirable to legislate to allow a grazings committee to be the tenant of a croft?

5.27 Questions 14 to 16 focus on the rights and powers of the grazing committees. None of these issues were raised, though a call for increase administration and support was recorded at Benbecula. Bettyhill welcomed the fact that the draft Bill allowed Grazings Committees to borrow more money and the approval manner in the draft Bill was agreed but it was noted that this alone would not make borrowing possible. GCs require a structure that will allow funding bodies such as banks to lend, as long as appropriate feasible plans are in place. It was recognised that this solution maybe difficult to implement since any borrowing is in the name of the shareholders. However, without this change development cannot be achieved.

Q17 Would it be appropriate to provide in the draft Bill that a crofter should be able to apply to the Land Court to direct the landlord to provide for vehicular access to a croft where none exists?

5.28 Not recorded as discussed at any meetings

Q18 We would be grateful for information about ownership or management devices believed to have been put in place in order to frustrate attempts by a crofting community body to use the crofting community right to buy to acquire full control of relevant croft land. In particular, information is required about how these mechanisms will operate.

5.29 Objections to interposed leases were raised in Stornoway and they were felt to be illegal. Stornoway discussed that resumption for alternative energy should contain provision for tripartite agreements and that crofters should have say in the development value of common grazings.

Q19 We would be grateful for comment on any or all of the matters discussed in the Regulatory Impact Assessment including views on the appropriateness of cost estimates an views on any other matters arising from the draft Bill which may have cost implications for business.

5.30 Objections to crofter's paying for their crofts being mapped were outlined in question 2 .

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