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DRAFT CROFTING REFORM (SCOTLAND) BILL: Consultation Paper
Section 29: Use of Common grazings
This section introduces a number of changes connected with common grazings and their uses.
Section 29(1) makes changes to section 50 of the 1993 Act. It inserts six new subsections which deal with modification of matters relating to consent by the owner and use of woodlands.
New section 50(2A) restricts the right of the owner of common grazings land to refuse consent for crofter forestry purposes by specifying the grounds on which consent may be refused. The grounds on which consent can be refused are intended to cover the situations in which there would be a loss or harm to the interests of the owner or a crofter if the planned crofter forestry scheme proceeded. It also specifies that a refusal of consent must be in writing giving reasons for refusal. New section 50(2B) further provides that a failure to give or refuse consent within 6 weeks is to be treated as refusal of consent. In the event that consent is refused or granted with conditions the crofters have the right to appeal that refusal of consent in the Land Court. New section 50(2C) specifies what the Land Court may do if it determines that the refusal of consent was unjustified. |
PART 4
COMMON GRAZING
29 Use of Common Grazing
(1) In section 50 of the 1993 Act (use of common grazings for forestry purposes)–
(a) after subsection (2) there is inserted–
"(2A) An owner may refuse consent on (and only on) the grounds that implementation of the proposal would–
(a) adversely affect the exercise of any rights which he has under or by virtue of Schedule 2 to this Act;
(b) prevent an intended resumption by virtue of section 20(1) of this Act;
(c) be detrimental to the sound management of the estate which comprises the land;
(d) cause hardship to a crofter who shares in the common grazing;
(e) cause the owner undue hardship; or
(f) lessen significantly the amenity of (either or both)–
(i) the land;
(ii) its surrounding area,
and without prejudice to subsection (2B) below any refusal shall be in writing and shall specify the grounds of refusal.
(2B) If, within six weeks after application under subsection (1)(b) above, there has neither been written consent nor written refusal, the owner shall be deemed to have refused the application.
(2C) If, on an appeal under section 52A of this Act in relation to–
(a) the refusal of an application under subsection (1)(b) above; or
(b) conditions to which, under subsection (2)(bb) above, consent is given,
the Land Court is satisfied that the owner is not justified in refusing consent, it may determine that, provided approval under subsection (1)(a) above is obtained for the use in question, the consent is to be deemed given.";
(b) after subsection (3) there is inserted–
"(3A) The Commission shall, on receipt of any application under subsection (1)(a) above, consult as regards the proposal the owner, the crofters who share in the common grazing and such other persons as appear to the Commission to have an interest.
(3B) The reference in subsection (1) above to using as woodlands is to having the right to exclusive economic and recreational use, including (without prejudice to that generality)–
(a) felling, removing, selling and replacing the trees in question;
(b) collecting trimmings, fallen timber, foliage, flowers, fruit, seeds and nuts for use or sale;
(c) grazing animals in the woodlands; and
(d) selling timber, timber products and other forestry products.
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New section 50(3C) makes clear that responsibility for the cost of fencing land enclosed for crofter forestry and for subsequent maintenance, repair and renewal of that fence rests with the grazings committee or where there is no grazings committee with the crofters sharing in the grazing. |
(3C) Where the owner’s consent is, under subsection (2)(bb) above, subject to a condition that land be fenced, or otherwise enclosed, any expenditure incurred in complying with that condition (including expenditure incurred in that connection in maintenance, repair or renewal) shall be met–
(a) in a case where the applicant is the grazings committee, by that committee, and
(b) in any other case, jointly and severally by the crofters sharing in the common grazing."; and
(c) in subsection (4), for the definition of "landlord’s consent", there is substituted–
""owner’s consent" means the consent of the owner referred to in subsection (1)(b) above (or a deemed such consent);".
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Section 29(2) inserts new sections 50A and 50B into the 1993 Act. New section 50A provides scope for joint forestry ventures between the owner of the common grazing and crofters. It provides for the crofters and owner to make agreements which are binding on their successors and which can be amended at a later date only by agreement. It provides in section 50A(2) for the possibility of such agreements including existing trees. It also provides (new section 50A(3)) for a copy of such an agreement to be held by the Commission and in terms of section 50A(4) for such agreement to be amended by written agreement also lodged with the Commission. It also makes provision in new sections 50A(5) - (7) for the parties to resolve, in the Land Court, any disputes that arise as to value of the trees or the size of the entitlement to a share of the timber produced. |
(2) After section 50 of the 1993 Act, there is inserted —
"50A Joint forestry ventures etc.
(1) A crofter who holds a right in a common grazing, or a grazings committee, may, with the agreement of the Commission, enter into a written agreement with the owner of the common grazing that they shall engage in a joint forestry venture to use woodlands as part of the common grazing concerned; and subject to subsection (4) below that agreement shall bind the parties to it and their successors.
(2) Subject to the terms of any agreement under subsection (1) above, where there are, on part of a common grazing which is to be used as woodlands by virtue of section 50 of this Act, trees other than such as are mentioned in paragraph 11(d) of Schedule 2 to this Act, the owner and the grazings committee may agree–
(a) that those trees are to be sold to the committee at current value; or
(b) that the owner is to be entitled to a share of the timber obtained from such use, being a share which is proportionate having regard to the numbers, respectively, of those trees and of the trees planted (or obtained from planned natural regeneration of the trees planted) in the course of such use.
(3) Where an agreement is entered into under subsection (1) or (2) above, a copy of that agreement shall be lodged with the Commission.
(4) The persons who for the time being are bound by the agreement in question may by written agreement lodged with the Commission under this subsection amend the agreement lodged under subsection (3) above (or as the case may be that agreement as last amended under this subsection).
(5) Any person who is for the time being bound by an agreement under subsection (2) above may appeal to the Land Court against a valuation carried out by virtue of paragraph (a), or the assessment of a share entitlement carried out by virtue of paragraph (b), of that subsection.
(6) In an appeal under subsection (5) above, the Land Court may reassess the value or entitlement in question.
(7) The valuer whose valuation is appealed against may be a witness in the appeal proceedings.
(8) In subsection (2)(b) above "planned natural regeneration" means regeneration which takes place in accordance with–
(a) an agreement entered into under or by virtue of this Act or any other enactment; or
(b) the conditions of–
(i) any grant for purposes which include such regeneration and which is paid out of the Scottish Consolidated Fund; or
(ii) such other grant of a public nature as may be prescribed.
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New section 50B provides that common grazings may be used by crofters for purposes other than those such as grazing, forestry, peat-cutting, use of seaweed and use of heather and grass for roofing which are currently permitted. This would require agreement of those crofters with shares in a common grazing and approval of the Commission (the Commission decision would be subject to a right of appeal to the Land Court by a shareholder or the owner of the common grazing in terms of section 33).
Section 50B creates a process for making and considering a proposal to put a common grazing to another use. New section 50B(1) identifies who may propose an alternative use for a part of the common grazing. New section 50B(2) provides that the proposed new use cannot be one which is detrimental to the current use of other parts of the common grazing or to the owner's interests.
New section 50B(3) requires the grazings committee on receipt of a proposal to convene a meeting of the shareholders in the grazing to consider the proposal and new section 50B(4) sets out requirements which are to be incorporated into grazings regulations. These cover the method of convening such a meeting, consultation with the owner before the meeting, making the owner's views known to the meeting, conducting the vote, declaring the result of the vote and communicating the details of the decision of the meeting and the detailed results of the vote to the owner after the meeting. |
50B Use of common grazing for other purposes
(1) A crofter who holds a right in a common grazing may propose to the grazings committee that a part of the common grazing be used other than for–
(a) grazings or a purpose mentioned in section 52(9) of this Act; or
(b) woodlands.
(2) The use proposed must not be such as would be detrimental to–
(a) the use being made, as at the time of application, of the other parts of the common grazing; or
(b) the interests of the owner.
(3) On receipt of a proposal made under subsection (1) above the grazings committee shall, for the purpose of there being a discussion and vote on the proposal, summon a meeting of the crofters who share in the common grazing.
(4) Regulations under section 49(2)(g) of this Act shall, in relation to any meeting so summoned, provide that–
(a) the time, place and purpose of the meeting (including the proposal in question) should be–
(i) set out in a notice sent by registered post to each of those crofters and to the owner; and
(ii) intimated by public notification, at least 28 days before the meeting; and
(b) the grazings committee shall, in sending such notice to the owner–
(i) invite him to give his views as to the proposal; and
(ii) afford him the opportunity to discuss it, at such reasonable time before the meeting as is convenient to him, with a member of the committee;
(c) at the meeting any views so given (or disclosed in discussion) shall be made known to the crofters attending;
(d) the vote on the proposal shall be by simple majority of those crofters attending on a show of hands, except that a crofter who is unable to attend but who has notified the committee of that circumstance may vote by proxy or by post (provided that any vote posted shall be valid only if received by the committee before the meeting);
(e) the result of the vote shall be declared at the meeting; and
(f) the owner shall be advised, by written notice given within two weeks after the meeting takes place, of its outcome (that is to say, of whether the proposal has been accepted or rejected, of the number of crofters present and of the numbers, including those voting by proxy or by post, who respectively voted for, voted against and abstained) and, if the vote is in favour of the proposal, of what subsection (5) of this section requires to be done.
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New section 50B(5) provides that if there is a vote at the meeting in favour of the proposal the grazings committee must seek approval of the proposal from the Commission before they implement it.
New sections 50B(6) _ (8) specify how the Commission should consider the matter and reach a decision. Furthermore if that decision is to approve a proposal new section 50B(8) provides how the Commission may deal with a proposal and if they approve the implementation of the proposal, how they may later review their decision. |
(5) If the vote is in favour of the proposal the committee shall, in such manner as the Commission may require, seek their approval for its implementation.
(6) On receipt of an application under subsection (5) above the Commission shall–
(a) consult, as regards the proposal, the owner and any other person who appears to the Commission to have an interest; and
(b) give public notification–
(i) that the proposal has been made;
(ii) that they are considering whether to approve it; and
(iii) inviting written comments within such period as shall be specified in the notification.
(7) The Commission or assessors appointed by them may, if the Commission think fit, hear evidence as regards the proposal.
(8) The Commission may approve or reject the implementation of the proposal; and if they give their approval they may, if they think fit, impose conditions as respects that implementation; and they may, if requested by the grazings committee or the owner to review that implementation, carry out such a review, vary or withdraw any such conditions, impose further conditions or revoke the approval.
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New section 50B(9) requires the Commission to impose a condition requiring provision of a deer-proof barrier around the land affected by a proposal where the owner asks for it to be provided and the Commission consider that the implementation of the proposal would make the land more attractive to deer. |
(9) Where, in the opinion of the Commission, implementation of the proposal is likely to result in the land to which the proposal relates becoming more attractive to deer they must, if they give approval and the owner so requests, impose under subsection (8) above a condition that the land is to be enclosed by means of a deer-proof barrier (as defined by section 45(1) of the Deer (Scotland) Act 1996 (c.58)).
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New section 50B(10) provides how the Commission will communicate their decision. It is important to note that the appeal provisions in new section 52A (see section 33 of the draft Bill) will apply to the decision by the Commission. |
(10) Within two weeks after coming to a decision as respects implementation of the proposal, the Commission shall advise–
(a) the proposer;
(b) the grazings committee;
(c) the owner; and
(d) every person who submitted written comments by virtue of subsection (6), or gave evidence by virtue of subsection (7), above,
as to the decision and as to any conditions imposed under subsection (8) above; and where the decision is to approve implementation but subsequently they vary or withdraw conditions, impose further conditions or revoke the approval they shall, within two weeks after doing so, advise those same persons accordingly.".
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Section 30: New Common Grazings
This provision inserts a new section 51A into the 1993 Act to provide for the creation of a new common grazing by a land owner. New section 51A(1) empowers the Commission acting on an application from the owner of the land to record eligible land as a common grazing in the Register of Crofts. Such change cannot be recorded until any appeals against such change have been decided. New section 51A(2) - (4) details how the Commission should go about considering and determining an application. |
30 New Common Grazing
After section 51 of the 1993 Act, there is inserted —
"51A New Common Grazing
(1) The Commission shall have power, on the application of the owner of any eligible land, to constitute the land as a common grazing by entering it as such, in accordance with section 41 of this Act, in the Register of Crofts; but no such entry shall be made until the period mentioned in section 52A(3) of this Act has elapsed without any appeal to the Land Court being made or until any such appeal timeously made is decided or abandoned.
(2) The Commission shall, on receipt of any such application, give public notification of it; and such notification shall specify a period within which written comments as regards the application may be made.
(3) After the period mentioned in subsection (2) above has elapsed the Commission–
(a) shall determine whether to exercise their power under subsection (1) above; and
(b) shall give public notification of that determination.
(4) In so determining the Commission shall have regard to–
(a) such written comments, if any, as are timeously made by virtue of subsection (2) above;
(b) the public interest and the interests of the crofting community in the locality of the land; and
(c) whether social or economic benefits might be expected as a consequence of so constituting it.
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New section 51A(5) defines what constitutes eligible land for the purposes of this section. New section 51A(5)(c) excepts land adjacent to a croft (because such land can be turned into common grazing land under existing provisions of the 1993 Act). |
(5) Land is eligible land for the purposes of subsection (1) above only if it is–
(a) neither tenanted nor occupied by a cottar;
(b) situated in the crofting counties but not constituted as a croft; and
(c) not adjacent or contiguous to a croft.
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New sections 51A(6) and (7) provides that where a new common grazing is created the parties must agree in writing how the land is to be used, that this agreement is binding on the parties and their successors, that it may only be amended by agreement and that a copy of the agreement will be held by the Commission. It should be noted that since the parties would remain bound by the agreement the procedure for enabling the use of parts of the common grazing for other purposes and for crofter forestry, insofar as they allow for an owner's refusal of consent to be overridden, will not be relevant to new grazing. |
(6) The owner and the persons who are to share in the common grazing shall agree in writing what the uses of the common grazing are to be; and subject to subsection (7) below that agreement shall bind —
(a) the owner and those persons; and
(b) the successors of the owner and of those persons, and a copy of the agreement shall be lodged with the Commission.
(7) The persons who for the time being are the owner and the persons sharing in the common grazing may by written agreement lodged with the Commission under this subsection amend the agreement lodged under subsection (6) above (or as the case may be that agreement as last amended under this subsection).
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New section 51A(8) applies section 6 of the 1993 Act with the effect that the land will be treated as a croft for rent purposes. |
(8) Section 6 of this Act applies in relation to land constituted as a common grazing under this section as it applies in relation to a croft.".
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Section 31: Contravention of, or failure to comply with, common grazings regulations
Section 31 amends the provisions of section 52 of the 1993 Act so as to provide a new means of enforcing common grazings regulations. The existing criminal offence will cease to apply as a result of the replacement of the existing section 52(1) with a new section 52(1).
A new procedure is put in place by means of new sections 52(1) _ 52(1F). These provisions provide for the Commission to intervene at the request of the owner or grazings committee where grazings regulations are not being observed. If the Commission are asked to intervene new section 52(1A) requires them to give notice of the contravention to the person accused of not observing the regulations, the grazings committee and the owner. The Commission are thereafter required by new section 52(1B) to allow all these parties to make representations about the allegation and are also to hear evidence.
If the Commission determine there has been a contravention of or failure to comply with grazings regulations in terms of new section 52(1C) they can require the offender to comply with the regulations and make good any damage. Where an offender does not so comply, new section 52(1D) allows the Commission to either determine that all or part of that person's share in the common grazing is suspended or, if the person is required to make good damage to the grazing, to allow a further period for that to be done. New section 52(1E) provides that when a grazing share has been suspended and a requirement imposed by the Commission is still not complied with the Commission can determine that the share is terminated and apportion it to the other shareholders. New section 52(1F) clarifies what other rights are included within the meaning of the term grazing share.
It is important to note that each determination by the Commission under sections 52(1C),(1D) and (1E) is subject to the appeal provisions in new section 52A _ see section 33 of the draft Bill. This therefore affords the person accused of a breach to challenge the Commission's actions in court at each stage. |
31 Contravention of, or failure to comply with, common grazings regulations
In section 52 of the 1993 Act (miscellaneous provisions as to common grazings etc.), for subsection (1) there is substituted–
"(1) Where it is averred by the grazings committee or the owner that a person has contravened, or failed to comply with, any common grazings regulations for the time being in force under section 49 of this Act, the committee or as the case may be the owner may apply to the Commission for a determination in the matter.
(1A) On receipt of an application made under subsection (1) above the Commission–
(a) shall serve notice on the person of the averment; and
(b) shall send a copy of that notice to the grazings committee and to the owner.
(1B) The person, the committee and the owner shall all be afforded the opportunity to make representations as regards the averment and the Commission or assessors appointed by them may, if the Commission think fit, hear evidence in the matter.
(1C) If the Commission determine that the averred contravention or failure has occurred they may require the person to conform with the regulation in question and to make good, within such reasonable period as they shall specify, any damage which has directly resulted from the occurrence.
(1D) Where a requirement imposed under subsection (1C) above is not complied with (but subsection (1E) below does not apply) the Commission may–
(a) determine that all or part of the person’s share in the common grazing is suspended for such period as they shall specify; and
(b) may, if the non-compliance consists in a failure to make good damage within the period specified under subsection (1C) above, require it be made good within such further period as they may specify.
(1E) Where, while the person’s share in the common grazing is suspended by virtue of subsection (1D) above, a requirement imposed under subsection (1C) or as the case may be (1D) above is not complied with, the Commission may–
(a) determine that all or part of that share is terminated; and
(b) apportion the share or part to other persons sharing in the common grazing.
(1F) Reference in this section to a share in the common grazing includes reference to any rights and privileges pertaining to that share. ".
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