Section 32: Schemes for development
Section 32 introduces a set of concepts designed to enable development of croft land for non-crofting use while retaining the role of the Land Court in ensuring that the interests of crofters are protected and maximising the scope for retaining land in crofting tenure. It does this by means of section 32(1) which inserts a new section 19A into the 1993 Act. New section 19A allows a landlord or owner to apply to the Land Court for consent to develop croft land and common grazing in accordance with a scheme which is to accompany the application. The scheme could include the ending of all or some of crofters' rights on that land or make different arrangements for different parts of the land. This ending of rights would be binding upon both crofters and their successors in tenancy. The most useful example of the flexibility this approach allows would be where a development is built on one area of land (which might be fenced off with no access for grazing), while rights to burn heather or shoot ground game are ended on a neighbouring stretch in order to secure the future operation of the development.
New section 19A(1) provides that an application to make a scheme may be made by the landlord (or owner) or an agent for the landlord or owner. The application can include land adjacent to the croft land or common grazing if there is an effect on the rights and liabilities relative to the croft land or common grazing. The proposed scheme is to accompany the application.
New section 19A(2) provides the criteria such a scheme must meet in order to obtain the Land Court's consent to it. Firstly, the development has to be for a reasonable purpose and as new section 19A(3)(a) indicates this means the same as it would mean in the context of resumption and decrofting. Secondly, the development must not be unfair and what is unfair is explained in new section 19A(3)(b). Thirdly, the scheme must provide for recompense, defined in new section 19A(3)(c), to each member of the crofting community (crofting community for this purpose is defined in section 37) and that new section also sets a minimum acceptable amount of compensation that is to be paid to each member of the community. Finally, the development must be one which would be likely to bring benefits to the community at least comparable with the benefit which could be achieved if the development had progressed by other means. |
PART 5
SCHEMES FOR DEVELOPMENT
32 Schemes for development
(1) After section 19 of the 1993 Act, there is inserted–
"19A Schemes for development
(1) The landlord (or owner), or any person acting with the consent of the landlord (or owner), may by application to the Land Court seek its consent to–
(a) croft land or common grazing; or
(b) land near to croft land or common grazing if rights and liabilities in relation to the croft land or common grazing would be affected,
being developed in accordance with a scheme appended to the application.
(2) Such consent is not to be given unless the Court is satisfied–
(a) that the development is for a reasonable purpose;
(b) that to carry it out would not be unfair;
(c) that the scheme provides for there to be fair recompense to each member of the crofting community in the area affected by the development for the effects of the development (including, in relation to the croft land of each such member, compensation at least equivalent to the compensation which the member might be expected to have obtained had that croft land been resumed);
(d) that, were the development carried out–
(i) that community would be likely to benefit financially; and
(ii) such benefit would be at least commensurate with any financial benefit which the members of that community might obtain on the development proceeding other than by virtue of this section.
(3) For the purposes of subsection (2) above–
(a) the definition of "reasonable purpose" in subsection (3) of section 20 of this Act applies as it does for the purposes of subsection (1) of that section;
(b) it is unfair to carry out a development only where to do so would have significant adverse consequences for one or more of the members of the crofting community in the area affected by the development and either those consequences would be disproportionately greater than the adverse consequences for the other members of that community or there would be no adverse consequences for those other members; and
(c) whether recompense is fair is to be determined having regard both to the value of the development and to its effect on the member in question.
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New sections 19A(4) and (5) make provision for the Land Court to specify the form in which the application must be made, the form and content of the scheme to accompany the application and to set the amount of court fees. |
(4) The application for consent shall–
(a) be made in such form; and
(b) be accompanied by such fee,
as the Court shall specify; and the Court may make different provision for different categories of case.
(5) Provision made under subsection (4)(a) above shall include provision as to the form and content of the appended scheme.
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New section 19A(6) ensures that details of the application are made public by requiring the applicant to give public notification of it (public notification is defined in new section 55A inserted by section 35 of the Bill). New section 19A(7) specifies the time limit (28 days after public notification is given) for lodging objections to the application and the scheme and who may object. The right to object is widely drawn and specifically includes the Commission as well as any other interested party. The Land Court is required to hear the objections before reaching a decision on the scheme. |
(6) The person making the application shall forthwith give public notification of it.
(7) Within 28 days after the public notification is given (including the day on which given)–
(a) the Commission; or
(b) any other interested party,
may submit to the Court written objections as respects the application; and the Court shall hear the objectors (if any) before determining whether to give consent under this section.
(8) The Court shall, whether or not there is a hearing under subsection (7) above, give reasons for any such determination.
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New section 19A(9) requires the Land Court, if it consents to the scheme, to provide the Commission with a copy of the scheme and requires the Commission to enter the copy in the Register of Crofts. New section 19A(10) provides that once the copy is entered in the Register of Crofts the scheme will be binding on all the parties and their successors.
It is important to note that this section makes no provision for the amendment of the scheme by the Land Court or by the person applying for consent to the scheme once the application is made. The scheme in the application will therefore stand or fall on its merits. This implies that to obtain consent to the scheme there will need to be substantial discussion with and investigation of the circumstances of the community and each member of that community before an application is made. It would also not be necessary for the scheme to have the consent of the community. Although a community substantially opposed to an application would almost certainly argue that the criteria for consent are not met.
Section 32(2) makes a minor technical amendment to section 49 of the 1993 Act which is consequential on the provisions of new section 19A. The effect is to ensure that grazings regulations cannot ignore the terms a new scheme made under section 32. |
(9) On giving consent under this section the Court shall intimate to the Commission that it has done so and provide them with a copy of the scheme in accordance with which the development is to take place; and the Commission shall enter that copy in the Register of Crofts.
(10) When so entered the scheme shall, in so far as its terms so provide, be binding on the landlord (or owner), on any member of the crofting community in the area affected by the development and on the successors to those persons.".
(2) In section 49 of the 1993 Act (common grazings regulations), after subsection (8) there is added–
"(9) Nothing contained in a scheme consented to under section 19A of this Act is, for the purposes of subsection (8) above, an agreement.".
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