Section 33: Appeal to the Land Court and jurisdiction of that court.
This section creates a new and wide ranging right of appeal to the Land Court against decisions and other actions taken by the Commission. Section 33(1) inserts new section 52A into the 1993 Act. New section 52A(1) sets out the detail of the new right of appeal _ a right of appeal against any decision, determination or direction of the Commission or any imposition by them of a condition in response to an application made to them under the 1993 Act as amended by this Bill. For example this right of appeal would apply to a decision by the Commission to refuse consent for an assignation of a croft or a determination by the Commission that there had been a contravention of grazings regulations by a particular shareholder in a grazing. New section 52A(2) extends that right of appeal to any person with an interest in the application and that would include for example prospective tenants in the case of applications for assignation and re-let. New sections 52A(3) _ (5) explain the appeal process including the time allowed for the appeal and new section 52A(4) also requires the Commission to provide the Land Court with a written statement setting out the circumstances which gave rise to the application, the decision they reached and the reasons for that decision. |
PART 6
GENERAL AND MISCELLANEOUS
General
Appeal to Land Court and jurisdiction of that court
(1) Before section 53 of the 1993 Act there is inserted–
"52A Appeal to Land Court: general
(1) An appeal shall lie on any question of fact or law to the Land Court against–
(a) any decision, determination or direction of, or
(b) the imposition of a condition by,
the Commission on an application made to them under this Act.
(2) The appellant may be the applicant or any person with an interest in the application.
(3) The appeal must be brought within 42 days after the Commission dispose of the application.
(4) The appellant shall give notice in writing to the Commission that he has appealed; and the Commission shall, as soon as practicable after receiving such notice, provide the Land Court with a written statement as to the circumstances out of which the application arose (as found by them or agreed with the appellant) and as to why they disposed of the application as they did.
(5) The Land Court shall send the appellant a copy of that statement.
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New section 52A(6) specifies how the Land Court may dispose of an appeal. |
(6) In an appeal under subsection (1) above the Court may confirm the decision, determination, direction or imposition or direct the Commission to come to a different decision, make a different determination or direction or impose a different (or no) condition.
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New section 52A(7) provides that the appeal arrangements will also apply to Commission approval of the re-letting of a croft and variation, withdrawal and revocation of approval of the use of common grazings for other purposes (all actions which are not covered by the wording of new section 52A(1)) because these cannot be described as a decision, determination or direction.
New section 52A(8) narrates the cases which are excluded from the appeals procedure under section 52A. In one case because a specific appeal provision is already in place within section 25(8) the 1993 Act and in the other two cases there are specific new appeal provisions created by sections 17 and 23 of this draft Bill.
New section 52A(9) provides that a decision by the Commission under the provisions of new section 58A (inserted by section 5 of this draft Bill) not to intervene or that an objection under that section is frivolous, vexatious or unreasonable cannot be the subject of an appeal. The decision under section 58A that can be appealed is a decision to grant or refuse an application.
Section 33(2) amends the provisions in section 53 of the 1993 Act dealing with the jurisdiction of the Land Court to determine questions of fact or law arising under the Act. The effect of the new proviso (ii) to section 53(1) is that the Land Court cannot decide in the first instance a matter for which there is a right of appeal under new section 52A. The Land Court may in such cases only deal with the appeal under that section. The effect of the new proviso (iii) is essentially the same as the current proviso (ii). It ensures that the Land Court cannot substitute its own decision for a decision by the Scottish Ministers or the Commission made under the provisions of the 1993 Act as amended by this Bill except on a question of law.
The effect of new proviso (iv) is that if a property has been recorded as a croft in the Register of Crofts for more than 20 years its status as a croft cannot be challenged in the Land Court.
Subsection 33(2)(b) is a purely technical amendment to section 53. |
(7) Subsections (1) to (6) above also apply, but with such modifications as are necessary, to–
(a) a granting of approval under section 23(3), or
(b) a variation, withdrawal or revocation under section 50B(8), of this Act.
(8) Subsections (1) to (6) above do not apply where an appeal lies under section 10(4B), 25(8) or 38A of this Act.
(9) In subsections (1) to (6) above, "decision" does not include a decision under section 58A of this Act as to whether or not to intervene or any determination by the Commission that an objection under subsection (4) of that section is frivolous, vexatious or unreasonable.".
(2) In section 53 of the 1993 Act (jurisdictional provisions)–
(a) in the proviso to subsection (1), for paragraph (ii) (and the word "or" immediately preceding that paragraph) there is substituted–
"(ii) any question arising by virtue of an application to the Commission under this Act;
(iii) any other question (other than a question of law), if it is a question decided by the Scottish Ministers or the Commission in the discharge of any of their respective functions under this Act; or
(iv) on an application or reference made twenty years or more after a holding has been entered in the Register of Crofts, that the holding is not a croft."; and
(b) in subsection (2), for the words "this Act" there is substituted "subsection (1) above".
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Section 34: Further amendments in relation to the Land Court
This section amends the provisions of Schedule 1 to the Scottish Land Court Act 1993. Subsection (2) redefines what constitutes a quorum of members of the Land Court. The effect of that would be to ensure that when the Chairman is sitting only one other member of the Land Court is required to constitute a quorum. Subsection (3) amends paragraph 6 of Schedule 1 with regard to appeals against orders or determinations which have been delegated from the full court and makes provision for former members of the Land Court to be used as members of the full court to hear appeals on decisions taken by a single member of the court (other than the Chairman). Subsection (4) makes provision for the Chairman of the Land Court to have a casting vote. Subsection (5) defines what is meant by nominated former members. Subsection (6) is a consequential provision. |
34 Further amendments in relation to the Land Court
(1) Schedule 1 to the Scottish Land Court Act 1993 (c.45) (incorporation etc. of the Scottish Land Court) is amended as follows.
(2) In paragraph 5 (quorum), for the words "three members of the Land Court shall be a quorum" there is substituted "a quorum of the Land Court shall be–
(a) three of its members if none of the three is the Chairman; or
(b) the Chairman and one other of its members".
(3) In paragraph 6 (delegation)–
(a) in sub-paragraph (2), for the words from "shall" to the end there is substituted ",other than a delegation to one member where that member is the Chairman, shall be subject to review upon appeal by three or more members, or nominated former members, of the Land Court sitting together; and one of the members so sitting shall be the Chairman."; and
(b) sub-paragraph (3) is repealed.
(4) After paragraph 6 there is inserted–
"6A On any question being determined by the Land Court, whether or not by virtue of paragraph 6 of this Schedule, the Chairman shall have a casting vote.".
(5) After paragraph 7 there is inserted–
"7A The reference in paragraph 6(2) of this Schedule to nominated former members is to such members as have vacated office, whether or not under paragraph 2 of this Schedule, and in relation to the particular review have been nominated under this paragraph by the principal clerk.".
(6) In paragraph 18 (payments to persons appointed etc.), for the words "or employed under paragraph 7" there is substituted ", employed or as the case may be nominated under paragraph 7, 7A". |
Section 35: Public Notification
This section inserts new section 55A into the 1993 Act and describes what constitutes public notification for the purposes of the Act where such notification is required by the Act. (Public notification is required for example by new sections 58A(4) and 32(6)). It is given essentially by publication of an appropriate notice in one or more local newspapers. The contents of the notice will generally be specified by the Commission (new section 53A(2)). New section 55A(3) provides that in any case where notification is to be given to a specified person that notification should be in the same form as the public notification. |
35 Public notification
After section 55 of the 1993 Act, there is inserted–
"55A Public notification
(1) For the purposes of this Act, public notification shall be given by publishing or causing to be published a notice in appropriate form in one or more newspapers circulating in the district in which the croft or, as the case may be, common grazing to which the application relates (or in the case of public notification under section 50B(4)(a)(ii) the regulations relate) is situated.
(2) A notice is in appropriate form if–
(a) its form and content complies, or does so as far as is reasonably practicable, with that specified by the Commission for an application of that type (or as the case may be for regulations under section 49(2)(g) of this Act); and
(b) it specifies–
(i) the purpose of the application to which it relates (or in the case of regulations the matters which are required to be set out in it by virtue of section 50B(4)(a)(ii) of this Act);
(ii) a description of the croft land or, as the case may be, common grazing to which the application relates (or regulations relate); and
(iii) in the case of an application, the period during which, and manner in which, objections may be made.
(3) Where, in accordance with the provisions of this Act, a person giving public notification is also required to serve notice on a landlord, tenant or occupier of croft land to which the application relates or, if applicable, on the owner of or a crofter sharing in the common grazing, such notice shall be in the form required by subsection (2) above.".
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Section 36: "members of a family"
This section amends section 61 of the 1993 Act to the extent that it amends the definition of persons who comprise members of a family for purposes of the 1993 Act. This reduces the breadth of "family" within the context of crofting legislation. The current definition defines family as extending to anyone who is, or would in any circumstances be, entitled to succeed to the crofter's estate on intestacy by virtue of the provisions of the Succession (Scotland) Act 1964. This would include cousins and more distant blood relatives. The new definition also now includes a civil partner or co-habitant and defines the terms co-habitant, sibling and son or daughter. The definition of co-habitant for the purposes of this draft Bill is provided for illustrative purposes only. It is intended that the definition will be modified as required in due course to make it consistent with whatever term is contained in the Family Law (Scotland) Bill currently at Stage 1 of consideration by the Scottish Parliament. |
36 "Members of a family"
In section 61 of the 1993 Act (interpretation)–
(a) in subsection (2), for the words from "the wife" to the end, there is substituted "the individual in question’s–
(a) spouse or civil partner (or cohabitant provided that the individual has no spouse or civil partner and that the cohabitation has included cohabitation for at least two years in a dwelling-house on or pertaining to the croft);
(b) sibling;
(c) sibling’s spouse or civil partner;
(d) spouse’s or civil partner’s sibling;
(e) father;
(f) mother;
(g) son;
(h) daughter;
(i) son’s or daughter’s spouse or civil partner;
(j) grandchild;
(k) grandchild’s spouse or civil partner;
(l) aunt;
(m) uncle;
(n) nephew; or
(o) niece."; and
(b) after that subsection there is added–
"(3) In subsection (2)(a) above, the reference to an individual’s cohabitant is to a person, whether or not of the same sex as the individual, who lives with the individual as if–
(a) in a married relationship; or
(b) in civil partnership.
(4) In subsection (2) above–
"sibling" includes a sibling by virtue only of adoption, marriage or civil partnership and a sibling of the half blood;
"son", "daughter" or "grandchild" includes a person so related by virtue only of adoption, marriage or civil partnership; and
"son" or "daughter" includes a son, or as the case may be a daughter, of the individual’s cohabitant provided that such son or daughter resides with the individual and that such residence has included residence for at least one year in a dwelling-house on or pertaining to the croft.".
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Section 37: "Crofting Community"
This section defines the expression "crofting community" for the purposes of the 1993 Act by adding this definition to the list of definitions in section 61(1) of the Act. It therefore defines which persons will be considered to be members of the crofting community and therefore are afforded a right to have a valid objection to certain proposals considered by the Commission. |
37 "Crofting community"
In section 61(1) of the 1993 Act (interpretation), at the appropriate place there is inserted–
""crofting community" means all the persons who (either or both)–
(a) occupy crofts within a township which consists of two or more crofts and is registered with the Crofters Commission;
(b) hold shares in a common grazing associated with that township.".
38 "The 1993 Act"
In this Act "the 1993 Act" means the Crofters (Scotland) Act 1993 (c.44). |
Section 39: Minor and consequential amendments
This gives effect to Schedule 2 |
Miscellaneous
39 Minor and consequential amendments
Schedule 2 to this Act, which contains minor amendments and amendments consequential on the provisions of this Act, has effect. |
Section 40: Savings
This section ensures continuity of any process leading to a decision by the Commission which has started before the new provisions come into force. The effect is that any decision on such a process will be reached in accordance with the un-amended provisions of the 1993 Act. |
40 Savings
(1) Nothing in this Act affects an application made, or proceedings commenced, before this section comes into force.
(2) Nothing in this Act affects any provision of the 1993 Act amended or repealed by this Act in that provision’s operation in relation to an offence committed before the amendment is made or, as the case may be, the provision is repealed.
41 Transitional provisions etc.
(1) The Scottish Ministers may, by order made by statutory instrument, make such incidental, supplemental, consequential, transitional transitory or saving provision as they consider necessary or expedient for the purposes of, or in consequence of, this Act.
(2) Subject to subsection (4), a statutory instrument containing an order under subsection (1) is subject to annulment in pursuance of a resolution of the Scottish Parliament.
(3) An order under subsection (1) may make different provision for different cases or for different classes of case.
(4) An order under subsection (1) may amend or repeal any enactment; and if it does is not made unless a draft of the statutory instrument containing the order has been–
(a) laid before; and
(b) approved by a resolution of,
the Scottish Parliament.
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Section 42: Repeals
This section gives effect to the repeals in Schedule 3. |
42 Repeals
The enactments mentioned in schedule 3 to this Act are repealed to the extent mentioned
in the second column of that schedule.
43 Short title, Crown application and commencement
(1) This Act may be cited as the Crofting Reform etc. Act 2005.
(2) This Act binds the Crown.
(3) The provisions of this Act, except this section and sections 38, 40 and 41, come into force on such day as the Scottish Ministers may by order made by statutory instrument appoint.
(4) Different days may be so appointed for different provisions and for different purposes. |
Schedule 1
This Schedule substitutes a new Schedule for Schedule 1 to the 1993 Act. New Schedule 1 brings the constitutional provisions about the Commission together in one place (they appear at present in section 1 of and Schedule 1 to the 1993 Act) and makes changes to the constitutional arrangements and powers of the Commission. The most significant changes in the functions of the Commission in Schedule 1 to the 1993 Act are contained in the following paragraphs of new Schedule 1:
paragraph 3 gives the Commission power to buy and sell property, enter into contracts and charge for services;
paragraph 12 transfers to the Commission the responsibility to pay its members (currently paid by the Scottish Executive);
paragraph 13 enables the Commission to employ staff (they are currently employed by the Scottish Executive);
paragraph 16 will allow the Commission to delegate certain functions, previously reserved to Commissioners, to the staff of the Commission, and;
paragraph 18 requires the Commission to keep accounts. |
SCHEDULE 1
(introduced by section 1)
THE CROFTERS COMMISSION
For Schedule 1 to the 1993 Act, there is substituted–
"SCHEDULE 1
(introduced by section 1)
THE CROFTERS COMMISSION
Status
1 The Commission shall be a body corporate.
2 The Commission shall not be regarded as a servant or agent of the Crown, or as having any status, immunity or privilege of the Crown, nor shall its members or its employees appointed under paragraph 13(3) be regarded as civil servants, nor its property as property of, or held on behalf, the Crown.
General powers
3 (1) The Commission may do anything which appears to them to be necessary or expedient for the purposes of, or in connection with the discharge of their functions; and without prejudice to that generality they may in particular–
(a) co-operate with other persons in matters relevant to the discharge of their functions;
(b) acquire and dispose of land and other property;
(c) enter into contracts;
(d) charge–
(i) in respect of regulatory activities, such amounts as may be prescribed by the Scottish Ministers; and
(ii) in respect of any other service provided by them, such amounts as appear to them to be reasonable.
(2) In head (i) of sub-paragraph (1)(d) above, "regulatory activities" means such activities, or descriptions of activities, as may be prescribed by the Scottish Ministers; but neither such activities nor such other service as is mentioned in head (ii) of that sub-paragraph shall include things for which a fee is chargeable under, or by virtue of, section 41B of this Act.
Members
4 The Commission shall consist of no more than nine members, appointed by the Scottish Ministers.
5 The members appointed shall include–
(a) persons with knowledge of crofting; and
(b) at least one person who can speak the Gaelic language.
6 (1) The Scottish Ministers shall satisfy themselves–
(a) before they appoint a person to be a member, that the person will have no such financial or other interest as is likely to affect prejudicially the performance of the person’s functions as a member; and
(b) from time to time, that each person so appointed continues, and has continued, to have no such interest.
(2) For the purposes of sub-paragraph (1), the fact that a person is a crofter, a landlord or owner-occupier of a croft or a member of the family of any such person shall not of itself constitute an interest mentioned in that sub-paragraph.
7 A person in respect of whom the Scottish Ministers require to be satisfied as is mentioned in paragraph 6(1) shall, whenever requested by the Scottish Ministers to do so, furnish them with such information as they may consider necessary for the purposes of fulfilling that requirement.
8 (1) The Scottish Ministers may, after consulting such persons or groups of persons as they consider appropriate, by order made by statutory instrument amend paragraph 4 so as to substitute for the number for the time being specified as the maximum number of members of the Commission such other number as they think fit.
(2) No order under sub-paragraph (1) may be made unless a draft of the statutory instrument containing the order has been laid before and approved by resolution of the Scottish Parliament.
Terms of office etc.
9 (1) Subject to the provisions of this Schedule, the appointment of a member under paragraph 3 shall be on such terms and conditions as the Scottish Ministers may determine.
(2) Subject to section 19 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 (asp 7), a person holds and vacates office as member in accordance with the person’s terms of appointment.
(3) A person may resign office as member at any time by notice in writing to the Scottish Ministers.
Eligibility for re-appointment
10 A person who ceases, otherwise than by virtue of section 19 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 (asp 7), to be a member of the Commission shall be eligible for re-appointment.
Chairing the Commission
11 (1) The Scottish Ministers shall appoint one of the members of the Commission to chair the Commission.
(2) The appointee above shall–
(a) cease automatically to chair the Commission on ceasing to be a member of it;
(b) otherwise hold and vacate office in terms of the appointment.
(3) The appointee may resign the appointment by notice in writing to the Scottish Ministers.
Remuneration, pensions, allowances etc. of members
12 The Commission shall–
(a) pay to their members such remuneration and allowances as the Scottish Ministers may determine;
(b) pay, or make payments towards the provision, to or in respect of such of their members or former members as the Scottish Ministers may determine, of such pension, allowance or gratuity as the Ministers may determine.
Chief executive and other staff
13 (1) The Scottish Ministers shall, after consultation with the person appointed or designated to chair the Commission (if there is such a person), make the first appointment of the chief executive of the Commission on such terms and conditions as the Ministers may determine.
(2) The Commission may, with the approval of the Scottish Ministers, make subsequent appointments to the post of chief executive on such terms and conditions as they may, with the approval of the Scottish Ministers, determine.
(3) The Commission may appoint such other staff, on such terms and conditions, as they may consider appropriate.
(4) The Commission may–
(a) pay, or make arrangements for the payment of;
(b) make payments towards the provision of; and
(c) with the approval of the Scottish Ministers, provide and maintain schemes (whether contributory or not) for the payment of,
such pensions, allowances and gratuities to or in respect of such of their employees, or former employees, as they may determine.
(5) The reference in sub-paragraph (4) to pensions, allowances and gratuities includes a reference to pensions, allowances and gratuities by way of compensation for loss of employment.
(6) The Scottish Ministers may give directions as to–
(a) the appointment of staff by the Commission (including any conditions to be fulfilled for appointment);
(b) terms and conditions of such appointment; and
(c) any provision that may be made by the Commission under sub-paragraph (4).
Committees
14 (1) The Commission–
(a) shall establish an audit committee for the purpose of–
(i) approving the Commission’s audit plans and reports, reviewing the operation of the plans and making recommendations as to their modification;
(iii) co-ordinating any response the Commission’s may make to recommendations contained in audit reports produced by others;
(iii) securing that the Commission have procedures which will facilitate financial probity and ensure that considerations of quality and effectiveness are given due regard when decisions are taken by them; and
(b) may establish such other committees for such purposes as they think fit.
(2) The Commission may appoint as members of any of their committees persons who are not members of the Commission; but no such committee shall consist entirely of such persons.
(3) The Commission shall pay to a person so appointed such remuneration and allowances as the Scottish Ministers may determine.
(4) A committee of the Commission shall comply with any directions given to it by the Commission.
Procedure
15 (1) The Commission shall have an office in at least one of the crofting counties for the purpose of receiving communications and notices.
(2) Subject to the provisions of this Schedule, the Commission may regulate their own procedure and that of any of their committees (including any quorum and, the appointment of a person to chair a meeting where the person appointed under paragraph 11(1) to chair the Commission is unavailable to chair a meeting or is otherwise unable to do so).
(3) The Commission shall maintain a record of their meetings and decisions and of the meetings and decisions of their committees.
(4) The validity of any proceedings of the Commission, or of any of their committees, shall not be affected by any vacancy in membership nor by any defect in the appointment of a member.
Delegation of functions
16 (1) Anything authorised or required by any enactment to be done by the Commission may be done by any of their members or staff authorised (generally or specifically) for the purpose by the Commission.
(2) Nothing in sub-paragraph (1) shall prevent the Commission from doing anything which any of their members or staff has been so authorised to do.
Returns etc. to Scottish Ministers
17 The Commission shall–
(a) furnish the Scottish Ministers with such returns, accounts and other information with respect to the discharge of the Commission’s functions, and the Commission’s property and activities or proposed activities, as the Scottish Ministers may from time to time require;
(b) afford to the Scottish Ministers facilities for the verification of information so furnished; and
(c) for the purpose of such verification, permit any person authorised in that behalf by the Scottish Ministers to inspect and make copies of the accounts, books, documents or papers of the Commission and to give that person such explanation of anything the person is entitled to inspect as the person may reasonably require.
Annual accounts etc.
18 (1) The Commission shall–
(a) keep accounts; and
(b) prepare annual accounts in respect of each financial year, in accordance with such directions as the Scottish Ministers may give them.
(2) Without prejudice to paragraph 17, the Commission shall submit their annual accounts in respect of each financial year to the Scottish Ministers by such date as the Scottish Ministers may direct.
(3) The Scottish Ministers shall send the Commission’s annual accounts to the Auditor General for Scotland for auditing.
(4) If requested by any person, the Commission shall make available at any reasonable time, without charge, in printed or in electronic form, their audited accounts, so that they may be inspected by that person.
Annual report
19 (1) Without prejudice to paragraph 17, as soon as practicable after the end of each financial year, the Commission shall submit to the Scottish Ministers a report on the discharge of the Commission’s functions during that year.
(2) The Scottish Ministers shall lay before the Parliament a copy of each report submitted to them under sub-paragraph (1).
Interpretation
20 In paragraphs 18 and 19 above, "financial year" means the period of twelve months ending with 31st March.". |
Schedule 2
This Schedule sets out certain amendments to existing legislation. |
SCHEDULE 2
(introduced by section 39)
MINOR AND CONSEQUENTIAL AMENDMENTS |
Paragraph 1 amends a provision of the Crofters Holdings (Scotland) Act 1886 which is still in force to bring that provision into line with the changes which are made by section 14 of the Bill |
Crofters Holdings (Scotland) Act 1886 (c.29)
1 In section 1(4) of the Crofters Holdings (Scotland) Act 1886 (crofter not to be removed except for breach of statutory conditions), for the words "subdivide his holding or sublet the same" there is substituted "sublet his holding".
Crofters (Scotland) Act 1993 (c.44)
2 (1) The 1993 Act is amended in accordance with this paragraph. |
Paragraph 2(2) reflects the possibility of the return of resumed land to crofting tenure through the provisions contained in section 24 of the Bill. |
(2) In section 3(1) (meaning of "croft"), after paragraph (c) there is inserted–
"(cc) as from the date of registration, every holding situated as aforesaid and registered by virtue of an application under section 3A of this Act;
(cd) as from the date of reversion, every holding reverting under section 20(1B), or by virtue of section 21A(1), of this Act;";
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Paragraph 2(3) leaves the determination of the initial rent of an enlarged croft to be settled between landlord and tenant. |
(3) In section 4 (enlargement where owner and crofter are in agreement), after subsection (2) there is inserted–
"(2A) The crofter shall pay to the landlord such rent as they shall agree for the croft as enlarged under subsection (1) above.".
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Paragraph 2(4) provides that the standard conditions applied to croft tenants should not apply to a short-term tenancy created by the provisions of section 27 of the Bill. |
(4) In section 5(1) (the statutory conditions), at the end there is added "; except that this subsection is subject to section 29A(3) of this Act".
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Paragraph 2(5) allows the Land Court, in authorising a tenant to purchase croft land, to direct that the costs of the action be borne by the tenant. This is consistent with the arrangements that already apply when the croft tenant is acquiring a house site. |
(5) In section 13 (authorisation by Land Court of acquisition of croft land), at the end there is added–
"(6) Subsection (3) of section 15 of this Act shall apply in relation to an order under subsection (1)(a) above as it applies in relation to an order under subsection (1) of that section.".
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Paragraph 2(6) extends the provisions of section 24(1) permitting enlargement of crofts to new crofts and land reverting to being crofts under the respective provisions in sections 10 and 24 of the Bill. |
(6) In section 24(1) (decrofting in case of resumption of croft), at the end there is added "and to sections 3A and 21A of this Act".
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Paragraph 2(7) means that the Commission is no longer required from publicising an application to decroft land conveyed as a feu under the provisions of the Crofters (Scotland) Act 1955. This means that, in this respect, such applications are treated in the same way as an application to decroft a house site. |
(7) In section 25(6) (decrofting: supplementary provision), after the words "pertaining to the croft" there is inserted "or only of land the conveyance in feu of which was granted under section 17 or 18 of the 1955 Act".
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Paragraph 2(8) makes a technical amendment to section 41(1) and would amend section 41(2) to provide that the Register of Crofts includes details of common grazings and require owners and those who have shares in the grazings to provide information about the grazings in the same way as landlords and croft tenants are required to do for crofts. |
(8) In section 41 (Register of Crofts)–
(a) in subsection (1), for the words from "a" to "Crofts")" there is substituted "the Register of Crofts"; and
(b) after subsection (2), there is inserted–
"(2A) Subsection (2) above applies in relation to land constituted as a common grazing under section 51A of this Act, the owner of that land and the persons sharing in the common grazing as it applies in relation to a croft and its landlord and tenant; and an entry made by virtue of this subsection must contain the information that the common grazing is so constituted.".
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Paragraph 2(9)(a) amends subsection (1) of section 42 of the 1993 Act to widen the use to which grants and loans paid to crofters by Scottish Ministers may be put. Paragraph 2(9)(b) inserts a new subsection 42(1A) into the 1993 Act and this requires that grant schemes shall have specific criteria as to who may receive grant (which for example opens up the possibility of applying an economic status test to applicants who are crofters).
It should be noted that these provisions only apply to grants and loans payable by Scottish Ministers. Section 4 of the Bill gives the Commission power to pay grants in a wide range of circumstances. In future, grants to crofters will in most circumstances be administered by the Commission under the powers given to them by section 4. |
(9) In section 42 (financial assistance to crofters)–
(a) in subsection (1), for the words "aiding and developing agricultural production on" there is substituted "supporting any reasonable use which promotes the sustainable development of"; and
(b) after that subsection there is inserted–
"(1A) Such schemes shall specify criteria for determining who shall be eligible for grants and loans payable thereunder (as for example, the occupier’s income, or the rental or agricultural value or extent of his croft); and different schemes may specify different criteria.".
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Paragraph 2(10)(a)(i) amends section 43 of the 1993 Act to reflect the fact that the Crofters Holdings book will now be held by the Crofters Commission (see new section 2(4) and the repeal of section 54 of the 1993 Act in Schedule 3).
Paragraph 2(10)(a)(ii) amends section 43 of the 1993 Act to remove the provision transferring the tenant's right to compensation for improvements to Scottish Ministers. This right was rarely exercised and is no longer considered necessary. Paragraph 2(10)(b) makes an amendment which is consequential upon this change. |
(10) In section 43 (supplementary provisions as to loans under section 42)–
(a) in subsection (3)–
(i) for the words "principal clerk of the Land Court" there is substituted
"Commission"; and
(ii) the words from "and as recorded" to the end are repealed;
(b) subsection (4) is repealed.
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Paragraph 2(11) alters the criteria for non-crofters to qualify for grant. Paragraph 2(11)(a) and 2(11)(b)(iii) removes the requirement that the owner of a holding that is not a croft must have the same economic status as a crofter and instead provides that the individual in question must use the holding in substantially the same way as a crofter. Paragraph 2(11)(b)(i) does the same for owner occupiers of crofts. These changes recognise the diverse economic status of crofters today. Paragraph 2(11)(b)(ii) allows Scottish Ministers to pay grants to the short term tenants of croft land created by section 27 of this draft Bill. |
(11) In section 46 (financial assistance to owners and owner-occupiers of crofts and other holdings)–
(a) in subsection (2)(c), for the words from "is of substantially" to "as a crofter" there is substituted "uses his holding in a way which is substantially the same as that of a crofter";
(b) in subsection (4)–
(i) in paragraph (a), for the words from "are of substantially" to "as a crofter" there is substituted "use their crofts in a way which is substantially the same as that of a crofter"; and
(ii) after that paragraph there is inserted–
"(aa) for short-term tenants;";
(iii) in paragraphs (b) and (c), for the words from "are of substantially" to "as a crofter" there is substituted "use their holdings in a way which is substantially the same as that of a crofter".
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Paragraph 2(12) is a simple technical change to do with rationalisation of the use of "common grazing" and "common grazings" in the legislation. |
(12) In section 47(9) (payment of annual remuneration to grazings clerk), for "grazings", in the second place it occurs, there is substituted "grazing".
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Paragraph 2(13) also contains technical changes as described in relation to paragraph 2(12) above and in addition it amends section 48 of the 1993 Act to empower the grazings committee to put the common grazing to any wider use approved under the provisions of new section 50B, to carry out works for that purpose and to maintain the common grazing for that use. It also empowers the committee to raise funds to implement a wider use approved under section 50B(8) but only if a majority of the grazings committee votes to do so. |
(13) In section 48 (powers and duties of grazings committees)–
(a) in subsection (1)–
(i) in paragraph (a), for the word "grazings" there is substituted "grazing" and for the word "therewith" there is substituted "with such maintenance and with the implementation of any proposal approved under section 50B(8) of this Act";
(ii) after paragraph (b) there is inserted–
"(bb) to carry out works in implementation of any such proposal as is mentioned in paragraph (a) above;"; and
(iii) in the proviso to paragraph (c), for "grazings", in the second place it occurs, there is substituted "grazing";
(b) in subsection (2)–
(i) for the word "grazings", in the second place it occurs, there is substituted "grazing"; and
(ii) for the words "subsection (1)(b)" there is substituted "subsection (1)(b) or (bb)";
(c) after subsection (4) there is inserted–
"(4A) Where the grazings committee have obtained the approval referred to in subsection (5) of section 50B of this Act, they may, subject to any conditions imposed under subsection (8) of that section and for the time being in force (and to the approval not having been revoked), use any part of the common grazing in accordance with the proposal.";
(d) in subsection (5), for the word "interested" there is substituted "who holds a right"; and
(e) after subsection (6) there is inserted–
"(6A) The powers of the grazings committee include the power to raise money (whether by borrowing or otherwise) for the purpose of implementing any proposal approved under section 50B(8) of this Act; but on any occasion they shall only exercise that power if a majority of the grazings committee vote to do so.".
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Paragraph 2(14) makes technical changes similar to those mentioned in relation in relation to paragraph 2(13) above plus further changes to ensure that the substantive changes made in paragraph 2(13) are given effect in common grazings regulations. |
(14) In section 49 (common grazings regulations)–
(a) in subsection (2)–
(i) in paragraph (a), for the word "grazings", in the second and third places it occurs, there is substituted "grazing" and for the word "therewith" there is substituted "with such maintenance or with the implementation of any proposals approved under section 50B(8) of this Act";
(ii) in paragraph (b), for the words "subsection (1)(b)" there is substituted "subsection (1)(b) or (bb);
(iii) in paragraph (c), for the words "and (b) respectively" there is substituted "to (bb)"; and
(iv) in each of paragraphs (d) and (e), for the word "grazings" there is substituted "grazing";
(b) in subsection (3), in–
(i) paragraph (a), for the word "grazings"; and
(ii) in paragraph (b), for the word "grazings", in both places it occurs, there is substituted "grazing"; and
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Note that paragraph 2(14)(c)(i) reflects the accurate legal position of the owner of a common grazing vis-à-vis crofters and others with a share in a common grazing. The owner is not the "landlord" in relation to shares and the exercise of other rights under crofting legislation. He is instead the "owner" of the land on which those shares are exercised. This correction has been made throughout the draft Bill. |
(c) in subsection (7)–
(i) for the word "landlord", in both places it occurs, there is substituted "owner"; and
(ii) for the word "grazings", in the first place it occurs, there is substituted "grazing".
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Paragraph 2(15)(a)(i) changes the description of a crofter with a share in a common grazing from one who is "interested" to one "who holds a right". This is a clarification of what the law means, and does not imply change.
Paragraph 2(15)(a)(ii) follows the clarification explained at 1(14)(c)(i) above. This clarification is also carried through in Paragraphs 15(b) and (c). |
(15) In section 50 (use of common grazings for forestry purposes)–
(a) in subsection (1)–
(i) for the word "interested" there is substituted "who holds a right"; and
(ii) in paragraph (b), for the word "landlord" there is substituted "owner";
(b) in subsection (2)–
(i) for the words "A landlord’s" there is substituted "An owner’s";
(ii) after paragraph (b) there is inserted–
"(bb) may be given subject to conditions provided that those conditions are reasonable;";
(v) in paragraph (c), for the word "landlord" there is substituted "owner"; and
(vi) in paragraph (e), for the word "landlord’s" there is substituted "owner’s";
(c) in subsection (3), for the words "A landlord’s" there is substituted "An owner’s"; and
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Paragraph 2(15)(d) ensures that where there is a joint crofter forestry venture involving both the landowner and crofters, this may not be interrupted by any ensuing crofter forestry application. |
(d) at the end there is added–
"(5) This section is without prejudice to section 50A of this Act and is subject to the terms of any agreement under that section.".
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Paragraph 2(16)(a) and (b) as elsewhere, changes the reference in section 52 of the 1993 Act to "grazings" to the singular and the description of a crofter "interested" in the grazing to one who holds a right in a common grazing. |
(16) In section 52 (miscellaneous provisions as to common grazings, as to lands held runrig and as to use by crofters of peat bogs etc.)–
(a) in subsection (2), for the word "grazings", in the second, third and fourth places it occurs, there is substituted "grazing";
(b) in subsection (4), for the words "interested, after consultation with the grazings committee, apportion a part of a" there is substituted "who holds a right in a common grazing, and after consultation with the grazings committee, apportion a part of the"; and
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Paragraph 2(16)(c) adds 6 new subsections to section 52 to give the Commission wider powers in relation to apportionments. New section 52(10) allows the Commission to specify that the apportionment should be for a particular period and/or subject to review at fixed intervals. New section 52(11) allows it to extend the original period and new section 52(12) allows the Commission to vary the conditions attached to the apportionment if either the crofter or township asks for that to be done.
New section 52(13) provides that when the period of apportionment ends or the apportionment is terminated the land will revert to being a common grazing and new section 52(14) provides that the Land Court will be empowered to make an order to reallocate grazing shares when land reverts to common grazing use. New section 52(15) makes it clear these powers will not extend to land newly constituted as common grazing under section 51A as that section provides that such land may only be used as agreed by the owner and those sharing in that new common grazing. |
(c) at the end there is added–
"(10) Without prejudice to the generality of subsections (3), (4) and (8) above, the Commission may under any of those subsections (either or both)–
(a) apportion a part for a period;
(b) determine that an apportionment shall be subject to review at fixed intervals,
which they shall specify.
(11) The Commission may extend any such period as is mentioned in subsection (10)(a) above on the application of the township which, or as the case may be the crofter who, has exclusive use.
(12) The Commission may, on the application of that township or crofter or of the grazings committee or owner vary any condition imposed under subsection (6) above.
(13) Where a period of apportionment fixed under subsection (10)(a) above (or so fixed and extended under subsection (11) above) comes to an end or it is determined on review under subsection (10)(b) above that an apportionment is to come to an end, the land in question reverts to being a common grazing.
(14) Where land reverts under subsection (13) above, the Land Court may make such order as it thinks fit as to shares in the common grazing.
(15) Subsections (10) to (14) above do not apply as respects land constituted as common grazing under section 51A of this Act.".
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Paragraph 2(17) clarifies the postal method required for notices which require to be sent by post. |
(17) In section 55 (service of notices), after subsection (1) there is inserted–
"(1A) A notice or other document is sent by post under this section if–
(a) in the case of an individual, it is sent by registered post or the recorded delivery service, addressed to that person at that person’s usual or last known address or, where the person has given an address for service, at the address so given;
(b) in any other case, by sending it by registered post or the recorded delivery service, addressed to that person at the person’s registered or principal office.".
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Paragraph 2(18) amends section 60 to reflect the fact that in the Bill the regulation which section 5 empowers Scottish Ministers to make must be approved by a resolution of the Scottish Parliament. |
(18) In section 60 (regulations), at the beginning insert
"Except insofar as specific provision is made to the contrary,".
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Paragraph 2(19) adds three new definitions to the legislation. |
(19) In section 61(1) (interpretation) at the appropriate places there are added–
""enactment" includes an enactment comprised in, or an instrument made under, an Act of the Scottish Parliament;"
""public notification" has the meaning given by section 55A of this Act;";
""woodlands" includes woodlands created by planned natural regeneration (as defined by section 50A(6) of this Act)".
(20) In Part 1 of Schedule 7, in the table, in the entry relating to The Crofters (Scotland) Act 1886, after the word "Crofters" there is inserted "Holdings".
(21) That Schedule is to be deemed always to have had effect subject to the amendment specified in sub-paragraph (20).
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Paragraph 3 introduces change to the Deer (Scotland) Act 1996 which enables a grazings committee to appoint a person to shoot deer marauding in enclosed areas of the common grazing. |
Deer (Scotland) Act 1996 (c.58)
3 In section 26 of the Deer (Scotland) Act 1996 (right of occupier in respect of deer causing serious damage to crops etc.)–
(a) in subsection (2), at the end there is added "and in relation to enclosed land which is part of a common grazing, the subsection also applies to a person who for the purposes of the subsection is duly authorised in writing by the grazings committee";
(b) in subsection (4), in each of sub-paragraphs (a) and (d), after the word "occupier" there is inserted ", or as the case may be the committee,".
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Schedule 3
This Schedule gives details of provisions of the Crofters (Scotland) Act 1993 and the Succession (Scotland) Act 1964 which will be repealed after this Bill has been enacted and brought into force.
The repeal in section 4 of the 1993 Act means that that the rental value of a holding is no longer relevant to Commission consideration of enlargements of crofts. The effect is that in future the Commission will not be able to agree to an enlargement of a croft where the effect of doing so would be to create a croft holding substantially in excess of 30 hectares.
The repeal in section 30(2) of the 1993 Act reflects the change to section 43 effected by paragraph 2(10) of Schedule 2.
The repeal of the proviso to section 41(2) of the 1993 Act is required because it is inconsistent with the provisions of new section 58A and new section 41(3).
The repeals to parts of section 42 of the 1993 Act reflect the fact that Treasury approval is no longer required.
The repeal of section 54 of the 1993 Act is consequential on the new section 2(4) which is inserted into the 1993 Act by section 2 of this draft Bill.
The repeals to parts of section 16 of the 1964 Act reflect the new provisions which this draft Bill inserts into section 17 of the 1993 Act. |
SCHEDULE 3
(introduced by section 42)
REPEALS |
Enactment |
Extent of repeal |
Crofters (Scotland) Act 1993(c.44) |
In section 4, in subsection (1)(b) the words "and the rent of the croft together with the rent under the said tenancy exceeds £100"; and in subsection (2)(b) the words "or capable of being let as a croft at an annual rent substantially in excess of £100".
In section 30(2), in paragraph (a) the words from "and" to the end; and in the second sentence the word "either" and the words from "or to" to "to him".
In section 41(2), the proviso.
In section 42, in subsection (1) the words "and with the approval of the Treasury"; and in subsections (4) and (5) the words "with the approval of the Treasury".
Section 54.
Section 59. |
Succession (Scotland) Act 1964 (c.41) |
In section 16(3)(b), sub-paragraph (ia); and in subparagraph (ib), the words "by the landlord to the legatee and the Crofter’s Commission". |
