Report by Martin Minton of Inksters Solicitors

The magnificent surroundings of the Signet Library off Edinburgh’s Royal Mile, home to the Society of Writers to Her Majesty’s Signet, (more commonly known as the WS Society) was the venue for this year’s Crofting Law Conference.

Over eighty delegates from the legal profession, the Scottish Government and those who manage croft land gathered to hear a selection of speakers and discussion focused on the changes brought about by the Crofting Reform (Scotland) Act 2010.

Lord McGhie, Chairman of the Scottish Land Court and President of the Lands Tribunal for Scotland presided over the day and the first speaker, Jamie McGrigor MSP reminded delegates that it was the 125th Anniversary of the 1886 Act. Would the 2010 Act still be remembered in 125 years? As the Convener of the Scottish Parliament’s Cross Party Group on Crofting, his introduction pointed to the key concerns for the future of crofting in terms of striking the balance between encouraging new entrants, diversification and innovation, and protecting the best practice and traditions of the industry. A suggestion of new schemes to protect the most vulnerable areas was mooted, and a firm plea that crofters need to be able to protect their livelihood from outside interference and where they cannot, they must be compensated. Mention was also made of the rise of crofting produce as an identifiable brand in its own right; the Scottish Crofting Produce mark is already in use and gaining recognition and praise.

Mr McGrigor stressed that it was to lawyers that we must look to make the controversial Crofting Register work in the interests of crofters. He highlighted the key concern of the register – cost, and was the first of several to do so. Promises of a fee of around £130 were later in the day questioned, but even at that, as he pointed out, it is still perhaps too high a price – indeed, the cost of six to ten lambs. He also stated that the Scottish Government remains committed to consolidation of the Act, although there are no immediate proposals to do so.

Next, Iain Dewar from the Scottish Government, who has been involved with the implementation programme for the new Act, went through various elements of the legislation including the new register, which he stated would be ‘definitive’ and talked about the incentive for group registration by giving a discount for ten crofts or more registering at the same time. Also in his remit is the work going on around the Crofting Elections Project that most will be familiar with. He highlighted the increased powers of the new Crofting Commission, as it will become from April 2012.

Following this, John King from the Registers of Scotland went through the procedures of the Crofting Register. There is a hope that crofters will be actively involved in this and tenants will be able to apply direct to the register. As well as being compulsory registration triggered in certain circumstances, there will also be an option for voluntary registration in order to speed the mapping process, which was also highlighted by the next speaker Derek Flyn is his capacity as a board member for the Scottish Crofting Federation. He believes that community mapping is key to the success of the project, minimising disputes and offering opportunities for mediation and including community assets. This is already taking place in some communities and a pre-emptive approach will no doubt ease the pressure when the time comes for compulsory mapping. Over three-quarter of a million hectares of land in Scotland is under crofting tenure – 7% of land in Scotland – and it is clearly a huge undertaking to map all this land, so group participation is crucial. Lord McGhie stated he found it hugely encouraging that this informal process was taking place.

There was concern over the finality of the register – whilst there is a nine-month challenge period, it was pointed out by delegates that whilst there is a mechanism for rectification on the Land Register, no such mechanism appeared to exist in the Crofting Register, which is clearly problematic. Also highlighted as problematic is the scale of the Ordnance Survey maps being used in the process – 1:10000 may simply not be detailed enough. Whilst it was again stated that the Scottish Government have pledged £100,000 to assist in the process, the problem of cost was raised several times.

The afternoon session had a focus on renewable energy, with former MP Calum MacDonald demonstrating through the case study of the Beinn Ghrideag Wind Farm why a Crofters Renewables Act was so vital. With such large financial sums at stake, barriers need to be removed that prevent crofters from initiating a project where the landlord refuses; at present, the consent of the landlord must be gained. Eilidh Ross of Inksters set out the current legislative routes to realising a development, with a focus on the important Schemes for Development part of the Act, alongside decrofting or resuming croft land in order to realise a renewables project. Eilidh highlighted that from the 1st of October, the Scottish Land Court, or the Crofting Commission will consider a variety of factors when approving or refusing a scheme, including the effect on the crofting community, the surrounding landscape and any social and cultural benefits associated with crofting. When it comes to a scheme on a croft, it was considered whether wind generation would be considered a ‘purposeful use’ under the 2010 Act. Advocate Robert Sutherland discussed the diverse issues surrounding hydro schemes and the potential problems encountered via the case law.

The day was brought to a close with a round up of recent crofting related case law with advocate Neil MacDougall.

With some recurring concerns around the issue of the register and mapping project being a clear theme throughout the day, the conference will certainly have focussed the mind of those attending to ensure the best solution for crofters and land managers is put into action.