Crofting Law specialist Brian Inkster reports from Inverness on the Crofting Reform Bill and the potential consequences that these will have for crofters, whilst the pages are still hot from the presses.

For those interested in Crofting Law the wait for the much anticipated Crofting Reform (Scotland) Bill was over when it was introduced in the Scottish Parliament on 9 December and officially launched by Roseanna Cunningham in Inverness on 10 December.

During the consultation period on the proposed draft Bill the controversial proposal to introduce an occupancy requirement in respect of properties that had been taken out of crofting control was dropped. This proposal had been designed to address speculation on croft land. In its place it is now proposed that the powers of the Crofters Commission (to be renamed the Crofting Commission by the Bill) to reject decrofting applications and the Land Court to refuse resumption applications will be strengthened.

This overcomes the difficulty which arose from the Land Court’s ruling in Mr & Mrs John Inkster & Mr & Mrs Michael Inkster v Crofters Commission [SLC/168/04] (the applicants in that case not being connected in any way to me, other than sharing the same surname and being Shetlanders). In that case it was seen to be “not appropriate to use a control designed to protect crofting interests for the purpose of acting as a second planning authority”. As a result the Crofters Commission appear unable to refuse an application for a decrofting direction where planning consent has already been given. This in effect makes decrofting a foregone conclusion where planning permission has been granted.

The Bill, however, will allow the Crofting Commission to now reject an application to decroft where they consider it to be detrimental to the interests of crofting and the wider public benefits associated with crofting such as landscape and environmental benefits. There will be a clear right to reject decrofting applications notwithstanding the fact that planning permission has already been granted. This will make the purpose of the decrofting process much more meaningful.

One of the frustrations for people wishing to build houses on croft land is the time it takes to obtain decrofting after having obtained planning permission. Perhaps it would be a good idea to allow the two processes to run in tandem with the ability for the Crofting Commission to grant a provisional decrofting direction that is subject to planning permission actually being granted. There is no provision for this in the Bill as it currently stands.

The other provision in the Bill to address speculation on croft land is the increase in the clawback period, whereby the proceeds of a subsequent sale of decrofted land is shared 50:50 between the crofter and the previous landowner, from 5 years to 10 years. It will be interesting to see whether this results in an increase in the number of croft purchases by crofting tenants in the run up to the Bill being enacted.

Another potentially significant change in crofting legislation introduced by the Bill is the prevention of a landlord of a vacant croft (who will become officially known as an “owner-occupier” in terms of the Bill) from selling any part of such a croft without first dividing the croft with the consent of the Crofting Commission. If such consent is not obtained any sale would be null and void.
The proposals in the draft Bill to define owner-occupier crofters and provide clear duties on the requirement to be resident on, or within 16km, of the croft and to put the land to productive use remain largely unchanged.

In terms of the Bill, Owner-occupiers and tenants may be absent from their crofts with the permission of the Crofting Commision assuming there are valid reasons for absence. Owner-occupiers would be able to grant a “short lease” of 10 years or less with the consent of the Crofting Commission. A tenant under a short lease would not be a crofting tenant or an agricultural tenant.

Gone completely from the Bill is the proposal to provide crofters with the option of using their tenancy as security for a loan. The Policy Memorandum that accompanies the Bill states that “although the Committee of Scottish Clearing Bankers indicated that they were satisfied that the proposals provided a sufficient framework for lending, other responses to the consultation indicated that crofters would prefer to continue with current arrangements where they decroft a house site in order to access loan finance. As a result, this proposal has been dropped from the Bill.” I am unsure of the logic in this given that it perhaps contradicts the provisions that seek to prevent decrofting in respect of speculation of croft land.

Furthermore, it does not address the situation of young crofters wishing to raise finance to actually purchase a croft as opposed to “a house site” on a croft. What would have been the harm of leaving these provisions in the Bill and giving crofters the option of granting securities with or without decrofting?

The Bill as anticipated retains almost intact the provisions contained in the draft Bill in respect of the proposed Crofting Register to be maintained by Registers of Scotland. The estimated average cost of registration has been reduced from £250 to between £80 and £130.

In place of the proposed Area Committees of the Crofting Commission it is now proposed that members of the Commission are directly elected to ensure that it consists of a majority of crofters. In order to retain a link with the community, the Bill proposes to retain the assessors’ network.

The Bill is perhaps a watered down version of the draft that we first saw earlier this year. However, it does contain some potentially effective provisions to address speculation on croft land. It will be interesting to see how this develops during the passage of the Bill through the Scottish Parliament and what is ultimately enacted.