Crofting Consultation 2024 – proposals on common grazings, and strengthening residency and land use

Committees have a duty to report to the Crofting Commission (the 'Commission') on the condition of the common grazings and on every croft. The first proposal is to limit the reporting requirements to matters relating to the common grazings.

Meetings for election of committee members, and public meetings of shareholders, require public notification in a newspaper. Other shareholder meetings have to be notified by registered post. Going forward, it is proposed that public notification could take place on the Commission's website (or elsewhere as specified by the Commission), with email used as an alternative to postal notification.

When a croft is purchased by the croft tenant, the grazings share is not automatically included and often becomes a separate tenanted 'deemed croft' as a result. New legislation may provide that grazings shares will remain associated with crofts unless specifically excluded.

Although crofters' duties apply to grazings shares, the Commission has only pursued regulation of duties on inbye crofts. It is suggested that in future, the duties will be enforced in relation to standalone (i.e. separated) shares to ensure productive use of the land. Such shares which are not used will be lost and re-let by the grazings committee, landlord or Commission (in that order). If a share cannot be relet, it will be dissolved and absorbed by the remaining shareholders.

Existing provisions for forestry could be extended to include schemes for peatland restoration, biodiversity activities, carbon sequestration, habitat restoration or environmental improvements. Further, it is proposed that approved forestry and environmental initiatives will no longer be prohibited from covering an entire common grazings; and that landowners who do not respond to crofter/committee led schemes within the required timescale, will be deemed to have consented to (rather than refused) an application. The landowner could still object when the proposal is then considered by the Commission, but the application may be approved regardless, without involvement of the Land Court.

On inbye croft land, a tenant crofter can ask the Commission for approval of use of their croft for innovative purposes if their landlord refuses consent, but if a landlord refuses consent to a proposed use of common grazings, this can only be challenged by appeal to the Land Court. It is suggested that a refusal of consent by a grazings owner could be similarly overturned by the Commission (with onward appeal to the Land Court).

Land adjacent to a croft cannot be designated as new common grazings land under existing law (since such land would be subject to a right to buy if subsequently apportioned by the neighbouring crofter). The Consultation suggests that this exclusion is unnecessary and can be removed because a landowner can protect against the right to buy, if desired, contractually.

The Commission is responsible for investigating and enforcing compliance with the duties, and the current process is lengthy with several months often passing before any progress is made. It is proposed that a rigorous process can take place in less time by beginning with a letter noting the suspected breach, asking the crofter whether they agree and requesting a resolution/undertaking (rather than having the resolution/undertaking form an additional step). It is anticipated this change would shorten the process by almost 3 months.

In the interests of modernisation, the duties - and the statutory conditions of a croft tenancy - may be updated/simplified by making the following changes:

• providing that a crofter must ensure their croft is used and maintained, without requiring them to attend to this personally (reflecting the reality in many cases, where crofters have informal arrangements with relatives and neighbours etc); and
• expanding the list of uses for which a tenant crofter does not require landlord consent, to include any activity that is environmentally beneficial.

Crofting law requires that a tenant crofter is a 'natural person' (i.e. a human being), but there is currently no such control in relation to 'owner-occupier' crofters, with some owner-occupied crofts held by companies and trusts. This causes confusion when considering the duties, particularly the residency duty. The Consultation therefore proposes that if a non-natural person acquires ownership of a croft, it will have to be let to a tenant crofter. This change would not apply retrospectively.

The Crofting Census is sent out to every crofter annually to gather information in connection with maintaining the Commission's records and identifying breaches of duty. Many crofters find the process frustrating, and processing the information is an onerous use of the Commission's resources. Going forward, the Census could be issued at least once every 3 years, with the Commission deciding on timing/frequency.

Crofts can be sublet with the Commission's approval, affording crofters deemed compliance with the residency and land use duties if they are unable to comply themselves for a certain period. However, if an approved subtenant does not actually comply with the duties, the Commission does not currently have power to terminate the tenancy. In these circumstances, it is proposed that the Commission should be able to withdraw consent for the sublet.