HM Insights

The crofting (amendment) (Scotland) bill

The Crofting (Amendment) (Scotland) Bill was introduced by the Scottish Government on 9 May 2013. It aims to address issues in the Crofters (Scotland) Act 1993 ("the 1993 Act") arising from amendments made by the Crofting Reform (Scotland) Act 2010 ("the 2010 Act") which have left tenant and owner-occupier crofters not being treated equally in terms of their ability to decroft land. The Bill's intention is therefore to amend the 1993 Act to resolve difficulties that owner-occupiers currently have when attempting to decroft land.

The Bill will allow owner-occupier crofters to apply to decroft the whole or part of their crofts and will allow the Crofting Commission ("the Commission") to give directions ("decrofting directions") on such applications.

A decrofting direction is a direction that a croft or part of a croft will cease to be a croft and that the 1993 Act will no longer apply to it. An owner-occupier crofter is a crofter who satisfies the conditions in section 19B of the 1993 Act which was inserted into the 1993 Act by the 2010 Act. A person is an owner-occupier crofter if:

  • the person is the owner of a croft;
  • before becoming the owner, the person was the tenant crofter who exercised the right to buy the croft, the nominee of such a crofter or an individual who purchased the croft from the landlord who created the croft (or a successor in title to any of these persons); and
  • the croft has not been let to any person as a tenant crofter since it was acquired from the landlord or constituted as a croft.

Background to the Bill

Before certain amendments to the 1993 Act made by the 2010 Act took effect, crofters who owned and worked their crofts were in law treated for the purposes of decrofting as landlords of vacant crofts and, as such, they could apply to decroft under section 24(3) of the 1993 Act. Where those crofters owned and actively worked the croft and there was no action required to address neglect of that croft, the Commission did not take action under section 23 of the 1993 Act (Vacant crofts) to let the croft to a tenant.

With effect from 1 October 2011, and for the purposes of the decrofting provisions in the 1993 Act, section 23(10) was amended by the 2010 Act to provide that a croft is not vacant if it is occupied by the owner-occupier crofter. This accordingly meant that there was no specific provision in the 1993 Act to allow those who were owner-occupier crofters in law to decroft.

In January 2013 the issue with decrofting by owner-occupier crofters was drawn to the attention of the Commission. The legal basis for the Commission to approve decrofting applications by owner-occupier crofters was questioned. The Commission sought legal advice which it received in February 2013. The advice was that there was a problem, and that there was no legal basis on which they could accept or determine decrofting applications from owner-occupier crofters.

On 25 February 2013 the Commission published a note to the effect that owner-occupier crofters could not apply to decroft, and the Commission could not give decrofting directions, unless the croft was vacant. Up to that point, the Commission had dealt with a number of applications to decroft by owner-occupier crofters and had given decrofting directions in 159 cases. In addition, 50 applications to decroft that had been made but not decided were put on hold when this problem was identified. The Bill will make retrospective provision in relation to the applications and decrofting directions made following them so that they are treated as having been validly made under the new provisions which are being inserted into the 1993 Act.

The Bill proposes to amend the 1993 Act to:

  • allow owner-occupier crofters to apply to the Commission to decroft the whole or part of their crofts, whether the croft is vacant or not;
  • allow the Commission to give decrofting directions on such applications;
  • allow the Commission not to consider a decrofting application if they have issued a direction to an owner-occupier crofter requiring them to submit proposals for letting the croft (where the Commission have determined that the owner-occupier crofter had breached one or more of their duties); and
  • enable the new legislation to be applied retrospectively to address issues arising from 1 October 2011 when the owner-occupier crofter status was introduced.

Appeals against certain decisions

The 1993 Act provides that appeals to the Scottish Land Court about a Commission's decision on a decrofting application can be made:

  • by the applicant where the Commission has refused an application; or
  • by the applicant or a member of the crofting community where the Commission has approved the application, either with or without conditions.

Appeals must be made to the Scottish Land Court within 42 days of the Commission's decision. As mentioned above, on 25 February 2013 the Commission published a note to the effect that owner-occupier crofters could not apply to decroft, and the Commission could not give decrofting directions, unless the croft was vacant. During the period 14 January 2013 and 25 February 2013 the Commission had given 21 decrofting directions and had refused one application to decroft. These 22 cases were still within the 42-day period when an appeal could have been made to the Scottish Land Court against the giving of a decrofting direction by the Commission or the decision by the Commission not to give a direction. Section 4 of the Bill allows someone who had not exercised their right of appeal in these cases the opportunity to do so. It would provide that in these cases that this 42-day period would be counted from the time when the provisions of the Bill are brought into force, rather than the date of the Commission's decision.

Crofting Register

Section 5 of the Bill will provide for owner-occupier crofter decrofting applications to "trigger" registration from 30 November 2013, thereby treating owner-occupier crofters the same as tenant crofters and landlords of vacant crofts in relation to the requirement to register. Until 30 November 2013, registration will be on a voluntary basis.

The Bill can be read here: