Retired detective challenges Commission over absenteeism

2 September 2011

A retired Lothian and Borders detective living in Edinburgh who has spent more than thirty years commuting to the croft near Gairloch, which his father left to him in the early 70’s is appealing a decision by the Crofters Commission to terminate his tenancy and evict him from his family croft. Mr MacRae keeps a flock of sheep on the four acre croft at North Erradale, where he was born, and visits on a regular basis. However, the Crofters Commission have a duty to tackle absenteeism and this may be an important case in defining how the Commission deals with the issue. It is not disputed that Mr MacRae is not living on the croft. However, it has been reported in The Scotsman that he has said he actively works the croft, more so than many resident ‘crofters’ who he stated did no crofting at all. He works with his crofting neighbour to maintain his land, which has no house on it, and tend his flock.
The problem of absenteeism is a key concern for the Commission. The Shucksmith Report and subsequent Crofting Reform (Scotland) Act 2010 has increased pressure for the Commission to act in cases where a croft appears to be empty or neglected because the tenant or owner is absent. Legally, there is a requirement to live no more than 32km from the croft, with some exceptions being made for certain cases and permission should be sought if this requirement is not going to be met. Anyone living beyond these limits, without submitting reasons and gaining approval from the Commission for those reasons, is technically an absentee.
During the public consultation, there was strong opposition to a more draconian suggestion that there would be a residency requirement that meant the croft would have to be occupied for a certain number of days per year. However, the requirement to be near the croft in order to cultivate it has always been a feature of crofting law but one that has not always been enforced rigorously or equally across the crofting counties. It has been quite common for crofts and the buildings on them to be unoccupied, uncultivated and neglected for many years, sometimes even decades. The Commission now has to be seen to be tackling this issue. Crofts are now highly sought-after and new entrants are actively being encouraged.
This case is perhaps, unfortunately for Mr MacRae, a sign that the Commission is beginning to take very visible action and look to make a croft available for someone resident in the area. However, Mr MacRae was reported in The Scotsman as believing it would simply be developed for housing, which he did not want to see happening to his land. On the face of it, whilst Mr MacRae appears to be fulfilling the requirements to cultivate his land, the fact he is not living within the required distance appears to be the basis for the Commission to attempt to terminate his tenancy. In circumstances like this, consent could be applied for to be ‘absent’ and in circumstances where the croft is being cultivated and visited regularly by the tenant, it is difficult to see how the Commission would be unhappy with granting approval if there is convincing case for the application, particularly where there is a family tie with the land that goes back generations. Furthermore, in the case of an owner-occupier, a non-crofting ‘sub’ tenant could be put in place under a ‘short’ (maximum 10 years) lease that would satisfy the requirement for the croft to be worked and satisfy the residency requirement.

The outcome of the appeal by Mr MacRae will provide a pointer to the direction that the Commission intends to take and implement throughout the crofting counties.

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