Views on Crofting Reform (Scotland) Bill

3 February 2010

Brian Inkster has submitted his views on the Crofting Reform (Scotland) Bill to the Scottish Parliament's Rural Affairs and Environment Committee.

The Bill was introduced in the Scottish Parliament on 9 December 2009 and officially launched by Roseanna Cunningham in Inverness on 10 December 2009. Brian Inkster carried out one of the first analysis of the Crofting Reform (Scotland) Bill on 10 December 2009 and reported on the Future of Crofting Conference which took place in Stornoway on 26 January 2010.

Now that he has scrutinised the sections of the Bill and provided very detailed comments thereon to the Scottish Parliament, Brian summarises the main points arising for Inksters' News:-

There are quite a number of matters that I think the Scottish Parliament should be looking at and seeking to address before the Bill is enacted.

The provisions that trigger registration in the  new Crofting Register on a transfer of title could make the sale of a large crofting estate a prohibitavely expensive proposition and one that will be very drawn out and neither attractive to the seller or the purchaser. If there were say 100 crofts on the estate then the estate owner and/or the purchaser would have to map all of these and ensure registration with no obligation to consult with the crofters who are most likely to know the actual boundaries involved! Likewise, these provisions would apply even if the crofting estate was being transferred at no consideration, perhaps on the transfer to a family member or to a beneficiary following a death.

Indeed I wonder whether registration in the Crofting Register should ever be effected by a transaction that does not directly involve a crofter.

It is rather odd that if an entire croft is being resumed this triggers a requirement to create a register entry in the Crofting Register for land that will no longer be a croft and therefore no longer be on the Register!

Obvious trigger points that should result in registration in the Crofting Register but are not specified in the Bill, as yet, as doing so are Apportionment and Subletting.

'Deemed crofts' (which would include Apportionments) should be registered in the Crofting Register.

I suggested, as an alternative to registration upon a transaction taking place, that  the Scottish Parliament could set out to achieve a full, complete and authoritative Crofting Register within say 5 years (maybe 10 years) with a system of compulsory registration based on returns to be submitted by each party holding a crofting interest.

Following a first registration of a croft in the Crofting Register subsequent registrations could be simplified to make it an integral part of any application for consent made to the Crofting Commission (the new name to be given to the Crofters Commission).

Cross referencing between the new Crofting Register and the existing Land Register would make sense.

In this electronic age should notices that require to be advertised in the local press and displayed  on the croft also/instead be published by Registers of Scotland and/or the Crofting Commission via the internet?

Is the requirement for a crofter to be ordinarily resident on, or within 16km of, their croft relevant in today’s world? At the Future of Crofting Conference Drew Ratter (Convener of the Crofters Commission) referred to this as “a horse and cart distance”. Murdo MacLennan (Area Commissioner of the Crofters Commission for the Western Isles) told the Conference that he personally travels 105 miles to work a croft in Harris. Patrick Krause (Chief Executive of the Scottish Crofting Federation) thought that 16km was completely outdated: It should be how far someone could reasonably be expected to commute to and from their place of work in a day. Perhaps 30 to 50 miles he wondered. I share these views.

Consideration needs to be given to the ability of the Crofting Commission to deal with subtenants and tenants of short leases (a new type of lease that can be granted by owner-occupiers with the consent of the Commission) who neglect the crofts that they are tenanting. I do not think that the provisions as currently drafted are adequate in this respect.

I have pointed out yet again that it is pointless extending the ‘clawback’ period from 5 years to 10 years whilst not dealing with the anomaly created by the decision in Whitbread -v- Macdonald 1992 SLT 1144. I covered this in some detail in my report for The Firm: Is the Future of Crofting Law Bright?

The Decrofting process could be streamlined with the Planning process to reduce the time it takes to obtain a Decrofting Direction following the Grant of Planning Permission.

Consolidation of the Crofting Acts should take place as part of the current legislative process and not at some later date after the Bill is enacted.

The anomoly created by the decision in Bowman -v- Guthrie 1997 SLCR 40 should be cured so that Apportionments can be purchased at a later date from the purchase of a croft.

If land has been developed for 20 years or more and not used for crofting purposes it should cease to be subject to crofting tenure.

A holding that has not been registered in the Register of Crofts by a specified date should not be capable of being a croft.

Finally, the proposal that was contained in the Draft Bill to provide crofters with the option of using their tenancy as security for a loan should, I consider, be re-instated.

It will be interesting to see whether the Scottish Parliament adopts any of my views as the Bill continues its passage at Holyrood. I will keep you posted on this.

You can download a copy of Brian Inkster's full submission to the Scottish Parliament's Rural Affairs and Environment Committee: Views on Crofting Reform (Scotland) Bill - 3 February 2010 (PDF - 117KB)