Monthly Archives: October 2013

The Crofting Law Sump

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Crofting Law Sump

The Crofting Law Group has announced details of its Crofting Law Sump. The purpose of ‘the Sump’ is to gather together details of the significant problem areas within existing crofting legislation.

During the recent passage through the Scottish Parliament of the Crofting (Amendment) (Scotland) Act 2013, MSPs were informed by practitioners who had been called to give evidence about the many problems  in the existing legislation that were causing difficulties for crofters, landlords and others.

Paul Wheelhouse MSP, Minister for Environment and Climate Change with responsibility for crofting, gave an undertaking that his officials would investigate, in consultation with stakeholders, what the best method might be for dealing with these outstanding issues.

The Sump has been set up to assist the Government in this process. It will be administered by Derek Flyn, retired crofting lawyer, and Keith Graham, formerly Principal Clerk of the Scottish Land Court. They will collate the issues and problems that are causing difficulties, prioritise them and indicate  how the problem can be resolved. Their Report will be made available to the Scottish Government on completion.

Brian Inkster, Hon. Secretary of the Crofting Law Group, said “this initiative will hopefully assist the Scottish Government in deciding what to do next with crofting law. It is a notoriously complex area of the law and with experts of the calibre and experience of Derek Flyn and Keith Graham the Report will be comprehensive, thorough and focussed.”

Submissions to the Crofting Law Sump will be taken up to the end of this year and should be sent by e-mail to sump@croftinglawgroup.org or can be tweeted to @croftinglawsump. Information concerning the Sump will be updated at www.croftinglawgroup.org.

Crofting Law Conference 2013 in Tweets

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Crofting Law Conference 2013 in the Signet Library, EdinburghThis year’s Crofting Law Conference organised by the Crofting Law Group in association with the WS Society took place at the Signet Library in Edinburgh on 27 September 2013. Martin Minton provided a report on the Crofting Law Conference for The Firm. I was tweeting throughout the Conference via @CroftingLaw and now reproduce my tweets here:-

Sir Crispin Agnew opens the annual Crofting Law Conference

Sir Crispin announcing ‘the sump’ to gather crofting law problems for consideration of Scottish Government [N.B. More details on this to follow in the next post on this blog]

Now @RobGibsonMSP giving the keynote address

There is a future for crofting and need to make legislation for it

.@RobGibsonMSP quoting @LesleyRiddoch

2007 Crofting Act seen as a quick fix

Layer upon layer of laws

RT @thehealthrebel: and the listing of many croft buildings making them expensive to maintain and/or purchase!

Codifying possibly the best way forward

Depopulation an issue in crofting communities

50% of homes in some crofting communities are holiday homes only used for part of year

Scottish crofting scene is fragile

Need for more local control in crofting

Benefit of Crofting Connections and Crofting Federation Training being mentioned

Out migration, particularly by women, is an issue

Convenor and Chair of Crofting Commission now women

Challenge is to adopt a can do approach

Q&A session with @RobGibsonMSP

Can we use legislation to encourage more female crofting tenants?

Very happy for Scottish Government to look at this

Clarification on codification v consolidation being sought

Codification may do something more fundamental for this generation

New start much more noteworthy than getting all the laws into one book

Can’t have joint tenancies of crofts – that would bring females in

Re-defining crofting law politically or legally?

Hope that there is a small farm ethos that can be encompassed in laws that are not so archaic

RT @RobGibsonMSP Made keynote speech WS crofting law conf. Simplify codify underpin future croft extension to all similar small land holders I argued today

Now Susan Walker Convenor of Crofting Commission on the Residency Duty (commonly referred to as Absenteeism)

1886 “Resides on the holding”

1955 “on, or within two miles of, the croft”

1961 increased to 10 miles

2010 Act now 32km

S40A notice – are crofters complying with residency duty? Should have been done by Commission by April. Still to do.

s49A Grazing Committee duty to report on residency

We now have microphones working – much clearer audio!

Difficult but not impossible to cultivate your croft if absent

9 of 10 people in 2,500 responses in @MarkShucksmith‘s Report wanted action on absenteeism

Only 2 letters in one geographical area complaining about absenteeism legislation. Many letters seeking action on absenteeism

1801 absentees with 582 of those for over 10 years

“Ordinarily resident” taken in the round about what a crofters entire duties are. Do they have “settled purpose”.

Wouldn’t take action where relative stays on the croft

Evidence of active use of the croft

Sublets for not more than two years to absentees unless for good reason

Ministerial direction in 2010 to take action for absentee cases over 10 years. Can take 18 to 24 months to process.

Stages: Review, Proposal to Terminate, Advertise proposal to terminate, Terminate tenancy.

RT @culcairn: should never be a 2 year process. Undermines confidence in act.

Advertising not in legislation but gets info from crofting community to help decision to inform

Can apply for consent to be absent

Fixed term work contract, education, hospital, no house (need to build) all reasons for need to be absent

RT @NeilKing11 Why was none of this covered in the CC Plan? tinyurl.com/p3hrxam

Complex flowchart now being shown of s26A-K process

Easier to understand pictorially than from legislation

Results: 300 crofts now have resident crofters. Either returning crofters or assignations.

35 terminations

August 2013 – 13,616 crofters with 13% being absentees

Commission understand emotional attachment and sense of duty that people have to their croft

Do I want to be a crofter, live on and work croft and be active in community and care enough about my croft to change my life

Want to create thriving crofting communities. When holes they don’t work so effectively

Residency easier to deal with than neglect #croftinglaw Is it not better to tackle neglect than absenteeism where no neglect?

Vast manpower would be required to deal with neglect

Breaking for tea/coffee

Sump Group Results now on crofting problems

Owner-occupiers who are not owner-occupier crofters who need consent of neighbours of original croft unit

Validity of Decrofting Directions issued pre Feb 2013 to owner-occupiers who are not owner-occupier crofters

Problems of Crofting Commission identifying owner-occupiers who are not owner-occupier crofters

Need for section 5(3) Agreements to apply to tenants and owner/occupiers and binding on successors and tenants

Landlords need to pay compensation on terminations made by Commission due to absentees. Large financial commitment

Assignation of croft on First Registration needs to be intimated by assignor to Commission within 3 months or invalid

Purchase of a croft by tenant does not trigger registration

Purchase of whole croft when sasine title. Need to be sure is whole croft or deed will be invalid.

s.17/18 feu ganted when tenancy given up. Now when decroft that is not an exemption from registration in crofting register

Access rights should be registered on crofting register

Status of grazings shares still not clear

Can we divide a grazing share from the croft?

Multiple owners – can we draw a line under the sand and take previous divisions as actual divisions?

Removal of “cultivate by hired labour”. Why?

If Land Court could propose changes to Scheme for Development that might be useful

What happens when you deviate from a Scheme for Development that has been granted?

Crofters duties: neglect a bigger problem than absenteeism

2010 Act difficult to understand

Evil happening in Skye re. termination of tenancies and Landlords extracting a premium on re-letting

Joint landlords can’t make application to divide a croft so must re-let part so they become owner-occupiers of new croft

Multiple owner-occupiers and duties. Do all need to comply or just 1. Commission say 1. If only 5% complying is that sufficient

Joint tenants? Worth exploring.

Validity of corporate entities in a crofting context

Advertising costs re. Crofting Register – could be £100 per advert x 2.

Need distinction between codification and consolidation but whatever #croftinglaw needs to be simplified

Confusion over role of Commission in planning process

Issues at Commission Hearing as to who has the right to be heard

Now lunch 🙂

Clean Slate debate next

Unfortunately @JimHunter22 was unable to make the clean slate debate so Sir Crispin Agnew running solo

85 year old crofter in Barra said 2 cow croft gives you milk for 12 months. 1 cow croft 6 months. Importance of soumings

Then fridges and supermarkets came along and soumings less important

Croft rents not kept up with open market rents for agricultural holdings

Landlords receive no financial benefits from crofts. No incentive to create more or invest in them.

RT @gemzmackenzie: @CroftingLaw might be worth writing a letter to FW summarising the key issues/pointers?

Crofts are getting smaller and smaller and less economic to be used

Obligation to maintain croft difficult for the elderly

No absentee problem in 1886

The crofting bubble. Many Acts and consultations over the years. No one looked at social needs and integrate.

Scrap the crofting Acts and start again.

Review of whole policies to see what should be applied in Scotland or different areas. Local needs vary – policies may need to.

Is starting from scratch codification?

If Government not brave enough still need a clean slate re. crofting Acts and policy objectives.

Abolish the difference between owner/occupiers (crofters/non-crofters) and tenants. Same conditions whoever is in occupation.

Stop resumption unless by CPO

Put all croft rents up to a proper market value

RT @crofterbecca “@CroftingLaw: Put all croft rents up to a proper market value #croftinglaw” Aye, that’ll make crofting more financially attractive…

Incoherence of policy objectives the root of legislative problems

Ministers arrived in middle of this. Lawyers are major advisers. Simpler ways to deliver policy intentions necessary.

Economics and Social situations changed but still applying laws from 1886

RT @AngusMacNeilMP as tenancies did for landowning in 1886 we need a grazing right over tenancy but still leaving tenancies widespread wi folk

Crofting Register: Where are we now? with Martin Corbett of registers of Scotland

Transparency of extent of land #croftinglaw But not grazings shares?!

9 month challenge period

Online register and free of charge to access with no need to sign up to do so

First croft registration being discussed #croftinglaw Covered by us at ow.ly/pgZog

12 evening events on Crofting register being run from Barra to Shetland by Registers of Scotland + attending Highland Shows.

Badralloch Community Mapping underway

Compulsory Registrations from 30 November 2013 on trigger events happening

Suggest if first Registration in Land Register also do Crofting Register application at same time.

Land Registration (Scotland) Act 2012 gets rid of overriding interests other than 3 types. Crofting will no longer be noted.

Crofting Register: ros.gov.uk/croftingregist…

David Barnes – Can’t rush into new crofting legislation. Welcome collective approach of gathering problems together (‘the sump’)

28 national governments and 700 MEPs put together CAP Reform

New Basic Payment Scheme replaces SFP

Move from historic to area based payments – but can phase in (internal convergence)

Can split Scotland into different payment areas

Small Farmer Scheme = simplified option. One off application at beginning and lump sum every year without fresh applications

Crofters can claim new basic payment on in-bye land and common grazing

Common grazing claim can be individual or via grazing management committee

crofters can claim greening payment

Crofters can claim other payments where appropriate

Small Farming Scheme may not be run in Scotland – still under consideration

Now Charlotte Coutts Advocate gives us a case law update

Resumption. Deer larder and hard standing for estate vehicles = reasonable

Resumption for ponies allowed

Land once resumed is outside the jurisdiction of the Land Court

Cameron v Nevis Estates: conditions of purchase could not be varied to those originally imposed by Court. One bite at cherry

No opportunity afforded by Commission to comment on other sides comments. Breach of natural justice.

Recent case on whether part of a holding = croft. Needs to fall within definition in statute.

Shetland croft boundary case being discussed. Interesting social history of case. #croftinglaw Yes… 101 productions!

Court placed boundaries where in all the circumstances they considered them to be.

Pairc Crofters case: Protection afforded to landowners. Human rights referred to.

Conference closes

Brian Inkster

[Photo Credit: © BBC Alba]

Common Grazings and the Lewis Gathering

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Crofting Federation GatheringI was in Stornoway, Isle of Lewis, on 19 and 20 September 2013 for the Scottish Crofting Federation’s annual Gathering. The theme of this year’s crofting conference was Common Grazings: Utilising Potential.

The conference was ably chaired by Derek Flyn and well organised by Patrick Krause and his staff from the Federation. A good and diverse range of speakers made for a very interesting and enjoyable conference. I am not, in this review, going to cover all the talks that were given but will focus on those that had a crofting law aspect as this is, after all, a crofting law blog.

Paul Wheelhouse MSP, Minister for Environment and Climate Change, should have been the keynote speaker but parliamentary business detained him in Edinburgh and his place was taken by David Barnes, Deputy Director of Agriculture and Rural Development.

David told us that the Crofting Commission has a focused not diminished role. Some, I would suggest, might argue with a focus in the wrong places!

Over 80 new crofts have been created in the last 5 years. Mention was made of crofters being allowed to be absent with good cause. My experience does not bear this out. But then my view of good cause may be quite different from that held by the Crofting Commission.

The Scottish Government were disappointed by the number of voluntary registrations on the Crofting Register. Not that surprising. Apart from a token discount for community registrations there was no real incentive to do it voluntarily.

Crofting Federation Gathering (Fair Isle Bunting)

David Barnes referred to the “specific and acute problem” with the 2010 Act that created a flaw in decrofting procedures and resulted in the 2013 Act to remedy that. The Scottish Government were very aware indeed that this is far from being the only issue with crofting legislation. They will be carrying out a consultation later this year. They need to take their time. Owner-occupiers who are not owner-occupier crofters and cannot decroft without the consent of neighbouring landowners may take a different view about the need to take any more time over that particular issue.

On the question of what form legislative reform might take David Barnes asked: “Do we look for where holes are and put patches on them or do we have a root and branch rewrite?” This question is one that is likely to tax MSPs in the coming months (or years perhaps depending on how much time will actually be taken over it).

My own view is that there are pressing issues that need be dealt with sooner rather than later and others where time can be taken. We may need at least two Bills: one within the next year (patching holes) and a more comprehensive one (possibly a rewrite) to follow in the fullness of time.

Julia Aglionby from the Foundation for Common Land told us of some of the differences between Scotland and England & Wales. In England & Wales a shareholder is a commoner. In England & Wales all renewable payments go to the landowners and none to the commoners. Compare crofting shareholders in Scotland who receive 50% of those payments. Less than 5% of common grazings in Scotland are signed up to schemes to assist them. In England more than 80%. Why? We didn’t get any clear answers.

John King of Registers of Scotland gave an update on the Crofting Register. There are 300,000 transactions that pass through Registers of Scotland each year before the new Register of Crofts is counted in. Professor Shucksmith recommended a map based Crofting Register and that is what we now have. The Crofting Register is free to view online. 29 common grazings have been registered on the Crofting Register to date. This is much better than I ever expected by this early stage. 9 crofts have been registered to date. Most with plans produced by crofters themselves. Registers of Scotland can help by providing crofters with OS maps to plot their croft on. Derek Flyn referred to Registers of Scotland having been user friendly with the Crofting Register.

Alister Danter of Business Gateway discussed management structures for crofting communities and mentioned the possibility of crowdfunding.

Iain Maciver from Community Land Scotland told us that freehold land is often favoured over common grazings for development because of crofting issues that arise. Soumings are now relevant more than they were in the past when renewable developments take place on common grazings.

Whilst we were in Stornoway Town Hall other crofting activities were taking place around Lewis for the school children participating in Crofting Connections. The children also sat in on some of the sessions in the Town Hall.

I enjoyed the Gathering and am already looking forward to next year’s one.

Brian Inkster