This 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]
The Consultation on the Future of Crofting Legislation received responses up until 20 November 2017. An analysis of the responses was published on 21 March 2018 and Fergus Ewing MSP, Cabinet Secretary for the Rural Economy and Connectivity with responsibility for crofting, outlined the Scottish Government’s plans for legislative reform to the Cross-Party Group on Crofting on 28 March 2018.