Scottish Government

DRAFT CROFTING REFORM (SCOTLAND) BILL: Consultation Paper

3 OUTCOME OF CONSULTATION

General

3.1 There were 57 responses to the White Paper received during the consultation period ending 26 September 2002; 32 from organisations or agencies, 4 from grazings committees and 21 from individuals. Few of these responses commented on all the matters covered in the White Paper, most comments covering a selection of individual aspects of the White Paper proposals. There was general support for a revision of crofting law, with only one individual suggesting nothing whatever should be done at this point, and one other arguing that the whole system should be wound up.

The Crofters Commission in the 21st Century

3.2 There were 20 comments on the proposals to modernise the constitution of the Crofters Commission, 15 being wholly or generally supportive. Of the others, 2 called for the Commissioners to retain executive powers, 2 called for the Commission to be closed and 1 suggested winding up the crofting system. There was a view among some that the Commission should be more involved in SEERAD policy formation and work more closely with other agencies active in rural development.

Outcome: The draft Bill provides for the Crofters Commission to be reconstituted as a modern non-departmental public body with finance and personnel responsibilities. They will be empowered to make grant schemes subject to agreement of Scottish Ministers and they will be expected to co-operate with other public bodies in the Highlands and Islands for the benefit of rural and crofting communities.

3.3 Extension of Crofting Lands

Although not included in the White Paper as a specific issue the majority of comments received opposed the extension of crofting tenure to other areas of Scotland.

Outcome: The draft Bill does not provide for the extension of crofting tenure beyond the current geographical boundaries.

Creation of New Crofts

3.4 There was strong support expressed for the creation of new crofts, only 2 responses out of 27 opposing the principle. However, amongst the expressions of support for the creation of new crofts, there was no consensus about how this objective should be pursued. Only 9 responses fully supported the White Paper proposals to encourage landowners to create new crofts not allowing the new tenant or successor to exercise their right to purchase the croft house site at 15 times the annual rent. The majority of the remaining responses was to give the tenants of these crofts the same rights as existing crofters.

Outcome: The draft Bill will enable landowners to create new crofts from non-croft land with the tenants of these new crofts having the same rights as current crofters.

Enlargement of Crofts

3.5 There was little comment on the proposal that the rent of an enlargement of a croft should be a matter for the landlord and tenant to decide, subject to an approach to the Land Court after seven years.

Outcome: The draft Bill provides for the rent in respect of an enlargement of a croft to be determined as proposed.

Reorganisation of Crofts

3.6 This particular proposal in the White Paper addressed a procedure which has been rarely used in recent years. The proposal was to simplify procedures and reduce the time which a reorganisation must take, while continuing safeguards to ensure that all factors were taken into account and individuals heard. Of the 10 responses, 7 were supportive of the proposals in general.

3.7 There were several thoughtful suggestions which were carefully considered:

• whether unanimity of crofters should be a pre-requisite for a scheme
• whether landlord and tenants should be able to jointly request the Crofters Commission to draw up a scheme
• whether the landlord's interest was sufficiently acknowledged by the proposal
• whether Scottish Ministers' role remained necessary were the Land Court to serve as an appeal body against a Commission decision on a scheme.

Outcome: The draft Bill provides that crofters, landlords or both may request the Crofters Commission to prepare a reorganisation scheme and the support of a majority of the crofters concerned will continue to be required in order for such a scheme to be effected. The Land Court will hear appeals from both crofters and landlord against Crofters Commission decisions on schemes.

Exchange of Crofts

3.8 The White Paper proposed that, although the Act makes no formal mention of the practice of recasting by crofters with approval of their landlord, there were grounds for formalising this means of exchanging or ceding croft land among crofters. There was little response to this proposal.

Outcome: The draft Bill provides that any arrangements arrived at between crofters and their landlord for recasting of holdings shall require the approval of the Crofters Commission in order to have legal effect.

Refocusing Financial Assistance to Crofters

3.9 The proposal to widen the focus of financial assistance to assist wider principal use of croft land attracted 25 responses of which 16 were broadly supportive. Six responses were against any shift from support for agriculture, partly on cost grounds, while others were concerned about other issues, including the availability of support to those with a similar lifestyle to crofters.

Outcome: The draft Bill provides that the Crofters Commission may make grant schemes, subject to approval by Scottish Ministers. It will also permit support for non-agricultural developments and allow grant to continue to be available to both crofters and people of similar status.

Owner-Occupied Crofts

3.10 Of 20 responses, 12 were broadly in favour of the proposal to provide for term lets by owner-occupiers which would not allow the tenant a right to purchase. Concern was expressed by other respondents that absentee tenants would be able to purchase and let as owner-occupiers.

3.11 The period of term-letting attracted some discussion, mostly as the limited duration tenancies provided by the Agricultural Holdings (Scotland) Act 2003 allow for a minimum let of 15 years rather than the maximum of 10 years proposed in this draft Bill. The choice of 10 years in the context of crofting and crofting communities reflects the difference between a business arrangement and one which has community implications requiring a balance between stability and change.

Outcome: The draft Bill provides that owner-occupiers of crofts can let their crofts for periods of up to 10 years without the tenant having a right of purchase. Owner-occupiers living more than 16 kilometres from the croft will require approval of the Crofters Commission to such letting.

Modernising Conditions of Tenure

3.12 The great majority of the 23 responses to the proposal to allow wider principal use of croft land than agriculture alone were broadly in favour. There was concern among a minority of respondents that the best land should not be so developed as to become permanently unfit for agriculture.

3.13 The draft Bill will be valuable in enabling principal use by croft tenants which goes beyond agriculture, but the need for capital and construction for permanent development still implies that a tenant wishing to so develop would ordinarily need to purchase and perhaps consider whether to decroft the land concerned.

Outcome: The draft Bill will enable crofters to make wider use of their crofts, subject to Commission approval and a right of appeal to the Land Court.

Compensation for Wider Principal Use of Croft Land

3.14 There were no responses to the White Paper proposals for compensation arrangements where crofters leave crofts which have been put to wider principal use. These proposed arrangements are that compensation in respect of that wider use shall only be required of the landlord where that has originally been agreed by both himself and the crofter. Nor were there comments on the proposal that a croft tenancy should commence on any date agreed by the tenant and landlord.

Outcome: The draft Bill provides that compensation to a crofter for improvements required for, or arising out of principal use other than cultivation will only be payable by a landlord who has previously agreed that such compensation should be paid. It also provides that the tenancy of a croft may commence on any date agreed between landlord and tenant.

Ensuring Beneficial Use

3.15 There was strong support for the proposition in the White Paper that the Crofters Commission should have the role - where they believe it merited and the landlord does not object - of approaching the Land Court for action against a crofter who does not make beneficial use of his croft.

3.16 Responses highlighted how difficult it would be to arrive at a satisfactory definition of beneficial use. Paragraph 5 of Schedule 2 to the 1993 Act provides that the crofter should not take action which results in deterioration of the soil. This is imprecise and gives little guidance as to what deterioration may mean in practice. As a consequence this provision has proved to be difficult to enforce where a croft is misused or neglected even to the extent that it represents a nuisance to neighbouring crofters. One possibility might have been to amend Schedule 2 to introduce a requirement to observe the Rules of Good Husbandry which are currently binding on tenants of farms, other than where the land is used for recognised conservation schemes as provided for in the Agricultural Holdings (Scotland) Act 2003. See also paragraph 4.31.

Outcome: The draft Bill modifies the conditions of tenure to enable unacceptable neglect or misuse of croft land to be identified and resolved and revises the requirement that the croft should be kept in a fit state for cultivation with an indication of the measures likely to be required to achieve compliance. The Crofters Commission will be empowered to act in place of the landlord to enforce compliance with conditions of tenure provided the landlord does not object to the Commission doing so.

Is the approach taken in the draft Bill appropriate or should the rules of good husbandry be applied to crofts? In particular, are there cogent reasons why these rules should not apply to crofters as they do to tenant farmers?

Croft Purchase: Legal Costs

3.17 The proposal to relieve the landlord of all legal costs incurred when a tenant purchases his croft drew 4 responses in favour and 1 comment that the landlord should not then be able to drag out the process and so raise legal fees beyond a reasonable amount.

3.18 It is impossible to put a figure on what costs may be reasonable in all cases. The question of whether costs are reasonable in any particular instance should therefore remain a matter for the Land Court to determine where the crofter applies for permission to purchase his croft.

Outcome: The draft Bill provides that, where a crofter purchases her/
his croft, the crofter will pay an amount determined by the Land Court to meet the landlord's legal costs thus bringing the arrangements applicable to the purchase of a croft into line with those that already apply where the crofter is acquiring the site of the croft house.

Encouraging Crofter Forestry

3.19 There was strong support for the White Paper proposals that crofters' rights to the products of crofter forestry schemes should be clarified and that landlord's refusal of consent to plant trees should be subject to challenge by crofters to the Land Court. The Court would then determine whether consent had been unreasonably withheld.

3.20 The Scottish Rural Property and Business Association argued strongly that tree planting should continue to be subject to landlord consent with no mechanism for overriding a refusal of consent. There was also a suggestion that the legislation be clear that joint landlord/crofter forestry projects would be permitted.

3.21 A right to challenge a refusal of consent in the Land Court would bring crofters' rights on forestry applications in line with the provisions of the Agricultural Holdings (Scotland) Act 2003.

3.22 There appears to be no bar in current legislation to joint forestry projects involving crofters and their landlord, but introducing explicit permission would make this clearer and more easily enable those projects where desired.

Outcome: The draft Bill provides that crofters may challenge in the Land Court a refusal of consent by the landlord to a crofter forestry application with the possibility of that refusal being overturned by the Court if a reason for refusal is not given by the landlord or the refusal is found by the Court to be unreasonable. The draft Bill also makes clear that joint forestry projects involving landlord and crofter are permitted.

Wider Use of Common Grazing

3.23 Consultation responses welcomed the White Paper proposals for wider use of common grazing than is currently permitted by legislation. These proposals would enable crofters sharing in common grazing to use this land for purposes other than grazing of animals, peat-cutting and crofter forestry. An example of possible use would be enclosure of a portion of the land to allow growth of winter feed for collective use.

Outcome: The draft Bill provides for wider use and control of deer on enclosed land. Introduction of wider use would need consent of the majority of shareholders and the Crofters Commission. There would be a right of appeal to the Land Court by the owner and individual shareholders against a Commission decision. The duties of grazings committees are expanded to enable appropriate self-regulation of wider use.

Regulation of Common Grazing

3.24 Responses to the White Paper largely supported the proposal that the Crofters Commission take an important role in enforcing the observation of Common Grazing regulations by shareholders in those grazings.

Outcome: The draft Bill provides that the grazings committee, grazings constable where there is no committee, or the owner could approach the Crofters Commission where grazings regulations were breached by a shareholder. The Commission would then be able to require the shareholder to observe the regulations and make restitution for any damage resulting from the breach. Where the offence continued, the Commission would be empowered to apply to the Land Court to suspend or terminate all or part of the shareholding of the offending shareholder, in the latter case effectively removing that shareholder from the common grazing.

Apportionments of Common Grazing

3.25 Apportionments are currently permanent under the existing legislation. The White Paper proposed that apportionments should also be possible for limited periods and that those which had fallen into disuse should be returned to the common use of shareholders. The balance of responses was strongly in favour of these proposals. Concerns were raised over implications relating to compensation for improvements, the possibility that investment would be discouraged and the implications if an apportionment had been purchased.

3.26 The question of compensation for improvements does not arise either where an apportionment is granted for a limited period, as any expenditure on improvements would be incurred to meet the short-term need and would be expected to be written off at the end of the period of use. Where the apportionment is no longer used then any improvements made are clearly deemed to have been written off.

3.27 Where an apportionment is purchased by the crofter, it ceases to be tenanted and becomes property which he owns. In those circumstances, a possibility of returning the former apportionment to common grazing use would deter investment or use of the land as security.

Outcome: The draft Bill provides that apportionments may be granted by the Crofters Commission for finite periods and that the Commission may extend these periods. It also provides that the Commission may review the use of an apportionment at fixed intervals. Purchase by the crofter of an apportionment would end any possibility of the Commission returning that land to common grazing use.

Devolution of Decision-Making

3.28 The White Paper proposed that local crofting communities should be empowered, with the approval of crofters in the community and at the discretion of the Crofters Commission, to undertake crofting regulation in their community. Local bodies set up for this purpose should comprise both crofters and other members of the community in order to ensure that local interests were heard when decisions were taken.

3.29 There was little support for this proposal from crofters and others and comment to the effect that local regulation would divide crofting communities. There was deep concern expressed by some on the proposal that others beside crofters should have a voice in crofting regulatory decisions. It was therefore clear that there would be little or no take-up of the proposal and that its existence in statute would have potential to create the seeds of deep division within communities.

Outcome: The draft Bill makes no provision for delegation of Crofters Commission regulatory duties to crofting communities.

Area-based Policy

3.30 The White Paper proposed that the Crofters Commission should be specifically empowered to develop individual regulatory policies to meet the particular needs of specific areas. A requirement would be that each area for which regulatory policies were proposed would have an advisory panel of local crofters and, where appropriate, suitably qualified experts. The panel's role would be to comment and advise on policy needs and policies themselves.

3.31 Responses to these proposals were generally favourable. The considerable doubts expressed about appointment of local regulatory panels (see 3.29 above) suggested that additional safeguards should accompany the introduction of advisory panels.

Outcome: The draft Bill provides that, where the Crofters Commission decides that local regulatory policies are advisable, they must seek approval from Scottish Ministers for the constitution of a proposed advisory panel and the area which is to be the subject of local policies.

Simplifying the Controls

3.32 The White Paper proposed to reduce the extent of controls required by the current legislation and instead require that applications currently made on regulatory matters should be considered and determined by the Crofters Commission only:

• if they would change the land or form of tenure - such as decrofting of the whole or part of the croft, apportionment of common grazing, crofter forestry schemes;
• where there were either objections from interested parties or other good reasons for intervention.

3.33 There was majority support among responses for this proposal to streamline the processes of regulatory control.

Outcome: The draft Bill provides for the new regulatory approach proposed. The Crofters Commission will consider applications where there are objections from interested parties.

The Crofters Commission will intervene in applications to which there are no objections where:

• there are identifiable grounds for concern that the interests of the estate, or the local crofting community or the wider public interest may be jeopardised;
• the sustainable development of the local crofting community is in question;
• the Commission have reason to believe the information provided in the application is inadequate;
• there is one or more of a range of circumstances relevant to particular application types (details of these are given against each application type following this paragraph).

The following algorithm sets out the new processes of regulatory applications

Note: hearings on applications will be conducted by the Crofters Commission where requested by those with an interest, or where the Commission themselves believe that a hearing is required to obtain the information necessary to arrive at a sound decision.

Non-family Assignation

3.34 There was a modest and positive response to the proposals in the White Paper that the application process should be simplified. These responses included a suggestion that the Crofters Commission be given powers to control the amount of money changing hands when a tenant of a croft sells that tenancy to his successor.

3.35 The suggestion that there should be control over the price of croft assignations is not new. In the case of a croft with a house the price paid for the assignation of the tenancy will tend to reflect local house prices. Prices paid for bare land crofts will tend to reflect potential value for housing wherever there is a reasonable prospect of obtaining planning permission. These concerns about croft prices therefore tend to reflect more general concerns about affordability of housing in the Highlands and Islands. In addition, individual crofters are concerned at being expected to pay housing-related prices for tenancies of land which they want purely for agricultural purposes.

3.36 For a number of years, ending only recently, the Crofters Commission attempted to control prices paid for crofts on assignation and when they were re-let. This ceased for a number of reasons, including the ease with which these attempts to control prices could be circumvented by private transactions. It is therefore most unlikely that the prices of croft tenancies could be controlled without giving the Commission much more extensive powers to intrude into the financial affairs of individual crofters. More fundamentally it is not clear that such a policy would deliver any benefits unless the Commission are also given power to determine who should be granted a croft tenancy in each case.

Outcome: The draft Bill provides that applications to assign crofts to non-family members should succeed without a decision by the Crofters Commission in the following circumstances:

Where there are no objections from other crofters in the township, the landlord, or, where a share in the common grazing is involved, other shareholders in that common grazing; and

Where the application does not invoke Crofters Commission criteria for intervention as set out in the bold text immediately after paragraph 3.33 above or in one of the following particular circumstances:

• the proposed tenant lives more than 16 kilometres away from the croft;
• the proposed tenant already tenants or owns one or more crofts;
• there are reasonable grounds for believing the proposed tenant may not have the skills and experience to carry out his plans for the croft.
• the proposed tenant is the grazings clerk, a member of the grazings committee or a member of the landlord's family;
• the landlord is a company or trust rather than an individual, and the proposed tenant is a member or employee or related to a member or employee of that company or trust;
• there are reasonable grounds for concern over proposed uses for the croft.

Where the relevant criteria apply, the Commission will consider and determine whether the application should succeed.

Family Assignation

3.37 Responses to the White Paper proposals for family assignation were almost all in favour. Agreement that legislation give a closer definition of what comprises the crofter's family was accompanied by suggestions that the category of children should include stepchildren, adopted and partner's children. The proposal that the concept of "partner" be introduced in the definition of "family" brought a request that this be carefully defined.

Outcome: The definition of a crofter's family for assignation purposes is restricted by the draft Bill to:

• spouse, or where there is no spouse, a civil partner or an unmarried partner resident on the croft for at least two years prior to the assignation
• the crofter's siblings and their spouses
• siblings of the crofter's spouse
• parents of the crofter
• the crofter's children and their spouses
• the crofter's grandchildren and their spouses
• the crofter's uncles or aunts, nephews or nieces.

The definition of siblings, children and grandchildren includes adoptive, step and half-blood relations of the crofter. The definition of children includes children of the crofter's partner, subject to the same residency conditions as the partner.
The tenant will no longer be required to have the landlord's consent to assign to a family member, but the landlord will have a right to object to the Crofters Commission.

Where there are no objections the application will succeed without a decision by the Crofters Commission, unless the application invokes the criteria for the Commission's intervention (these are the same as set out in the bold text immediately after paragraphs 3.33 and 3.36). Where these criteria apply, the Commission will consider and determine whether the application should succeed.

Re-letting

3.38 There was a modest response to the proposals in the White Paper for simplified processes, of which the majority were in favour. One response suggested that a landlord should be able to separately re-let the croft house site and the croft land, but there is no bar to this under the current legislation and no change would therefore be required.

Outcome: The draft Bill provides that a re-letting application by a landlord shall succeed unless there are objections by crofters in the local crofting community, or, where there is a share in the common grazing, shareholders in that common grazing. Where there are objections, the Crofters Commission will consider the application and determine whether it should succeed.

Where there are no objections, but the criteria for intervention apply, the Crofters Commission shall determine whether the application will succeed. (These criteria are the same as set out in the bold text immediately after paragraphs 3.33 and 3.36.)

The right of a landlord to apply to Scottish Ministers for permission to re-let a croft where the Crofters Commission has refused the application will be replaced by a right to appeal to the Land Court against the Commission's decision (see paragraph 3.73 for Appeals provisions).

Where the croft is vacant and the landlord has not submitted proposals for re-letting, or his proposals have been refused, the Crofters Commission will continue to act in place of the landlord to effect a re-let. An appeal by interested parties may be made to the Land Court against the Commission's decision on a re-let at their own hand (see paragraphs 3.73 for Appeals provisions).

Subdivision

3.39 The White Paper proposed that sub-division applications should be treated as other simplified applications and that the landlord's permission should no longer be required. There was a modest response to this proposal and concern expressed that it would lead to fragmentation and loss of the best croft land available in crofting communities.

3.40 The safeguards against the fears expressed allow both objection to the Crofters Commission and a right of appeal to the Land Court against a decision by the Commission. The opportunity to enable further housing and businesses in crofting communities should therefore continue to be available to crofters.

Outcome: The draft Bill allows an application to divide a croft to succeed without the approval of the Crofters Commission where there are no objections and the criteria for intervention are not invoked. Where there are objections from the landlord, crofters in the local crofting community, shareholders in a common grazing where a share is involved in the application or any other relevant person with an interest, the Commission must consider the application and determine whether it should succeed.

The Crofters Commission will also consider the application where criteria for their intervention are invoked. These criteria are as set out in the bold text immediately after paragraph 3.33 and in the case of division of a croft are extended to include applications where the proposal is for more than one additional croft or there has been a previous proposal to divide the croft.

Where an application is successful, the draft Bill provides that the rents are a matter for agreement between the crofter and the landlord. Failure to agree may be resolved by application to the Land Court, the costs being borne by the crofter involved.

Succession

Value of Tenancy

3.41 The White Paper proposed that the value of a deceased crofter's tenancy be included in the estate to be set against debts. To give one example of the effect of this proposal, where public money had been paid to the crofter under the Crofters Building Grants and Loans Scheme, this would allow direct recovery from a crofter's intestate estate rather than continuing to require repayment by the landlord where the croft is subsequently declared vacant. Since the value of the croft may be subject to dispute the White Paper also proposed a mechanism whereby disputes over the value of the tenancy can be resolved by the Land Court. There was only one comment on this proposal, and that expressed concern about the effect on the heritable property of a croft tenant.

3.42 Croft tenancies possess real value, including the capital invested in permanent improvements. It would be unreasonable to continue to allow the accumulation of capital on a croft without that being subject to claims against the deceased's estate.

Outcome: The draft Bill provides that the value of a croft tenancy is to be set against claims on the deceased's estate and provides a mechanism for resolving disputes about value. In addition there is provision to allow the executor to recover certain costs and expenses from the legatee.

Family Definition

3.43 The White Paper proposed that the definition of the crofter's family for purposes of succession to the croft be that used for family assignation as set out in the bold text immediately after paragraph 3.37.

3.44 There were 14 responses either approving or not objecting to the principle of a narrower family definition, and 1 against.

Outcome: The draft Bill provides a definition of family member which will apply for the purposes of determining whether the landlord will have a right to object to the legatee.

Legatee and Value

3.45 The White Paper asked for comment on whether the legislation should specifically state that a person refusing the bequest of a croft tenancy also refused the value of the tenancy.

3.46 It seems likely that where a crofter leaves a person the tenancy of his croft in his will he intends that person to become the tenant. Had he wished the beneficiary to inherit the value rather than the tenancy itself he would have instructed that the tenancy be assigned to a third party, with the value going to the beneficiary. It had been suggested that the law should be clarified so as to make it clear that a beneficiary who refused the tenancy of a croft would not be entitled to demand the value of the croft tenancy instead. This would not mean that a beneficiary who accepts the bequest is permanently bound to the croft, as the new tenant that person would subsequently be able to assign the croft for value.

3.47 However, having now investigated this matter thoroughly, our view is that if the legatee refuses the tenancy that is a refusal of the bequest which then becomes null and void. As in the case where the Crofters Commission declares the bequest null and void we consider that section 10(5) of the 1993 Act then applies. That section provides that if a bequest becomes null and void the right to the croft is treated as intestate estate of the deceased crofter.

Outcome: There is no provision in the draft Bill to specify that a person refusing the bequest of a croft tenancy also refuses the value of that tenancy.

Bequests

3.48 The White Paper proposed that:

• The legatee should continue to be able to claim the bequest of the tenancy by advising the landlord.
• The periods of 2 and 4 months (where there is unavoidable cause for delay) currently allowed to the beneficiary to claim the bequest should be increased to 4 and 6 months.
• Approval of the Crofters Commission to bequests to non-family members should only be required where a member of the family of the deceased or the landlord objects, or the bequest invoked criteria for Commission intervention.
• Where a bequest of tenancy is accepted, the new crofter's tenancy should begin from the date of death of the deceased tenant.

3.49 There was modest, supportive comment on these proposals, including suggestions that the legatee should be permitted 6 months to claim the tenancy.

3.50 Following further consideration of the proposal that the crofter's family should have a right to object to the bequest of a croft tenancy it was concluded that this was not appropriate. It would provide the family of a crofter a means of challenging a bequest not available to other people in Scotland with a real risk that it would simply be misused as a mechanism for seeking to overturn decisions made by a deceased relative.

3.51 To allow a legatee 6 months to claim a tenancy without his having been prevented from doing so earlier would allow a considerable break in the process. While there is an argument that the current 2 months is too tight, a basic period of 6 months could imply that little importance is attached to crofts having tenants and being worked.

Outcome: The draft Bill provides with one exception for the proposals in the White Paper and repeated above at paragraph 3.48. In the case of criteria for intervention by the Crofters Commission in a bequest to a family or non-family member (these are as set out in the bold text immediately after paragraphs 3.33 and 3.36 above). The exception is that the draft Bill does not provide that an objection to a bequest by the family of the deceased will trigger Crofters Commission scrutiny of the bequest.

Intestacy

3.52 Responses to the proposals in the White Paper for new procedures for dealing with intestate succession to crofts were generally welcoming. These proposals were:

• The family should have 12 months to appoint an Executor, and be able to apply for an extension to that period.
• The Executor should have 12 months to advise the landlord of a tenant.
• The Executor should be empowered to assign the tenancy for value and if that is done the process applicable to family or non-family assignation will apply as appropriate.
• If the Executor fails to find a tenant, the Commission should offer the landlord an option of seeking to re-let.
• The Executor should be empowered during the executory to act in place of a tenant for administrative purposes and for the benefit of the deceased's estate.
• The landlord should have 4 months to achieve a re-let.
• If the landlord succeeds in re-letting the croft then when the re-let takes effect the landlord should then pay the value of permanent improvements to the Executor.
• If the landlord declines or fails to re-let, the Commission should be empowered to seek a tenant.
• The Commission should have 4 months to find a tenant and, if they decline or are unsuccessful, the landlord should then be able to require the Commission to declare the croft vacant and subsequently to request the Commission to decroft the croft. If the Commission agrees to decroft the croft, the landlord should then pay the value of permanent improvements to the Executor.
• The date of tenancy should commence from the date of decision in the case of objection or appeal, or, if there is neither of these, from the date following the last day for objection or appeal.
• As discussed at paragraph 3.41 above the landlord should no longer be responsible for ensuring that loans made to croft tenants by Scottish Ministers are repaid. The White Paper proposed that loans made to the deceased should be recovered from that person's estate.

3.53 The White Paper also proposed that where the croft tenant occupied a house on the croft there should be a presumption that the surviving spouse, or where there is no spouse, a partner living in the croft house at the time of the tenant's death should be treated as if there had been a bequest of the croft to that person. Coincidentally, it became clear later that the Executive would be introducing legislation to provide similar partners' rights in other areas of Scots law.

3.54 One response suggested that a child of the deceased crofter living on the croft should also be able to inherit as of right. Legal advice was that this would constitute a considerable diversion from the provisions on inheritance governing property in the Succession (Scotland) Act 1964.

Outcome: The draft Bill provides for the procedures described in paragraphs 3.52 above in cases of intestate succession and for a right of partners to inherit the croft.

The draft Bill also gives effect to the proposal discussed at paragraph 3.53 above by providing that prior rights under the Succession (Scotland) Act 1964, insofar as these apply to a croft, should be modified so that the spouse or partner should be entitled to the tenancy of the croft rather than only having a right to the croft house.

We have been advised that the Succession (Scotland) Act 1964 provides sufficiently wide powers to enable executors to act in place of the tenant.

Resumption

3.55 The White Paper proposed that it should be possible for the Land Court to order that land previously resumed from crofting tenure should be returned to crofting use where the purpose for which it was resumed had expired or where it had never been used for that purpose. It also proposed that the Crofters Commission be able to give evidence to the Land Court on all resumption applications and that the purposes for which resumption could be granted by the Court should include the interests of the local community. Most responses supported these proposals.

3.56 The White Paper also sought views on whether the legislation should provide that an application to the Land Court may be made to have land previously resumed returned to crofting tenure. This has potential application to energy developments when the developments do not proceed or when the land is later restored to its original condition but would have wider application.

3.57 One response suggested that where crofters and landowner were in agreement that resumption should be more easily approved. The Land Court employ a fast-track system whereby applications for resumption which have the written approval of crofters and landowner, and for which all legal papers are in order, are determined within 6 to 8 weeks of lodging and at reasonable cost. This seems sufficient to meet the need identified in the response.

3.58 A response to the White Paper proposals on decrofting is also relevant to resumption. In order to avoid discouraging investment, it is necessary to ensure that lenders do not believe there would be a risk of the resumed land returning to crofting use where there is a standard security over the land resumed. Accordingly, the draft Bill provides that resumed land may not be returned to crofting use in that circumstance.

Outcome: The draft Bill provides for changes as outlined at paragraphs 3.55, 3.56 and 3.58 above and the process of temporary resumption should facilitate a range of time limited developments such as mineral extraction where planning conditions require restoration of the land after completion. In addition, the draft Bill provides that on reversion of resumed common grazing land to crofting tenure, the Land Court will have power to increase grazing entitlement or alternative disposal of these entitlements as it thinks fit. It also provides that the Land Court should determine whether compensation should be repaid by the crofters to the landlord on reversion of land to crofting tenure and, if so, the amount to be repaid.

Decrofting

3.59 The White Paper proposed that decrofted land could be returned to crofting tenure where the Direction allowing the decrofting provided that this could occur if the land was not used for the purpose for which the Direction was given. The majority of responses supported this change, with the point on security of investment being made as described in 3.58 above.

3.60 The White Paper also proposed that all decrofting applications must cite a reasonable purpose for their application and that an application could be on the basis of public or local community interest. The majority of responses supported these proposals.

3.61 There was also support from the majority of responses to the proposal in the White Paper that where the tenancy of a crofter was terminated owing to absence from the croft, the period of 6 months in which the Crofters Commission should be able to seek a new tenant should be capable of extension by application to the Land Court. In that instance, the Commission would be liable to compensate the landlord of the croft for rent foregone.

3.62 While the White Paper proposed no change to the decrofting of whole and part crofts, it did suggest that the decrofting of house sites be treated as other simplified applications. Responses to the proposals on simplification were generally approving.

Outcome: The draft Bill provides the measures outlined in paragraphs 3.59 to 3.62 above. In decrofting applications for dwelling-house and garden ground, these will succeed where the Crofters Commission are satisfied that:

• the crofter has entitlement to conveyance of the land in question
• the extent of garden ground appears reasonable
• the proposed decrofting would not interfere with access to the remainder of the croft or other croft land.

Sub-letting

3.63 The White Paper proposed that an application to sub-let a croft or part of a croft should succeed without the approval of the Crofters Commission unless there were objections from other crofters in the township or the landlord, and shareholders in the common grazing where the application involved sub-letting a share. The sub-tenancy may be for a period of up to 10 years.

3.64 The modest response was equally divided between those agreeing the proposals and those against, though the latter were not unanimous on what they wished to see instead, some being in favour of the status quo and others recommending complete deregulation. A further comment was to permit sub-letting to communities as well as individuals.

3.65 A case for complete deregulation was put by professional people and landowners, but there is no indication that removal of all controls would be acceptable to crofters in general. There is no legal bar at present to sub-letting a croft to a community and therefore no need to act on that suggestion.

3.66 The current legislation does not afford a sub-tenant protection other than any terms which may have been included in the Missive of Let. Given that a sub-tenancy may be for an extended period and therefore involve investment in the croft, it seems right that this should be rectified. The draft Bill therefore provides that in order to terminate a sub-tenancy before its due date, a sub-tenant must be given at least 6 months' notice to quit by the croft tenant.

Outcome: The draft Bill provides that a crofter may sub-let his croft as discussed in paragraphs 3.63 and 3.66 above without the approval of the Crofters Commission unless there are objections by any of the parties mentioned in paragraph 3.63, or where the criteria for intervention by the Crofters Commission applied. These criteria are as set out in bold text immediately after paragraph 3.33 above and in the case of subletting also include:

• Where there are reasonable grounds for concern over the proposed use of the croft.
• Where the proposed subtenant lives more than 16 kilometres from the croft.

An Open Register of Crofts

3.67 There was considerable support for the White Paper proposal that the Register of Crofts should be open to the public.

Outcome: The draft Bill provides for public access to the Register of Crofts.

Charging for Access to the Register of Crofts

3.68 There was very little objection in responses to the proposal that public access to the Register should be subject to a charge, but there were suggestions that the Crofters Commission should be able to employ discretion whether to charge, e.g. where the information would be useful in combating spread of animal disease.

Outcome: The draft Bill provides that the Crofters Commission will have a discretionary power to levy charges and that the scale of these will be subject to approval by Scottish Ministers.

A Map-based Register of Crofts

3.69 There was good support for the concept of a map-based Register of Crofts, but less for the proposal in the White Paper that the production of plans of crofts should be the responsibility of the person first transferring the croft following the introduction of the legislation.

3.70 However, although alternatives such as use of IACS maps were proposed, it is unclear how many such maps would be acceptable or accurately show the whole extent of the croft, and it therefore remains likely that the production of maps will involve some expense for crofters and landowners.

3.71 One alternative proposed was that the provision of the map should be the responsibility of the Scottish Executive. Given that the real beneficiaries of this exercise would be crofters themselves, it does not seem reasonable to ask the taxpayer to bear this cost in addition to the other forms of financial support made available to crofters.

Outcome: The draft Bill provides for the production of maps of crofts at the expense of the person transferring the croft. The Crofters Commission is given powers to refuse to process applications until a map is provided.

Crofters Commission Review of Decision

3.72 There was a small response supporting the White Paper proposal that the Crofters Commission should be able to review a regulatory decision on request of interested parties and determine whether the decision should stand or be changed.

Outcome: The draft Bill does not provide that the Crofters Commission will review a regulatory decision. It is intended that this should happen but the necessary arrangements can be put in place by administrative means. The appeal provisions in the draft Bill require the Crofters Commission to provide the Land Court with a written statement as to the circumstances of an application which has been appealed and the reasons for its decision.

Rights of Appeal

3.73 There was a modest response in favour of the White Paper proposals for a right of appeal to the Land Court against regulatory decisions of the Crofters Commission. It was proposed that the right of appeal, unlike the right of objection to an application to the Crofters Commission or a request for an internal review of a Commission decision, be open only to those with a strong interest in the outcome of the application and only where a review of the decision has been held by the Crofters Commission.

Outcome: A right of appeal to the Land Court against decisions by the Crofters Commission is provided in the draft Bill. Those entitled to appeal to the Land Court are an applicant and any person with an interest in the application.