Decrofting back on track

The Crofting (Amendment) (Scotland) Bill was introduced to the Scottish Parliament at the beginning of May 2013 by the Scottish Government. The purpose of the bill is to enable the Crofting Commission to consider decrofting applications from owner-occupier crofters.

As readers may be aware, processing of such applications has been on hold since February 2013, after it came to light that the Crofting Reform (Scotland) Act 2010 did not in fact empower the Crofting Commission to grant decrofting directions to owner-occupier crofters. At the time of writing, the bill has yet to receive Royal Assent, but this is expected over the summer and may have been given when this article is published. It is intended that the new Act will come into force on the day when Royal Assent is given.

Equal treatment

The effect of the amendment (new s 24A of the Crofters (Scotland) Act 1993) will be to enable the Crofting Commission to treat owner-occupier crofters and croft tenants equally with regard to decrofting applications. One of the underlying principles of the 2010 Act was to ensure that owner-occupier crofters and croft tenants are subject to similar obligations and enjoy similar rights. Section 24(3) of the 2010 Act currently provides that the Crofting Commission is able to consider decrofting applications in respect of “vacant” crofts only. Section 23(10) of the Crofters (Scotland) Act 1993, as amended by the 2010 Act, provides that an owner-occupied croft is not vacant. The combined effect of these two subsections is that owner-occupied crofts cannot be decrofted. Section 23 has been interpreted differently by Brian Inkster at Journal, March 2013, 34, but the prevailing view is that the amending legislation is necessary.

New s 24B provides that the Crofting Commission will not be under any obligation to consider a decrofting application by an owner-occupier crofter where the owner-occupier crofter has been issued with a direction requiring them to submit reletting proposals. An owner-occupier crofter may be issued with a reletting notice as a result of a breach of one of the statutory duties, namely to be ordinary resident on or within 32 kilometres of their croft, to cultivate the croft or put it to a purposeful use, and not to neglect or misuse the croft. This new section makes an interesting – and explicit – connection between the owner-occupier crofter’s rights (in this case to make a decrofting application) and the breach of the statutory duties.

Section 24B(3) provides that the croft in respect of which the decrofting application is being submitted must already be registered in the Crofting Register (which will become compulsory as from November 2013), or be registered within six months of the owner-occupier crofter submitting the decrofting application.

New s 24C provides that such decrofting applications by owner-occupier crofters will be processed in the same way that decrofting applications are processed under the current s 25 of the 1993 Act. There are two distinct types of decrofting applications (statutory house site applications and part/whole croft applications), and these are processed in different ways. Section 24C provides that owner-occupier crofters, like tenants, will be entitled to a direction in respect of the croft house site and garden ground.

The final part of the new section requires the owner-occupier crofter to make an application to the Crofting Register to register the croft. In terms of the new s 24D, a direction will lapse if an application for registration of the croft is not submitted within three months of the date of the direction.

Importantly, and unusually, the amended legislation will have retrospective effect back to 1 October 2011. Retrospective legislation is considered necessary on this occasion to ensure that all decrofting directions issued to owner-occupier crofters between 1 October 2011 and February 2013 are valid. Section 4 of the bill allows owner-occupier crofters who were issued with decrofting directions between 14 January 2013 and 25 February 2013 (the 42 day appeal period to the Scottish Land Court in respect of all Commission decisions) to appeal to the Scottish Land Court within the statutory appeal period from the date the amendment Act comes into force.

Legal fiction

The amending legislation illustrates that the precise status of an applicant in respect of a regulatory application to the Crofting Commission must be considered very carefully. As Derek Flyn has explained in a submission to the Scottish Government, prior to the passing of the Crofting Reform Act 1976 there would be no reason why a croft tenant would seek to decroft a croft. The introduction of the “right to buy” in 1976 created the legal fiction of the purchasing crofter as the landlord of a vacant croft.

This fiction continues even after the 2010 Act, and has important consequences in respect of regulatory applications. It continues in situations where a croft has been split into multiple ownerships. It is possible for a landlord of part of a vacant croft to split that part into further multiple ownerships without having to obtain the consent of the Crofting Commission, as it has continued to be possible for landlords of part of a vacant croft to make decrofting applications. There is also a distinction in the 2010 Act between owner-occupiers and owner-occupier crofters, but this is not the time or the place to explore that particular issue.

The 2010 Act has created greater parity between croft tenants and owner-occupier crofters. The amending legislation will continue that process. The anomalous position of landlords of a vacant croft and the definition of “owner-occupiers” as distinct from owner-occupier crofters have not been addressed, which will ensure that all crofters do not fit neatly into the statutory definitions of a croft tenant and an owner-occupier crofter.