Office of Public Sector Information
After section 3 of the 1993 Act, there is inserted—
(1) The Commission shall have power, on the application of the owner of any land situated—
(a) in the crofting counties; or
(b) in an area outwith the crofting counties which is, by order made by statutory instrument, designated for the purposes of this paragraph by the Scottish Ministers,
to constitute the land as a croft by entering it as such, in accordance with section 41 of this Act, in the Register of Crofts; but no such entry shall be made until the period mentioned in section 52A(2) of this Act has elapsed without any appeal to the Land Court being made or until any such appeal timeously made is decided or abandoned.
(2) The Commission shall have power—
(a) on the application of the tenant of any holding situated as is mentioned in subsection (1)(b) above; and
(b) provided that subsection (3) below is complied with and that the conditions set out in subsection (12) below are met,
to constitute the holding as a croft by entering it as such, in accordance with section 41 of this Act, in that register; and on the holding being so constituted the tenant shall be entitled to be registered, in accordance with section 41(2)(b) of this Act, as its tenant.
(3) Any application under subsection (2) above must be accompanied by a certificate of the Land Court to the effect that the Court is satisfied that, as at the date of the certificate—
(a) the tenancy of the holding is one to which—
(i) section 32 of the Small Landholders (Scotland) Act 1911 (c. 49) applies; or
(ii) any of the provisions of the Small Landholders (Scotland) Acts 1886 to 1931 applies; and
(b) no part of the holding is leased other than as a tenancy mentioned in paragraph (a) above.
(4) No such entry as is mentioned in subsection (2) above shall be made under that subsection—
(a) until the period mentioned in section 52A(2) of this Act has elapsed without any appeal to the Land Court being made or until any such appeal timeously made is decided or abandoned; and
(b) unless the Commission are satisfied—
(i) that agreement has been reached between the applicant and the owner of the land as to an amount to be paid by the applicant to the owner in compensation for the holding being so constituted and that the amount has been duly paid;
(ii) that the applicant and owner have agreed that no amount in compensation is to be so payable; or
(iii) that any such amount found, by virtue of section 3B of this Act, to be so payable has been duly paid.
(5) The Commission shall, on receipt of an application under subsection (1) or (2) above, give public notification of it.
(6) Notification under subsection (5) above shall specify a period within which comments as regards the application, being comments of the description given in subsection (10) below, may be made.
(7) After the period mentioned in subsection (6) above has elapsed the Commission shall—
(a) determine whether to exercise their power under subsection (1) or as the case may be (2) above; and
(b) give public notification of that determination.
(8) In so determining, the Commission shall have regard to—
(a) such comments, if any, as are duly made by virtue of subsection (6) above;
(b) the public interest and as the case may be the interests of the crofting community in the locality of the land; and
(c) whether social or economic benefits might be expected as a consequence of so constituting it.
(9) No application is to be made under subsection (1) above in respect of an agricultural holding occupied by a tenant where—
(a) the tenancy is—
(i) a 1991 Act tenancy (within the meaning of the Agricultural Holdings (Scotland) Act 2003 (asp 11)); or
(ii) a short limited duration tenancy or limited duration tenancy (within the meaning of that Act); or
(b) it is competent for the tenant to make an application under subsection (2) above,
if the written agreement of the tenant has not been obtained; and on such a holding being constituted as a croft under subsection (1) above the tenant shall be entitled (unless not a natural person) to be registered, in accordance with section 41(2)(b) of this Act, as its tenant.
(10) The description is that the comments are made in writing or in another form which, by reason of its having some permanency, is capable of being used for subsequent reference (as, for example, a recording made on audio or video tape).
(11) For the purposes of subsection (10) above (and without prejudice to the generality of that subsection), comments are to be treated as made in writing where they are—
(a) transmitted by electronic means;
(b) received in legible form; and
(c) capable of being used for subsequent reference.
(12) The conditions are—
(a) that the holding is not comprised within a larger agricultural unit, the holding and that larger unit being, or having been, worked, managed or let as a single unit;
(b) that the tenant is a natural person; and
(c) that such fixed equipment on the holding as is necessary to enable the tenant to cultivate the croft is not provided by the landlord.
(13) An order under subsection (1)(b) above is not made unless a draft of the statutory instrument containing the order has been—
(a) laid before; and
(b) approved by a resolution of,
the Scottish Parliament.
(1) Where, in relation to an application under subsection (2) of section 3A of this Act, there is no such agreement as is mentioned in subsection (4)(b)(i) or (ii) of that section, the compensation payable by the applicant to the owner in compensation for the holding being constituted as a croft is to be the difference between—
(a) the value of the holding assuming that it is not to be so constituted; and
(b) its value assuming that it is so constituted,
and is to be assessed by a valuer appointed by the applicant and the owner.
(2) But where the applicant and the owner are unable to agree as to such an appointment the valuer is to be appointed by the Land Court or by a person nominated by the Court.
(3) The valuer is to assess the value of the holding—
(a) as at the date of the relevant application under section 3A(2);
(b) having regard to the value that would be likely to be agreed between a reasonable buyer and seller of such a holding assuming—
(i) that the buyer and seller are, as respects the transaction, willing; and
(ii) that the buyer is a sitting tenant;
(c) taking account, in so far as a buyer and a seller of the holding would do so, of any factor attributable to the known existence of a person who (not being the applicant) would be willing to buy the holding at a price higher than other persons because of a characteristic of the holding which relates peculiarly to that person’s interest in buying it; and
(d) taking account of the terms and conditions of any lease of sporting interests affecting the land.
(4) The valuer is to invite the owner and the applicant to make written representations about the valuation of the holding under this section and is to have regard to any such representation.
(5) The valuer may—
(a) enter onto land; and
(b) make any reasonable request of the owner or the applicant,
for the purpose of any assessment under this section.
(6) The valuer must, within 6 weeks after being appointed, send to the owner and the applicant a notice in writing specifying the compensation payable and setting out how its amount was calculated.
(7) The expenses of the valuer accrued in carrying out his functions under this section are to be met by the applicant.
(8) In this section “valuer” includes two valuers with an oversman.
(1) The owner or the applicant may appeal to the Lands Tribunal for Scotland against an assessment carried out under section 3B.
(2) An appeal under this section—
(a) shall state the grounds on which it is made; and
(b) shall not be lodged more than 21 days after the date of the notice under section 3B(6) of this Act.
(3) In an appeal under this section, the tribunal may reassess any value (and any factor affecting any value).
(4) The valuer may be a witness in the appeal proceedings.
(5) And in those proceedings, in addition to the owner and the applicant, any creditor in a standard security over the land or any part of it is entitled to be heard.
(6) The tribunal is to give reasons for its decision on an appeal under this section and is to issue a written statement of those reasons.
(7) The decision of the tribunal in an appeal under this section is final.”.
(1) In section 5 of the 1993 Act (the statutory conditions)—
(a) after subsection (1) there is inserted—
“(1A) If the landlord considers that the crofter is failing to comply with the condition set out in paragraph 3A of that Schedule he may serve notice to that effect on the crofter.”;
(b) after subsection (2) there is inserted—
“(2A) But where the crofter, for the purpose of conserving—
(a) the natural beauty of the locality of the croft; or
(b) the flora and fauna of that locality,
engages in, or refrains from, an activity, his so engaging or refraining is not to be treated as a breach of any of the statutory conditions as respects the croft.
(2B) If, immediately before the coming into force of section 7 of the Crofting Reform etc. Act 2007 (asp 7), the croft was being used for a subsidiary or auxiliary occupation by virtue of the right conferred by paragraph 3 of Schedule 2 to this Act (as that paragraph then applied), any continuation of use for that occupation is not to be treated as a breach of the statutory conditions as respects the croft.”; and
(c) for subsection (3) there is substituted—
“(3) Any contract or agreement made by a crofter by virtue of which he is deprived of any right conferred on him by—
(a) a provision of this Act not mentioned in paragraph (b) below, shall to that extent be void unless the contract or agreement is approved by the Land Court;
(b) any of sections 8, 12 to 19, 21 and 37 of this Act, may be intimated to the Commission by a party to the agreement (the intimation being in such form as the Commission may specify and there being provided to the Commission, along with the intimation, a copy of the contract or agreement).
(4) On giving approval under subsection (3)(a) above, the Land Court shall intimate to the Commission that it has done so and provide them with a copy of the contract or agreement.
(5) On receiving a copy, provided under subsection (3)(b) or (4) above, of a contract or agreement the Commission shall enter the copy in the Register of Crofts.
(6) Where a copy is so entered then, subject to the terms of the contract or agreement, the deprival in question is binding on the successors to the crofter’s interest.
(7) Before the croft is put to any such use as is mentioned in paragraph 3(b) of the statutory conditions, the crofter must apply for the landlord’s written consent and either—
(a) obtain it unconditionally or subject to conditions which the crofter accepts; or
(b) obtain the consent of the Commission.
(8) Any application for consent under paragraph (b) of subsection (7) above is to be made under this subsection but may be made only where consent under paragraph (a) of that subsection (whether unconditional or subject to such conditions as are mentioned in paragraph (a)) has not been obtained within 28 days after application under paragraph (a).
(9) The Commission shall, on receipt of an application under subsection (8) above—
(a) consult, as regards the proposed purposeful use, the landlord and the members of the crofting community in the locality of the land; and
(b) if the proposed purposeful use—
(i) constitutes a change for which planning permission is required; or
(ii) by virtue of any enactment (other than this Act) requires any other permission or approval,
require it to be shown that the permission or approval has been given.
(10) The Commission shall decide the application within 28 days after receiving it; and if they give their consent may impose such conditions as they think fit.”.
(2) In Schedule 2 to that Act (which sets out conditions to which every tenancy of a croft is subject)—
(a) in paragraph 3, for the words from “cultivate” to the end there is substituted “either or both—
(a) cultivate his croft;
(b) put it to some other use, being a purposeful use,
so that every part of the croft either is cultivated or is put to such use.”;
(b) after paragraph 3 there is inserted—
“3A The croft shall be kept in a fit state for cultivation except in so far as a use to which it is put by virtue of paragraph 3(b) above is incompatible with its being so kept.
3B Without prejudice to the generality of paragraph 3A above, in determining whether that paragraph is complied with regard shall be had to whether appropriate measures (which may include the provision of drainage) are routinely undertaken, where requisite and practicable, to control or eradicate vermin, bracken, whins, broom, rushes, iris and harmful weeds.”;
(c) in paragraph 5, for the words from “persistently” to the end there is substituted “injure the croft—
(a) by allowing the dilapidation of buildings;
(b) where the croft is cultivated, by allowing, after relevant notice, the deterioration of the soil; or
(c) where the croft is put to some other purposeful use, by actings prejudicial to that use being actings carried out after relevant notice.”;
(d) after paragraph 5 there is inserted—
“5A In sub-paragraphs (b) and (c) of paragraph 5 above, “relevant notice” means notice given by the landlord to the crofter not to do, or not to allow, a particular thing or not to engage in a particular course of conduct (being a thing or course of conduct specified in the notice and relevant to the deterioration or prejudice in question).”;
(e) after paragraph 6 there is inserted—
“6A The crofter shall be responsible for ensuring, where the croft is sublet, that the subtenant adheres to the statutory conditions.”;
(f) in paragraph 7, for the word “subdivide” there is substituted “divide”;
(g) in paragraph 9, the word “persistently” is repealed;
(h) after paragraph 11 there is inserted—
“11A Nothing in paragraph 11 above shall be held to allow, or require the crofter to allow, the landlord, or any person authorised by the landlord, to exercise unreasonably a right enjoyed by virtue of that paragraph.”; and
(i) in paragraph 13, at the end there is added—
““purposeful use” is any planned and managed use, being a use which subject to the exception in paragraph 3A above, does not adversely affect the croft, the public interest, the interests of the landlord or the use of adjacent land.”.
(3) The amendment made by subsection (2)(a) above does not affect the right conferred by paragraph 3 of Schedule 2 to that Act, as originally enacted, in relation to a use for subsidiary or auxiliary occupations provided that such use subsists (having subsisted from before the coming into force of that subsection).
After section 5 of the 1993 Act, there is inserted—
(1) Without prejudice to any right which the landlord has to initiate proceedings in relation to a breach of the statutory conditions as respects a croft, the landlord or any member of the crofting community in the locality of the croft may complain to the Commission that such a breach (other than a breach of the condition as to payment of rent) has occurred.
(2) Provided—
(a) that no proceedings—
(i) such as are mentioned in subsection (1) above; or
(ii) under section 5B of this Act,
have been initiated; and
(b) that the period allowed the crofter by virtue of subsection (4) below has elapsed,
the Commission may make an application to the Land Court in relation to the breach; but this subsection is subject to subsection (3) below.
(3) Except where the complaint was by the landlord, the Commission shall give him written notice of their intention to make the application; and if within 14 days after receipt of that notice he gives them intimation that he objects, being intimation of the description given in subsection (7) below, they shall not proceed with the application.
(4) Before making the application, the Commission shall give written notice to the crofter of the breach complained of and give him the opportunity to remedy it within such reasonable period as they shall specify in the notice.
(5) Where, on an application under subsection (2) above, the Land Court is satisfied that the breach complained of has occurred, it may—
(a) order that the breach be remedied and specify a time within which that must occur; and
(b) make such order regarding the payment of compensation by the crofter to the landlord as it thinks fit.
(6) Where an order under subsection (5)(a) above is not complied with, the Commission may apply to the Land Court for an order—
(a) terminating the tenancy;
(b) declaring the croft to be vacant; and
(c) for the removal of the tenant from the croft.
(7) The description is that the intimation is given in writing or in another form which, by reason of its having some permanency, is capable of being used for subsequent reference (as, for example, a recording made on audio or video tape).
(8) For the purposes of subsection (7) above (and without prejudice to the generality of that subsection), an intimation is to be treated as given in writing where it is—
(a) transmitted by electronic means;
(b) received in legible form; and
(c) capable of being used for subsequent reference.
(1) Without prejudice to any right which the landlord has to initiate proceedings in relation to a breach of the statutory conditions as respects a croft, if the crofter—
(a) misuses; or
(b) neglects,
the croft, the landlord or, with the consent of the landlord, the Commission may apply to the Land Court for an order—
(i) terminating the tenancy;
(ii) declaring the croft to be vacant; and
(iii) for the removal of the tenant from the croft.
(2) Before making an application by virtue of paragraph (a) of subsection (1) above the landlord, or as the case may be the Commission, shall give written notice to the crofter of the misuse complained of and give him the opportunity to end that misuse within a period of 42 days commencing with the day on which notice is given.
(3) Where, on an application made by virtue of paragraph (a) of subsection (1) above, the Court is minded to make the order applied for, it shall so notify the crofter but shall not make the order (the crofter being advised accordingly in the notification) if, by the end of a period of 42 days commencing with the day on which notification is given, he is able to satisfy the Court that the misuse has been brought to an end.
(4) If the circumstances are that an application made by virtue of paragraph (b) of subsection (1) above (in this section, the “current application”) is being made within 5 years after another application made by virtue of that paragraph as respects the croft, and that other application resulted in notification being given to the crofter under subsection (5) or (6) below, then before making the current application the landlord, or as the case may be the Commission, shall give written notice to the crofter of the neglect complained of and give him the opportunity to end that neglect within a period of 42 days commencing with the day on which notice is given.
(5) Where, on an application made by virtue of paragraph (b) of subsection (1) above in circumstances other than are mentioned in subsection (4) above, the Court is minded to make the order applied for, it shall so notify the crofter but shall not make the order (the crofter being advised accordingly in the notification) if—
(a) the crofter agrees forthwith that there has been neglect and undertakes to end that neglect; and
(b) by the end of a period of one year commencing with the day on which notification is given, he is able to satisfy the Court that the croft is being managed so as to meet the standards mentioned in subsection (7) below.
(6) Where, on an application made by virtue of paragraph (b) of subsection (1) above in the circumstances mentioned in subsection (4) above, the Court is minded to make the order applied for, it shall so notify the crofter but shall not make the order (the crofter being advised accordingly in the notification) if, by the end of a period of 42 days commencing with the day on which notification is given, he is able to satisfy the Court that the croft is being managed so as to meet the standards mentioned in subsection (7) below.
(7) For the purposes of subsection (1) above, a crofter—
“misuses” a croft where he wilfully and knowingly uses it otherwise than for the purpose of its being cultivated or put to such other purposeful use as is duly consented to by virtue of section 5(7) of this Act;
“neglects” a croft where the croft is not managed so as to meet the standards of good agricultural and environmental condition referred to in regulation 4 of, and the Schedule to, the Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2004 (SSI 2004 No. 518).
(8) But where the crofter, for the purpose of conserving—
(a) the natural beauty of the locality of the croft; or
(b) the flora and fauna of that locality,
engages in, or refrains from, an activity, his so engaging or refraining is not, for the purposes of subsection (1) above, to be treated as misuse or neglect as respects the croft.
(9) If, immediately before the coming into force of section 8 of the Crofting Reform etc. Act 2007 (asp 7), the croft was being used for a subsidiary or auxiliary occupation by virtue of the right conferred by paragraph 3 of Schedule 2 to this Act (as that paragraph then applied), any continuation of use for that occupation is not, for the purposes of subsection (1) above, to be treated as misuse or neglect as respects the croft.
(10) The Scottish Ministers may by order made by statutory instrument amend the definition of “neglects” in subsection (7) so as to substitute different standards for those for the time being mentioned in that subsection.
(11) A statutory instrument containing an order under subsection (10) shall not be made unless a draft of the instrument has been—
(a) laid before; and
(b) approved by resolution of,
the Scottish Parliament.”.
After section 4 of the 1993 Act, there is inserted—
(1) A crofter may not exchange his croft (or any part of his croft) for another croft (or part of another croft) unless—
(a) he obtains the consent of—
(i) the landlord of his croft; and
(ii) the Commission;
(b) the exchanging crofters have the same landlord; and
(c) that landlord is the owner of any common grazing in which the crofters share.
(2) The consent of the Commission shall not be given unless they are satisfied that the consent mentioned in paragraph (a)(i) of subsection (1) above has been obtained.
(3) In the case of an application made by virtue of subsection (1) above, the special condition which applies for the purposes of section 58A(6)(b)(ii) of this Act is that there are reasonable grounds for concern that the proposed exchange would be unfair to either (or as the case may be any) of the crofters who are parties to the proposed exchange.
(4) A new croft is not created by virtue only of such exchange.”.
For section 9 of the 1993 Act (sub-division of croft), there is substituted—
(1) A crofter shall not divide his croft unless he obtains the consent of the Commission.
(2) In the case of an application to divide a croft, the following special conditions apply for the purposes of section 58A(6)(b)(ii) of this Act—
(a) that the application is for the creation of more than two new crofts; or
(b) that the original croft is one created as a consequence of an earlier division (or sub-division).
(3) Any division of a croft to which the Commission have given their consent under this section shall take effect when such details of that division as the Commission may require by virtue of section 41 of this Act are entered in the Register of Crofts.
(4) After division, the rent payable for the new crofts shall be that agreed between the landlord and the tenant.
(5) In the event that such agreement cannot be reached, the Land Court, on the application of the landlord or the tenant, shall have the power to determine the rent in accordance with subsections (3) and (4) of section 6 of this Act, the fees payable in connection with such an application being borne by the tenant.
(6) In this section—
“division” means the division of a croft into two or more new crofts (“divide” being construed accordingly);
“original croft” means the croft which is the subject of an application for division; and
“new crofts” mean each of the crofts created by the division of the original croft.”.
(1) In section 27 of the 1993 Act (provisions as to right to sublet)—
(a) in subsection (1), after the words “his croft” there is inserted “, for a period not exceeding 10 years,”; and
(b) for subsections (3) and (4) there is substituted—
“(3) In the case of any application for such consent, the following special conditions apply for the purposes of section 58A(6)(b)(ii) of this Act—
(a) that there are reasonable grounds for concern as regards the use which the proposed subtenant intends to make of the croft; and
(b) that the proposed subtenant will not reside on, or within 16 kilometres of, the croft.”.
(2) Section 28 of that Act (special provisions regarding subletting of crofts not adequately used) is repealed.
(3) In section 29 of that Act (miscellaneous provisions regarding subleases of crofts)—
(a) after subsection (2) there is inserted—
“(2A) The conditions of let must specify that the crofter shall give the subtenant not less than 6 months written notice of any intention to assign, exchange or divide the croft and that the sublease shall come to an end on such assignation, exchange or division.”; and
(b) after subsection (3) there is inserted—
“(3A) Where the tenancy of a croft is terminated by virtue of the death of the crofter, the Commission shall, as part of their consideration in determining whether to make an order under the proviso to subsection (3) above and if so what period of occupation to permit—
(a) consult the deceased crofter’s executor; and
(b) have regard in particular to such hardship as might, according to what they decide, be occasioned—
(i) the former subtenant; or
(ii) an assignee or transferee of the interest of tenant,”.
Crofting Reform etc Act 2007