The Highland Line: why crofting regulation should be of interest to every Scot

David Ross

Friday 8 March 2013

Question. When is a property occupied by its owner, classified as vacant? Answer, when it is a croft.

It was already complicated enough, but it now transpires that the 2010 Crofting Reform Act has inadvertently managed to deny around 3,000 crofters the opportunities they previously enjoyed.

It has emerged that the act removes the ability of those who own their crofts, to “decroft” or remove from crofting regulation land normally to create house sites for themselves or sell to others.

There are about 17,700 crofts in the old crofting counties of Argyll, Caithness, Inverness, Ross and Cromarty, Sutherland, Orkney, and Shetland. Just under 2,900 are owner occupied. Before the latest crofting act came into force they would have approached the old Crofters Commission to decroft and the commissioners would decide one way or the other. But now the new Crofting (notice the addition of ing )Commission is having to turn down all such applications. The issue was raised by Shetland Lib Dem MSP Tavish Scott at First Minister’s Questions last week just after Alex Salmond had announced the Rassay sporting rights would be restored to the island’s crofters, a week after questions were asked in Holyrood. Mr Scott said he hoped the First Minister would react with similar speed on decrofting. But now the Crofting Commission has made clear it will not be easily fixed. “Based on the advice we received our understanding is that there is no provision within the legislation for the Crofting Commission to issue a decrofting direction to an owner-occupier crofter who is occupying their owner- occupied croft.” The legal advice was that commission would be acting outwith its legal authority in issuing decrofting directions. So “In the meantime, we will hold all current applications for decrofting from owner-occupier crofters in abeyance, as to issue a direction in such cases would entail us acting outwith our powers, as set out in the current legislation.” The problem is that prior to the new act, a crofter was defined solely as the tenant of a croft. Anyone who purchased their croft was essentially a landlord without a tenant i.e. the landlord of a vacant croft. There were separate provisions within crofting legislation for both croft tenants in advance of purchase, and landlords of vacant crofts, to apply to the commission for a direction that their croft, or often part of it, cease to be a croft. But the Crofting Reform (Scotland) Act 2010 introduced the new category of owner-occupier crofter from October 1 2011, and this threw a large spanner into the regulatory works, as the commission makes clear: “Our understanding is that the intention of sub-section 23(12A) of the Crofters (Scotland) Act 1993 was to amend sub-section 24(3) in order to extend the existing decrofting provisions to owner-occupier crofters. However we have been advised that as sub-section 24(3) is concerned with a situation where a croft is “vacant”, and as crofts occupied by owner-occupiers crofters are by separate provision in the Act deemed not to be vacant, then it does not appear to be competent for the Commission, on the application of an owner-occupier crofter who is occupying their croft, to make a direction that the croft (or part of it) shall cease to be a croft. “ The commission continues: “Owner occupier crofters finding themselves compromised by recent legal clarity are advised to seek independent legal advice as to possible remedies”. This hasn’t impressed Tavish Scott. "The Crofting Commission and the Scottish Government cannot wash their hands of this fiasco. Advising crofters to consult their lawyer is a useless response to a problem they knew about in November. The Commission and Scottish Government both look pathetic and crofters will wander what they are there to achieve." But Brian Inkster of Inksters Solicitor, which has offices in Glasgow, Inverness and Wick, has come up with a possible solution or two : “There may be help in the form of the Scottish Government itself. Under Section 1 (3) of the Crofters (Scotland) Act 1993, the Scottish Ministers could direct (in other words, compel) the Commission to process the applications, if they felt it was necessary. They have used the provision before, and could do so again." Failing that an individual could go to the Scottish Land Court or seek judicial review in the Court of Session, an expensive course of action. Whatever happens it is a mess, as much of the cause of crofting reform has been these past 10 years or so. Indeed Ministers were talking about legislating on crofting almost since Holyrood convened in 1999, but land reform legislation, with its crofting community right to buy, came first. Then the former Labour/LibDem Scottish Executive began new consultations but was forced to abandon controversial sections in its crofting legislation in September 2006 after a furious reaction from crofters and commentators. So a committee of inquiry was appointed. The committee conducted the largest ever survey of crofter opinion and published its report in May 2008 which sought to tackle the issues raised in the survey. But again there was an angry reaction. The SNP Government had inherited the committee and its report, but ministers subsequently dropped the more controversial proposals to keep crofters on their crofts and address absenteeism. So one thing is sure, there will be no ministerial appetite for more croft reform in the near future. It’s probably just as well. The waste of holiday homes There are a few hundred holiday home owners in the Highlands who may well be in for a rather nasty and possibly smelly shock come Easter. Because many are rented out, rubbish from holiday homes is classed as commercial waste, in contrast to those who stay year round, who have the distinction of throwing away domestic rubbish. Last month the Highland Council wrote to the owners of around 600 non-domestic rated (NDR) holiday home properties in all the Inverness and Sutherland areas advising them of their legal obligations under something called the Environmental Protection Act and associated Duty of Care Regulations, or the law as others call it. This requires them to have in place a waste collection contract for dealing with the waste generated from their businesses. In the case of second homes, this just means the remains of all the Marks and Spencer provisions that were brought up with them. But anyway, the council letter advised that if there was no response by early March then the collection service would cease. A similar exercise was carried out last year, when the council contacted the owners of such properties in all other areas of the Highlands. So far 130 holiday home owners out of the 600 have responded to the letter, with only 70 taking out refuse and recycling collection contracts. So from the beginning of April the council will stop providing a service to those who didn’t reply. In case they are in any doubt , stickers with the rather snappy text, will be attached to any bins presented for collection that do not have a current collection contract in place. The text will read: “The Highland Council has not emptied your bin because our records show you do not have a current commercial waste collection contract with us - no contract, no uplift.” Now that’s telling them like it is! Of course many will just think that they can take their old copies of the Telegraph and empty bottle of pinot grigio to the nearest recycling point, and dump the rest in the nearest litter bins – problem solved without the nuisance of all this waste collection contract nonsense. But the authors of the Environmental Protection Act and associated Duty of Care Regulations, aren’t so daft, and have anticipated this rather selfish turn of mind, closing off these escape routes. All non-domestic rated premises are required to pay for their waste collection service and to have in place what is known as a “waste transfer note” specifying what waste they produce; which registered waste carrier collects that waste and which licensed waste disposal/treatment facility is used for the disposal/treatment of the waste. Failure to have this documentation in place is a breach of the Regulations. And so nobody is in any doubt, the council website warns: “The same action will be taken in future for any commercial businesses throughout the Highlands who are found to be illegally obtaining a collection service from the Council or are illegally disposing of their commercial waste in the litterbins or at the Recycling Centres.”

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The Highland Line: why crofting regulation should be of interest to every Scot

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