Tenant Crofter
A tenant crofter has a duty to either “cultivate” his croft or put it to another “purposeful use” as required by sub-section 5C(2) of the Crofters (Scotland) Act 1993. Purposeful use is defined at sub-section 5C(8) as any planned and managed use which does not adversely affect the croft, the public interest, the interests of the landlord or (if different) the owner, or the use of adjacent land. A renewable energy development may qualify as purposeful use.
Under sub-section 5C(4) a tenant may only put the croft to a purposeful use if:
a) the landlord has consented to the use (unconditionally or subject to conditions acceptable to the crofter), or
b) the Crofting Commission have consented to the use.
The Crofting Commission can only consider an application to put the croft to a purposeful use if the landlord has refused consent or granted consent subject to conditions unacceptable to the tenant.
Owner-Occupier Crofter
An owner-occupier crofter has a duty to either “cultivate” his croft or put it to another “purposeful use” as required by sub-section 5C(2) of the Crofters (Scotland) Act 1993. However, unlike the tenant crofter there is no requirement in the legislation to obtain consent to put the croft to a purposeful use, rather than cultivate it.
Decrofting
Although a renewable energy development may qualify as another purposeful use of croft land, a tenant or an owner-occupier crofter may require removing the land from crofting regulation in order to secure funding from commercial lenders to support the development. It is open to both tenant and owner-occupier crofters under sub-sections 24(3) & 25(1)(a) to apply to the Crofting Commission for a decrofting direction in order that the croft, or any part of it, may be used for or in connection with some reasonable purpose. “The generation of energy” is included in the list of reasonable purpose examples set out at sub-section 20(3) of the Act.
In considering whether to grant such an application the Commission must satisfy themselves in relation to the good of the croft, the estate, the public interest, and the interests of the crofting community in the locality of the croft. They must also be satisfied that the extent of the land to which the application relates is not excessive in relation to the purpose applied for.
In addition where the purpose is, or is connected with, the development of the croft in respect of which planning permission subsists, the Commission may take into account the effect such development would have on the croft, the estate, and the crofting community in the locality of the croft.
Landlords
Schemes For Development
Under Section 19A a landlord (or owner) can apply to the Land Court for consent to develop croft land in accordance with a scheme appended to the application. The application can include land near to croft land if rights and liabilities in relation to the croft land would be affected.
In considering the application, consent will not be given unless the Court is satisfied that:
- The development is for a reasonable purpose (as we have seen, the generation of energy is included in the examples of reasonable purpose);
- To carry it out would not be unfair;
- That the scheme provides for there to be fair recompense to each member of the crofting community affected by the development (including, in relation to the croft land of each member, recompense at least equivalent to the recompense which the member might be expected to have obtained had the croft land been resumed);
- That the community would likely to benefit financially, and such benefit would be at least commensurate with any financial benefit which the members of that community might obtain on the development proceeding by any other means.
Alternatively the application may simply intimate a scheme to the Court if every person who has rights in or over croft land consents to its being developed under that Scheme.
It is important to note a crucial difference between decrofting/resumption and Schemes for development under Section 19A. Under both decrofting and resumption the land to be used for development is removed from crofting tenure. However under Section19A the rights of the crofters and/or shareholders in relation to the land are suspended for the lifetime of the development, there is no change to the status of the land as croft or common grazings.
Resumption
The Land Court may authorise, on an application under Section 20 by a landlord, resumption of croft land for a reasonable purpose (including the generation of energy). In considering the application the Land Court must consider the purpose in relation to:
- the good of the croft;
- the good of the estate;
- the public interest;
- the interests of the crofting community in the locality of the croft.
The Court may require the tenant to surrender the croft land to the landlord, upon the landlord making adequate compensation to the crofter. Compensation can be a monetary award, an adjustment of rent, or the letting of land of equivalent value. In addition to compensation for agricultural loss, a crofter, under Section 21, is also entitled to a share in the value of the land resumed. That share is one half of the difference between the market value of the land, as determined by the court (less any compensation payable) and the crofting value.
Common Grazings Land
Landlords
The provisions set out above at ‘Schemes for Development’ and ‘Resumption’ also apply to common grazings land as to croft land.
In addition, under sub-section 21(4) where the resumed land forms part of a common grazings the share of the value of the land shall be apportioned among the crofters sharing in the common grazing according to their right in the common grazings. The Commission understand that this right is in accordance with their souming entitlement in the common grazings.
Grazings Committees
Under Section 50B a crofter who holds a right in a common grazing may propose to the grazings committee that a part of the common grazing be used other than for grazings or woodlands. The proposed use must not be detrimental to the use being made of the other parts of the common grazing or the interests of the owner of the grazings
On receipt of a proposal the grazings committee shall summon a meeting of the crofters who share in the grazings, and shall send notice to the owner of the grazings inviting him to give his views and affording him the opportunity to discuss the proposal with a member of the committee.
If the vote is in favour of the proposal, the grazings committee shall apply to the Crofting Commission seeking their approval for its implementation. In considering such an application the Commission are required to take into account:
- the interests of the estate which comprises the land to which the application relates;
- the interests of the crofting community in the locality of that land;
- the sustainable development of that crofting community;
- the interests of the public at large;
- any objections received;
- any plan of the Commission;
- any other matter which the Commission consider relevant.
It is possible that Section 50B could be used for renewable energy development. However the more likelihood is that where these are communal developments, that they will be carried out under Section 19A as a Scheme for development, or that development would be carried out on land resumed under Section 20.
The reason being that the legislative provisions under Section 50B relate solely to the change of use of the land. Unlike Sections 19A and 20, there are no corresponding legislative provisions relating to the financial benefits of the development, fair recompense arrangements for the parties affected by the development, or provisions relating to how the development will happen.