Part 4: Common Grazings
Section 26: Use of common grazing
108.This section introduces a number of changes connected with common grazings and their uses.
109.Section 26(1) makes changes to section 50 of the 1993 Act. It inserts six new subsections which modify matters relating to consent by the owner and use of woodlands.
110.New section 50(2A) restricts the right of the owner of common grazing land to refuse consent for crofter forestry purposes by specifying the grounds on which consent may be refused. The grounds on which consent may be refused are intended to cover the situations in which there would be a loss or harm to the interests of the owner or a crofter if the planned crofter forestry scheme proceeded. It also specifies that a refusal of consent must be in writing giving reasons for refusal. New section 50(2B) further provides that a failure to give or refuse consent within 6 weeks is to be treated as refusal of consent. In the event that consent is refused or granted with conditions the crofters have the right to challenge that refusal of consent in the Land Court. New section 50(2C) specifies what the Land Court may do if it determines that the refusal of consent was unjustified or the conditions imposed are unreasonable.
111.New section 50(3A) requires the Commission to consult on receipt of an application for approval of a crofter forestry proposal and specifies who they must consult. New section 50(3B) clarifies the kinds of activity which might be included in using land as woodlands.
112.New section 50(3C) makes clear that responsibility for the cost of fencing land enclosed for crofter forestry and for subsequent maintenance, repair and renewal of that fence rests with the grazings committee or where there is no grazings committee with the crofters sharing in the grazing.
113.Section 26(2) inserts new sections 50A and 50B after section 50 in the 1993 Act. New section 50A provides scope for joint forestry ventures between the owner of the common grazing and crofters. It provides for the crofters and owner to make agreements which are binding on their successors and which can be amended at a later date only by agreement. It provides in section 50A(2) for the possibility of such agreements including existing trees. It also provides (new section 50A(3)) for a copy of such an agreement to be held by the Commission and in terms of section 50A(4) for such agreement to be amended by written agreement also lodged with the Commission. It also makes provision in new sections 50A(5) to (7) for the parties to resolve, in the Land Court, any disputes that arise as to value of the trees or the size of the entitlement to a share of the timber produced.
114.New section 50B provides that common grazings may be used by crofters for purposes other than those such as grazing, forestry, peat-cutting, use of seaweed and use of heather and grass for roofing which are currently permitted. This change in use would require agreement of those crofters with shares in a common grazing and approval of the Commission (the Commission decision would be subject to a right of appeal to the Land Court by a shareholder or the owner of the common grazing in terms of section 52A of the 1993 Act as inserted by section 33 of the Act).
115.New section 50B also creates a process for making and considering a proposal to put a common grazing to another use. New section 50B(1) identifies who may propose an alternative use for a part of the common grazing. New section 50B(2) provides that the proposed new use cannot be one which is detrimental to the current use of other parts of the common grazing or to the owner’s interests.
116.New sections 50B(4) to (6) set out requirements for convening a meeting of the grazings committee to consider a proposal, consultation with the owner before the meeting, making the owner’s views known to the meeting, voting rights, conducting the vote, declaring the result of the vote and communicating the details of the decision of the meeting and the detailed results of the vote to the owner after the meeting.
117.New sections 50B(7) to (11) specify how the Commission should consider the matter and reach a decision after allowing 28 days for receipt of objections. If that decision is to approve a proposal, new section 50B(11) provides how the Commission may deal with a proposal and if they approve the implementation of the proposal, how they may later review their decision.
118.New sections 50B(12) and (13) require the Commission to impose a condition requiring provision of a deer-proof barrier around the land affected by a proposal where the owner asks for it to be provided, the Commission consider that the implementation of the proposal would make the land more attractive to deer and there are deer management and/or environmental enhancement/protection reasons for doing so.
119.New sections 50B(14) and (15) provide how the Commission will communicate their decision.
Section 27: New common grazing
120.This provision inserts a new section 51A into the 1993 Act to provide for the creation of a new common grazing by a land owner. New section 51A(1) empowers the Commission acting on an application from the owner of the land to record eligible land as a common grazing in the Register of Crofts. Such change cannot be recorded until any appeal against such change has been decided. New sections 51A(2) to (4) detail how the Commission should go about considering and determining an application.
121.New section 51A(5) defines what constitutes eligible land for the purposes of this section. New section 51A(5)(c) excepts land adjacent to a croft (because such land can be turned into common grazing land under existing provisions of the 1993 Act).
122.New sections 51A(6) to (8) provide that where a new common grazing is created the parties must agree in writing how the land is to be used, that this agreement is binding on the parties and their successors, that it may only be amended by agreement (see new section 51A(8)) and that a copy of the agreement will be held by the Commission. Subsection (7) also outlines the purposes for which the common grazing is to be used. It should be noted that since the parties would remain bound by the agreement the procedure for enabling the use of parts of the common grazing for other purposes and for crofter forestry, insofar as they allow for an owner’s refusal of consent to be overridden, will not be relevant to a new grazing.
123.New section 51A(9) applies section 6 of the 1993 Act with the effect that the land will be treated as a croft for rent purposes. New sections 51A(10) and (11) specify ways in which valid comments may be submitted.
Section 28: Contravention of, or failure to comply with, common grazings regulations
124.Section 28 amends the provisions of section 52 of the 1993 Act so as to provide a new means of enforcing common grazings regulations. As a result of the replacement of the previous section 52(1) with a new section 52(1), breach of grazing regulations will no longer be a criminal offence.
125.A new procedure is put in place by means of new subsections (1) to (1F). These provisions provide for the Commission to intervene at the request of the owner or grazings committee where grazings regulations are not being observed. If the Commission are asked to intervene new section 52(1A) requires them to give notice of the contravention to the person accused of not observing the regulations, the grazings committee and the owner. The Commission, or a person appointed by the Commission, are thereafter required by new section 52(1B) to allow all these parties to make representations about the allegation and evidence may also be heard. If the Commission determine there has been a contravention of or failure to comply with grazings regulations in terms of new section 52(1C) they can require the offender to comply with the regulations and make good any damage. Where an offender does not so comply, new section 52(1D) allows the Commission either to determine that all or part of that person’s share in the common grazing is suspended or, if the person is required to make good damage to the grazing, to allow a further period for that to be done. This section also allows the Commission to end a period of suspension. New section 52(1E) provides that when a grazing share has been suspended and a requirement imposed by the Commission is still not complied with, the Commission can extend the period for making good damage done or determine that the share is terminated and apportion it to the other shareholders. New section 52(1F) confirms what other rights are included within the meaning of the term share.
126.It is important to note that each determination by the Commission under section 52(1C), (1D) and (1E) is subject to the appeal provisions in new section 52A (see section 33 of the Act.) This therefore affords the person accused of a breach the opportunity to challenge the Commission’s actions in court at each stage.
Section 29: Further amendment of section 52: apportionment
127.Section 29 amends section 52 of the 1993 Act. Section 29(2) amends the description in section 52(4) of a person who may apply for an apportionment to be a person who holds a right in a common grazing.
128.Section 29(3) inserts new subsections (10) to (15) into section 52. New subsection (10) allows the Commission to specify that an apportionment should be for a particular period and/or subject to review at fixed intervals. New section 52(11) allows the Commission to extend the original period and new section 52(12) allows it to vary the conditions attached to an apportionment if either the crofter or township asks for that to be done.
129.New section 52(13) provides that when a period of apportionment ends or the apportionment is terminated the land will revert to being a common grazing.
130.New section 52(14) provides that the Commission may reallocate grazing shares when land reverts to common grazing use, having regard to the rights held in the common before the original apportionment was granted.
131.New section 52(15) makes it clear these powers will not extend to land newly constituted as common grazing under new section 51A of the 1993 Act (inserted by section 27 of the Act) as that section provides that such land may only be used as agreed by the owner and those sharing in that new common grazing.