Modifications of Part 3 of Land Reform (Scotland) Act 2003): the crofting community right to buy
Introduction
145.Sections 62 to 73 of the Act amend provisions of Part 3 of the Land Reform (Scotland) Act 2003, the crofting community right to buy.
146.Part 3 of the 2003 Act provides a properly constituted crofting community body representing an identified crofting community with a right to acquire eligible croft land (including salmon fishings, certain mineral rights, sporting rights and the interest of the tenant in tenanted land, where the tenant’s interests in the land relate to the land being acquired). Part 3 sets out the eligible land which may be acquired by the crofting community body, and the process for acquiring that land, including procedures for a ballot to prove community support for the acquisition, for valuation of the land, for appeals and for compensation.
Crofting community bodies
147.Section 62(2) of the Act inserts subsection (A1) into section 71 of the 2003 Act. This subsection extends the types of body which may be crofting community bodies under Part 3 of the 2003 Act to include Scottish charitable incorporated organisations (“SCIOs”) and community benefit societies (“BenComs”) and any other type of body which Ministers specify in regulations.
148.Section 62(4) of the Act inserts new subsections (1A) and (1B) into section 71 of the 2003 Act which sets out the provisions that a SCIO or BenCom must include in its constitution or registered rules for it to be a crofting community body and so eligible to make an application under Part 3 of the 2003 Act.
149.Section 62(5) of the Act amends section 71(2) of the 2003 Act which allows Ministers to disapply the requirement that the articles of association, constitution or registered rules of an community body must require that the body have a minimum of 10 members.
150.Section 62(6) of the Act inserts subsection (4A) into section 71 of the 2003 Act. This subsection gives Ministers the power to modify, by way of regulations, the criteria which must be met by companies limited by guarantee, SCIOs and BenComs in order to be crofting community bodies under Part 3 of the 2003 Act.
151.Section 62(7) of the Act amends section 71(5) of the 2003 Act and amends the definition of a “crofting community”. The definition of a crofting community will include tenants of crofts whose names are entered in the Crofting Register, or the Register of Crofts, as tenants of those crofts; owner-occupier crofters of crofts in the crofting township whose names are entered in the Crofting Register; and such other persons or classes of persons as may be set out by Ministers in regulations.
152.Section 62(8) of the Act inserts definitions of “owner-occupied croft” and “owner-occupier crofter” into section 71(6) of the 2003 Act.
153.Section 62(9) of the Act inserts definitions of “community benefit society”, “registered rules” and “Scottish charitable incorporated organisation” into section 71(8) of the 2003 Act.
Modification of memorandum, articles, constitution or registered rules
154.Paragraph (a) of section 63 of the Act amends section 72(1) of the 2003 Act which provides that a crofting community body which bought land under Part 3 of the 2003 Act shall not, for as long as the land remains in its ownership, modify its memorandum or articles of association without the consent of Ministers. The amendment provides for the same restriction in relation to a constitution (in the case of Scottish charitable incorporated organisations) or registered rules (in the case of community benefit societies).
155.Paragraph (b) of section 63 of the Act inserts subsections (3), (4) and (5) into section 72 of the 2003 Act. Subsection (2) provides that Ministers may compulsorily acquire croft land if they are satisfied that the crofting community body which has bought the croft land, if it had not done so, would no longer be entitled to do so. Section 72(3) provides that the provision in section 72(2) will not apply when the land is no longer eligible croft land. Section 72(4) provides Ministers with the power to make an order relating to the compulsory acquisition of the croft land. Section 72(5) provides that the order made under section 72(4) may apply, modify or exclude any matter as to which an order could be made relating to the compulsory acquisition of the land by Ministers.
Application: information about rights and interests in land
156.Section 64(2) of the Act removes the provision in section 73(5)(b)(ii) of the 2003 Act which requires a crofting community body to provide information about sewers, pipes, lines, watercourses or other conduits and fences, dykes, ditches or other boundaries in or on the land.
157.Section 64(3) of the Act inserts new subsection (5ZA) after section 73(5) of the 2003 Act. Section 73(5) requires all persons listed in new subsection (5ZA) to be correctly identified in the application. Those persons who must be correctly identified are the owner of the land; any creditor in a standard security over the land with a right to sell the land; any tenant of a tenancy of the land in respect of which the right to buy is to be exercised and any person entitled to any sporting interests on the land in respect of which the right to buy is to be exercised.
158.Section 64(4) of the Act inserts subsection (5AA) into section 73 of the 2003 Act. Subsection (5AA) allows Ministers to amend or repeal the minimum requirements for information which must be included in or accompany a crofting community right to buy application.
159.Section 64(5) of the Act amends section 73(11) of the 2003 Act. Ministers are required to give public notice, by advertisement, of an application by a crofting community body. The form of the advertisement is now to be set out in regulations made by Ministers.
Criteria for consent by Ministers
160.Section 65 of the Act amends the criteria which must be satisfied in section 74(1) of the 2003 Act in order for Ministers to consent to a Part 3 application. The additional criteria in section 74(1) are that Ministers may only consent to an application if the persons listed in section 73(5ZA) are correctly identified in the application.
Ballot: information and expenses
161.Section 66(2) of the Act inserts additional subsections (4A) and (4B) after section 75(4) of the 2003 Act. Subsection (4A) allows Ministers to request additional information from the crofting community body in connection with the ballot, including any consultation with those eligible to vote in the ballot. Subsection (4B) confirms that the expense of conducting the ballot is to be met by the crofting community body.
162.Section 66(3) of the Act inserts additional subsections (6) and (7) into section 75 of the 2003 Act. Subsection (6) gives Ministers the power to make regulations to enable a crofting community body to seek to recover the expense of conducting the ballot from Ministers. Subsection (7) sets out the matters in relation to which such regulations can make provision, including the circumstances in which a crofting community body may make an application and the criteria to be applied by Ministers in deciding whether to reimburse the applicant.
Application by more than one crofting community body
163.Section 67 of the Act amends section 76(4)(b)(i) of the 2003 Act to ensure that, when more than one crofting community body applies to purchase the same land, all parties who were invited to comment on the applications are notified when Ministers decide which application is to proceed and which application(s) are extinguished.
Reference to Land Court of questions on applications
164.Section 68 of the Act amends section 81(1) of the 2003 Act to expand the list of persons who have a right to refer a question to the Land Court before Ministers reach a decision on an application. The list of persons now includes the owner of the land which is the subject of the application, the person entitled to any sporting interests which are the subject of the application and any tenant whose interest is the subject of the application.
Valuation: views on representations and time limit
165.Section 69 of the Act inserts new subsections (9A) and (9B) after section 88(9) of the 2003 Act. Subsection (9A) provides that, where representations on the value of the land are received from the owner of the land, the tenant or the person entitled to sporting interests, the valuer must invite the crofting community body to make counter-representations, and similarly the owner, tenant or person entitled to sporting interests must be invited to make counter-representations in response to representations made by the crofting community body.
166.Subsection (9B) requires the valuer to take account of any representations made under subsection (9A) when making a valuation of the land.
Compensation
167.Section 70 of the Act amends section 89(4) of the 2003 Act which gives Ministers the power to set out the procedure under which claims for compensation payable in relation to an application to purchase land may be made. The amended section 89(4) gives Ministers the power to make an order to specify amounts payable in respect of loss or expense incurred by a landowner, person entitled to sporting interests or tenant as the case may be, amounts payable in respect of loss or expense incurred by other persons, who may be liable to pay those amounts and the procedure under which these claims for compensation are to be made.
Land Court: reasons for decision under section 92
168.Section 71(a) of the Act amends section 92(5) of the 2003 Act to provide that the Land Court is required to issue a written statement of reasons within 8 weeks of the hearing of the appeal. Section 71(b) introduces a new subsection (5A) which provides that where the Land Court considers that it is not reasonable to issue a written statement within 8 weeks, it must notify the parties to the appeal of the date by which it will issue its written statement.
169.Section 71(d) of the Act inserts subsections (6A), 6B) and (6C) into section 92 of the 2003 Act. Section 92(6A) provides that the person who appeals to the Scottish Land Court in connection with the valuation of the land on an application must notify Ministers in writing within 7 days of the date the appeal is made. Section 92(6B) provides that the Land Court is required to send to Ministers a copy of the written statement of reasons issued following the appeal decision. Section 92(6C) states that failure to comply with these requirements will have no effect on the crofting community’s right to buy the land, the tenant’s interest or the sporting interests, or the validity of the appeal.
Register of Crofting Community Rights to Buy
170.Section 94 of the 2003 Act provides what information is to be made publicly available in the Register of Crofting Community Rights to Buy. Section 72 of the Act amends section 94 of the 2003 Act. Section 94(2) of the 2003 Act provides that the name and address of a crofting community body which is a company limited by guarantee must be recorded in the Register. Section 72(2)(b) of the Act extends the provisions and provides that crofting community bodies which are Scottish charitable incorporated organisations or community benefit societies must have their names and addresses recorded in the Register.
171.Section 72(3) of the Act inserts subsections (2A) and (2B) into section 94 of the 2003 Act which require a crofting community body to notify the Crofting Commission of a change to the crofting community body’s name or registered or principal office as soon as is reasonably practicable after the change has been made.
Meaning of creditor in standard security with right to sell
172.Section 73 of the Act introduces a new section 97ZA to the 2003 Act, which provides a definition, for the purposes of Part 3 of the 2003 Act, of a creditor in a standard security with a right to sell land.