Prospective
(1)The 1993 Act is modified as follows.
(2)In section 48 (powers and duties of grazings committees)—
(a)for subsection (4) substitute—
“(4)Where a determination has been entered into the Register of Crofts in accordance with section 50ZA, the grazings committee may—
(a)plant trees on, and use as woodlands, any part of the common grazing, or
(b)use any part of the common grazing for an environmental purpose,
in accordance with the determination (but see subsection (6)).”,
(b)in subsection (6), for “planted with trees and used as woodlands” substitute “used—
(a)as woodlands, or
(b)for an environmental purpose.”.
(3)For section 50 (use of common grazings for forestry purposes), substitute—
(1)Subsection (2) applies where a grazings committee or any crofter who holds a right in the common grazing, proposes that the committee should, in exercise of their power under section 48(4)—
(a)plant trees on, and use as woodlands, any part of the common grazing, or
(b)use any part of the common grazing for an environmental purpose.
(2)The grazings committee must apply to the owner of the common grazing requesting consent to the proposed use of the part of the common grazing concerned.
(3)The owner may, on an application under subsection (2), decide to—
(a)grant consent—
(i)subject to reasonable conditions,
(ii)without conditions, or
(b)refuse consent on (and only on) the grounds that implementation of the proposal would—
(i)adversely affect the exercise of any rights which the owner has under or by virtue of schedule 2,
(ii)prevent an intended resumption by virtue of section 20(1),
(iii)be detrimental to the sound management of the estate which comprises the land,
(iv)cause hardship to a crofter who shares in the common grazing,
(v)cause the owner hardship, or
(vi)lessen the amenity of (either or both)—
(A)the land,
(B)its surrounding area.
(4)A decision under subsection (3) must—
(a)specify the part of the common grazing to which it relates,
(b)where the decision is to grant consent subject to reasonable conditions, specify—
(i)the conditions,
(ii)the reasons for imposing the conditions, and
(iii)the reasons for which the owner considers the conditions to be reasonable,
(c)where the decision is to refuse consent, provide reasons explaining the basis of the refusal by reference to the grounds mentioned in subsection (3)(b), and
(d)be given to—
(i)the grazings committee, and
(ii)the Commission.
(5)If the owner does not make a decision under subsection (3) (and in accordance with subsection (4)) within the period of 8 weeks beginning with the day on which the application is made, the owner is deemed to have decided to grant consent, without conditions, to the proposed use of the part of the common grazing.
(6)The reference in this section and section 50ZA to using any part of the common grazing as woodlands is to having the right to exclusive economic and recreational use, including (but not limited to)—
(a)felling, removing, selling and replacing the trees in question,
(b)collecting trimmings, fallen timber, foliage, sap, flowers, fruit, seeds or nuts for use or sale,
(c)grazing animals in the woodlands, and
(d)selling timber, timber products and other forestry products.
(7)The reference in this section and section 50ZA to using any part of the common grazing for an environmental purpose, includes (but is not limited to) using the land for—
(a)peatland restoration,
(b)habitat creation and restoration,
(c)water management (for example, the making or improving watercourses, ponds or wells),
(d)preserving, protecting, restoring, enhancing or otherwise improving the natural heritage or environment,
but may not include using the land for the generation, transmission or storage of energy.
(8)But subsections (6) and (7) are without prejudice to any person’s access rights (within the meaning of Part 1 of the Land Reform (Scotland) Act 2003).
(9)Consent granted or deemed to be granted under this section is of no effect unless confirmed by the Commission under section 50ZA and entered into the Register of Crofts (see section 50ZA(8)).
(10)Without prejudice to the generality of subsection (7), the Scottish Ministers may by regulations modify that subsection to add, amend, remove or exclude a use.
(1)This section applies where—
(a)the grazings committee has made an application under section 50(2) to the owner of a common grazing requesting consent to—
(i)plant trees on, and use as woodlands, any part of the common grazing, or
(ii)use any part of the common grazing for an environmental purpose, and
(b)the owner, either—
(i)makes a decision under section 50(3), or
(ii)fails to make a decision under that section within the period of 8 weeks beginning with the day on which the application is made.
(2)The grazings committee must apply to the Commission for a determination that the decision under section 50(3), or deemed decision under subsection (5) of that section, is reasonable.
(3)The Commission may determine that the decision, or deemed decision, is—
(a)reasonable, or
(b)unreasonable.
(4)Where the Commission determine that a decision to refuse consent is unreasonable, the Commission may determine under subsection (3) that the consent is to be deemed given—
(a)subject to conditions, or
(b)without conditions.
(5)In relation to a decision of an owner to grant consent but subject to a condition the Commission may, if it is not satisfied that the condition is reasonable, determine under subsection (3) that the consent is to be deemed given—
(a)without the condition, or
(b)subject instead to a condition specified in the determination.
(6)Where the Commission determine that a decision, or deemed decision, of an owner to grant consent without conditions is unreasonable the Commission may determine under subsection (3) that—
(a)the consent is to be deemed given subject to conditions, or
(b)the consent is deemed to be refused.
(7)A determination under subsection (3) which determines the decision, or deemed decision, of the owner to grant consent is reasonable or (as the case may be) determines consent is to be deemed given must specify—
(a)the part of the common grazing to which the consent granted or deemed to be granted relates,
(b)the conditions (if any) of such consent.
(8)A determination under subsection (3) which determines the decision, or deemed decision, of the owner to grant consent is reasonable or (as the case may be) determines consent is to be deemed given—
(a)takes effect on being entered in the Register of Crofts,
(b)on being entered is binding on the successors to the owner’s interest.
(9)But any determination under this section which determines the decision, or deemed decision, of the owner to grant consent is reasonable or (as the case may be) determines consent is to be deemed given ceases to have effect if the use of the part of the common grazing to which the determination relates has not commenced on the expiry of the period of 5 years beginning with the date on which the determination is entered in the Register of Crofts.
(10)Where a determination specifies a condition that land be fenced, or otherwise enclosed, any expenditure incurred in complying with that condition (including expenditure incurred in connection with maintenance, repair or renewal) must be met—
(a)in a case where the applicant is the grazings committee, by that committee, and
(b)in any other case, jointly and severally by the crofters or owner-occupier crofters sharing in the common grazing.
(11)Section 58A, as modified by subsection (12) of this section, applies to the Commission making a determination under subsection (3) as it applies to the Commission making a decision in respect of an application for approval or consent.
(12)The modifications referred to are that—
(a)subsection (6) is omitted,
(b)in subsection (7)—
(i)paragraph (a) is omitted,
(ii)after paragraph (f), insert—
“(fa)the decision by the owner under section 50(3) (including, where the decision is to refuse consent, the reasons provided by the owner explaining the basis of the refusal),”,
(c)for subsection (12A), substitute—
“(12A)The Commission must give notice of a determination made under section 50ZA(3) to—
(a)the grazings committee,
(b)the owner, and
(c)any person who objected under subsection (4) or (5A).”.”.
(4)After section 50A (joint forestry ventures etc.), insert—
(1)A crofter who holds a right in a common grazing, or a grazings committee, may, with the agreement of the Commission, enter into a written agreement with the owner of the common grazing to engage in a joint venture to use any part of the common grazing for an environmental purpose (within the meaning of section 50).
(2)The agreement is binding on the parties to it and their successors (but see subsection (4)).
(3)Where an agreement is entered into under subsection (1), a copy of that agreement must be lodged with the Commission.
(4)The persons who for the time being are bound by the agreement in question may by written agreement lodged with the Commission under this subsection amend the agreement lodged under subsection (3) (or as the case may be that agreement as last amended under this subsection).”.
(5)In section 50B (use of common grazing for other purposes)—
(a)in subsection (1)—
(i)the “or” immediately after paragraph (a) is repealed,
(ii)after paragraph (b), insert “, or
(c)an environmental purpose.”,
(b)for subsection (2), substitute—
“(2)The use proposed must not be such as would be substantially detrimental to the use being made, as at the time of application, of the other parts of the common grazing.”,
(c)in subsection (4)—
(i)in paragraph (a)(i), “by registered post” is repealed,
(ii)paragraph (d) is repealed,
(d)subsection (5) is repealed,
(e)after subsection (6), insert—
“(6A)An approval given in respect of an application made under subsection (6)—
(a)takes effect on being entered in the Register of Crofts, and
(b)on being entered is binding on the successors to the owner’s interest.
(6B)But any approval given by the Commission ceases to have effect if the use of the part of the common grazing to which the approval relates has not commenced on the expiry of the period of 5 years beginning with the date on which the approval is entered in the Register of Crofts.”.
(6)In section 53(1) (jurisdictional provisions), paragraph (e) is repealed.
(7)In section 60(3) (regulations and orders), in paragraph (b), after “section 5C(8B)” (inserted by section 2(5)) insert “, section 50(10) or”.
Commencement Information
I1S. 25 not in force at Royal Assent, see s. 66(2)