5Enforcement of duties(1)

The 1993 Act is modified as follows.

(2)

In section 26B (enforcement of duties of crofters and owner-occupier crofters: general), in subsection (4), after “26D” insert “, 26DA”.

(3)

For section 26C and section 26D substitute—

26CNotice of suspected breach of duty(1)

The Commission must, unless they consider that there is a good reason not to, give the relevant person a notice—

(a)

informing the person that the Commission consider that the duty is not being complied with,

(b)

indicating that the person may, before the expiry of the period of 28 days beginning with the day on which notice is given to the person, either—

(i)

make representations to the Commission, or

(ii)

give an undertaking to comply with the duty before the expiry of such period as the Commission consider reasonable.

(2)

The notice must—

(a)

explain the reasons why the Commission consider that the duty is not being complied with,

(b)

explain—

(i)

that the giving of the undertaking by the person constitutes acceptance by the person that the duty is not being complied with,

(ii)

what the person must do to comply with the undertaking, and

(iii)

that if the person complies with the undertaking accepted by the Commission, no further action will be taken against the person in respect of the failure to comply with that duty,

(c)

explain that the Commission may decline to do anything in relation to an application made under this Act in which the relevant person has an interest (see subsection (3)),

(d)

explain the consequences for failure to—

(i)

make representations to the Commission, or

(ii)

give an undertaking, and

(e)

where given to a crofter, be copied to—

(i)

the Land Court, and

(ii)

the landlord of the croft.

(3)

Where a notice is given to a person under subsection (1), the Commission may decline to do anything in relation to an application made under this Act in which the relevant person has an interest until—

(a)

the Commission are satisfied the duty is being complied with, or

(b)

any of the circumstances mentioned in section 26E(ca)(i), (d)(i), (e)(i) or (f)(i) apply.

(4)

Subsection (3) has effect—

(a)

despite any duty imposed on the Commission under this Act to do anything in relation to an application made to them before the end of a specified period, and

(b)

the period is to be treated as beginning on the occurrence of either of the events mentioned in paragraph (a) or (b).

(5)

Where a notice is given to a person under subsection (1) and the Commission decline to do anything in relation to an application by virtue of subsection (3) the Commission must (as soon as reasonably practicable) notify the applicant of their decision to decline to do anything in relation to the application (and the reason for that decision).

26DProcedure following expiry of notice period if no undertaking is given(1)

This section applies if, following a notice given under section 26C(1)—

(a)

the period specified in section 26C(1)(b) has expired, and

(b)

the relevant person has not given an undertaking to the Commission to comply with the duty.

(2)

In deciding whether the duty is being complied with, the Commission—

(a)

must have regard to any representations received within the period specified in section 26C(1)(b),

(b)

may also have regard to any representations received after the period specified in section 26C(1)(b),

(c)

may, if the relevant person fails to make representations, infer that that failure constitutes acceptance by the person that the duty is not being complied with.

(3)

If the Commission decide that the duty is not being complied with—

(a)

if the Commission received representations within the period specified in section 26C(1)(b) they must, before taking any action under section 26H or 26J, give the relevant person a further notice giving the person an opportunity to give an undertaking to comply with the duty before the expiry of such period as the Commission consider reasonable,

(b)

if the Commission did not receive representations within the period specified in section 26C(1)(b) they may, before taking any action under section 26H or 26J, give the relevant person a further such notice.

(4)

The notice must—

(a)

explain—

(i)

that the relevant person must give the undertaking before the expiry of the period of 28 days beginning with the day on which the notice is given,

(ii)

that the giving of the undertaking by the person constitutes acceptance by the person that the duty is not being complied with,

(iii)

what the person must do to comply with the undertaking, and

(iv)

that if the person complies with the undertaking accepted by the Commission, no further action will be taken against the person in respect of the failure to comply with that duty, and

(b)

where given to a crofter, be copied to the landlord of the croft.

26DAProcedure if undertaking is given(1)

This section applies if the relevant person gives an undertaking to the Commission following—

(a)

a notice given under section 26C(1), or

(b)

a notice given under section 26D(3).

(2)

The Commission may—

(a)

accept the undertaking—

(i)

subject to such conditions as they consider appropriate,

(ii)

without conditions, or

(b)

reject the undertaking.

(3)

If an undertaking is accepted by the Commission but, at a later time, the Commission become satisfied that either—

(a)

it is not practicable to comply with the undertaking (the “original undertaking”), or

(b)

the relevant person may take other steps to comply with the duty which differ from the steps specified in the original undertaking,

the Commission may accept a modified undertaking subject to such conditions as they consider appropriate or without conditions.

(4)

In section 26E (circumstances where the Commission may not take action under section 26H or 26J), for paragraphs (a) to (c), substitute—(a)

the period specified in the notice under section 26C or (as the case may be) section 26D for the giving of an undertaking has not expired,

(b)

the Commission has accepted an undertaking under section 26DA and the period for complying with the undertaking has not expired,

(c)

such an undertaking has been complied with,

(ca)

in the case of a crofter—

(i)

the Commission have consented to the assignation of a croft under section 8, or

(ii)

an application to assign has been made under section 8 and has not yet been determined,

(5)

In section 26J (owner-occupier crofters: letting procedure), in subsection (4), for “(as soon as is reasonably practicable) proceed” substitute “, unless they consider that there is good reason not to, proceed (as soon as is reasonably practicable)”.

(6)

In section 26K (appeals)—

(a)

in subsection (1), for “26C(5)” substitute “26D”,

(b)

after subsection (1), insert—(1A)

A relevant person may appeal to the Land Court against a decision of the Commission under section 26C(3) to decline to do anything in relation to an application made under this Act.

(c)

in subsection (2) for “26D” substitute “26DA”,

(d)

in subsection (5), for “subsection (2) or (3)” substitute “this section”,

(e)

in subsection (6), for “subsection (2) or (3)” substitute “this section”.

(7)

In section 52 (miscellaneous provisions as to common grazings, as to lands held runrig, and as to use by crofters of peat bogs, etc.), after subsection (1D), insert—(1DA)

Where a requirement is imposed on a person under subsection (1C) or (1D)(a)(ii), the Commission may decline to do anything in relation to any application made under this Act in which the person has an interest (whether the requirement imposed relates to the application or otherwise) until the Commission are satisfied either that the requirement has been complied with or that it is not practicable to comply with the requirement.

(1DB)

Subsection (1DA) has effect despite any duty imposed on the Commission under this Act to do anything in relation to an application made to them before the end of a specified period.

(1DC)

Where subsection (1DA) applies, the period mentioned in subsection (1DB) is to be treated as beginning on the occurrence of the Commission becoming satisfied either that the requirement has been complied with or that it is not practicable to comply with the requirement.

(1DD)

Where a requirement is imposed on a person under subsection (1C) or (1D)(a)(ii), and the Commission decline to do anything in relation to an application by virtue of subsection (1DA)—

(a)

the Commission must (as soon as reasonably practicable) notify the applicant of their decision to decline to do anything in relation to the application (and the reason for that decision),

(b)

section 52A applies as if the decision to decline to do anything with the application were a decision of the Commission on an application to them under this Act.