The Commission is unable to comment on current ‘live’ cases. However, with the increased focus on common grazings, grazings committees and shareholders, we do think that it is a good time to remind shareholders in common grazings what their rights are and what the duties of the grazings committee and their grazings clerk are.
The Crofting Commission wants to encourage good shared management of common grazings to help foster stronger communities, deliver economic benefits and to reduce the likelihood of these areas being abandoned or overgrown. The role of common grazings is central to the crofting system and properly constituted grazings committees are the most effective way to safe guard the future common grazing land for the benefit of all crofters.
We would like to provide a brief overview of the key points that everyone with an interest in crofting and common grazing should understand. Many crofters may feel that the process is overly bureaucratic but the Commission is carrying out what is contained in the Crofting Acts and regulating crofting within current legislation.
Crofters who share in a common grazing have certain rights over the land. These rights, or pertinents, include the grazing of stock, access to a house or pier or foreshore, an area for laying up a boat, the right to collect seaware, the right to cut peat and the right to use heather and grass for thatching. These rights, shared with others, are over the whole area comprising the common grazing. There are also certain common grazings used as arable machairs, particularly in the Western Isles, where the crofters may have a right of cropping.
The Crofting Acts state that the only way these rights can be changed is:-
- If the landlord resumes an area of the grazings for a reasonable purpose and the shareholders are compensated for their loss and obtain a share of the development value of the resumed land
- An individual gets an apportionment when his souming may be adjusted
- If shareholders enter into a forestry project in terms of either section 50 or 50A of the Crofters (Scotland) Act 1993 (“the Act”)
- If the Land Court has agreed to a scheme for development under section 19A of the Act which is binding on all parties
- If the majority of the shareholders voting and the grazings committee or constable have obtained the Commission’s consent to use part of the grazings for some other purpose under section 50B of the Act
- Through compulsory purchase by an acquiring authority with powers of compulsory purchase under section 37 of the Act, subject to compensation and share in the development value as with resumption
- By a reorganisation scheme under section 38 of the Act
Any other local grazings arrangement is not binding on shareholders who, if they choose to do so, retain the right to graze stock equivalent to their souming over the whole grazings. The grazings committee and clerk should ensure that any shareholder wishing to use the grazings is accommodated.
The most important thing that shareholders in a common grazings need to understand is that the grazings committee act as trustees of the shareholders.
The Scottish Land Court has stated that:-
…”they (that is the grazings committee) have clear duty to act as trustees of the whole shareholders in the grazings and therefore it is their duty to act impartially and judicially, keep in view what is their paramount consideration – how the common grazings can best be administered to the greatest advantage of all of the tenants sharing in the grazings”…
The general responsibilities of the Committee are to:-
- Make regulations (which require to be confirmed by the Commission) and should be in the spirit of their primary duty to accommodate the requirements of all shareholders. Regulations cannot themselves curtail the right of any shareholder to graze his souming across the whole grazings other than in the circumstances detailed under the paragraph entitled ‘Shareholders’ or to meet any specific environmental designations
- Hold an annual general meeting at which the clerk should give an account of the work of the committee and of the financial position. At this meeting the committee should answer the questions of the shareholders whom they represent
- Maintain the grazings and any fixed equipment. They can do this without reference to the shareholders and they should claim back any costs incurred from each of the shareholders whether they are actively using the common grazing or not.
- Should the committee wish to carry out any improvements to the grazings they cannot do so unless they have served notice on each shareholder and told them how much the shareholder’s proportion of the cost will be. This gives the shareholder the opportunity to make representations against any such proposal to the Commission.
As trustees, any money received by the committee belongs to the shareholders and should be distributed to them as soon as is reasonably practicable. It is not the township’s or the committee’s money and as such it is the duty of the grazings clerk to distribute any money received from whatever source, but in particular resumptions, according to each individual shareholder’s share entitlement whether or not they are active in the grazings. It is important that all monies are distributed to all shareholders timeously in order to assist correct financial accounting by each individual shareholder should they require to make an annual return to the HMRC
When the grazings committee require monies to maintain the common grazings and the fixed equipment or to carry out works for improvements, the committee must levy and recover the required monies directly from the shareholders for onward payment to any third parties.
The rights of crofters have been detailed above and there is no explicit provision in the Crofting Acts for the grazings committee or clerk to be involved in the administration or coordination of schemes falling within the provisions of IACS regulations. Any involvement or concern regarding this should be directed to the scheme administrators.
Development, renewables, or putting a common grazings to other purposeful use are covered elsewhere in the Crofting Acts and require particular actions to validate them. Village improvement works are not within the auspices of the Crofting Acts. These activities should be kept separate from any activity relating to grazings regulations and should ideally be administered by some sort of community company or organisation. Any monies relating to these activities should be lodged in a separate bank account and administered in an appropriate way. Should townships wish to do this they should set up a separate, appropriate, mechanism to do so and gather in any necessary funds from those willing to participate. Anyone becoming involved in such activity needs to seek their own advice on the implications.
The Crofting Commission is keen to see, wherever possible, that crofting communities regulate themselves. It is important therefore that shareholders and the committee hold a meeting to discuss how to work together to ensure the grazings committee functions within the requirements of the Crofting Acts. We have created a standard set of regulations to give clearer guidance for committees and shareholders about how their common grazings is regulated.
For further information please visit our website: www.crofting.scotland.gov.uk/common-grazings or phone 01463 663439.