The Rights of Crofters and the Duties of Grazings Committees and their Grazings Clerks

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 Joyce Wilkinson cowsgrazings 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.

Shareholders

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.

Grazings Committees

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 Common Grazingsto 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.

Financial management

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.

When is a grazings share deemed to be a croft?

Many crofters may be unaware that following the purchase of croft land, any associated common grazings shares, which remain tenanted, are deemed to be a separate and distinct croft in their own right for the purposes of the Crofters (Scotland) Act 1993.

This is to ensure that the right to graze is still subject to crofting controls and regulations, which is why many owner-occupier crofters will have received several Crofting Census forms to complete and return to the Commission for both their croft and for their grazings share.

The Crofting Commission has completed, as it is required to by crofting legislation, the separation of crofts and deemed crofts (grazings shares and, where appropriate, apportionments) in the Register of Crofts. 1,952 deemed crofts now have their own separate entry as a croft with their own unique register number. Where the croft has to be registered in Registers of Scotland’s Crofting Register, the deemed croft will have to be registered separately.

The practicalities of having a deemed croft has little implication for crofters in that the grazings shares remain active. However, when it does become important is with the sale or transfer of a croft and croft succession on the death of a crofter.

Where an owner-occupier crofter sells or transfers their croft, only the owner-occupied croft will transfer to the new owner. The deemed croft (whether it is a right to graze or an apportionment) remains held in tenancy and it can only be transferred by making an assignation application to the Commission. Similarly, any let or short lease of the     owner-occupied croft will not include the deemed croft. It is not uncommon for a deemed croft, comprising a right to graze in a common grazings, to be forgotten about in the sale of a croft.

The other situation where deemed crofts can cause problems is in connection with the transfer of crofting interests on death. Executors should identify whether the crofting interests of the deceased crofter include a deemed croft. Where the deceased crofter purchased their croft, any right to graze or apportionment that was not included in the purchase will be a deemed croft, and will be deemed to be held in tenancy.

Executors need to be aware that any deemed croft must be transferred in terms of the Succession (Scotland) Act 1964 and it is recommended that legal advice is sought. If the deemed croft is not transferred within 24 months of the crofter’s death, or 24 months after the Commission was notified of the death (which must be within 2 months of the date of death), the executor may lose the ability to transfer the deemed croft and the landlord may terminate the tenancy of the deemed croft. The Commission may also then take steps to declare the deemed croft to be vacant.

www.crofting.scotland.gov.uk

Spotlight On…

The Spotlight On is to provide a snapshot and insight into Assessor’s lives and regions.

This month the spotlight is on Joyce Wilkinson.

Joyce is the Assessor for Kilmonivaig, Kilmallie, Arisaig & Moidart, North Morar District of Glenelg and the Small Isles.

Joyce lives on a 9ha croft which is one of several small crofts in the township of Bunacaimb in Arisaig, the croft also has shares in the common grazing.

The croft has been in Joyce’s late father’s family for over 250 years and her Mum, Beatrice lives next door in the original croft house.  The croft consists of machair soil running down to the beach and back onto a common grazing of peat and heather. Joyce keeps 5 registered Luing cows that calve to the Simmental bull.

Joyce said, “I also have a small 18 pitch caravan site, and two self-catering cottages, that are very busy throughout the season. The caravan site shop sells local meat, eggs and home-made tablet.  The meat is mostly from Highland bullocks that I buy in, store, take them through to finishing and take to the nearest abattoir on Mull.  I stay on the croft with my daughter Roslin, who is 14, and my 24 year old son Calum is studying in Glasgow.

When I am not looking after the cows and caravan site I also keep a small breeding herd of Highland ponies and like to get away to shows now and then.”

“As an Area Assessor I enjoy being able to meet local crofters and help them with some of the complexities of croft regulation, from croft registration to filling in the new crofting census, Assessors have a role to play in helping active crofting continue.”

Joyce is also a Grazing clerk for the Back of Keppoch, Glenan, Achnaskian Etc Common Grazings and a Director of the Scottish Crofting Federation and of the local Community Trust.

Spotlight On…

The Spotlight On is to provide a snaphsot and insight into Assessor’s lives and regions.

The spotlight is on Sandy Murray, Area Assessor for Farr.Sandy

Sandy was born and brought up in Strathalladale, Sutherland and is tenant of 4 crofts, totalling 360 hectares, which form part of Bighouse Estate. Sandy took over the crofts from his father in 1975, in a family tradition of crofting which goes back several generations. There are 30 hectares of grass land and 83 hectares of forestry, with the remainder consisting of rough grazing of heather upland. Sandy also has shares on the Halladale and Havaig common grazing which is designated as a Site of Special Scientific Interest (SSSI) and a Special Area of Conservation (SAC). Sandy has been an Assessor with the Crofting Commission since the late 1970’s.

Sandy runs 300 North Country Cheviot sheep and 22 spring-calving cows. The 83 ha of forestry are made up of conifer and broadleaved plantings, shelterbelts, some amenity and Christmas trees. More recently Sandy has installed a 20kw wind turbine on one of his crofts, providing power for his home and feeding into the national grid.

Sandy has converted the old Corn Mill, which is situated on one of his crofts, into a Bunkhouse, with a view to providing affordable and comfortable accommodation for visitors to the area. The mill was built in the early 1800s by Sandy’s ancestors and was active until around 1926, milling oats for the crofters of Halladale, Reay and Melvich. Activities that visitors can take part in are Laser Combat and Clay Pigeon Shooting.

As well as his Assessors role, Sandy is also a Grazing Clerk, Chairman of North Sandy 1Sutherland Community Forest Trust, Chairman of the NFUS Crofting Committee, sits on the LFA Committee and the Dyslexia Working Group and serves on the North West Sutherland Football association, along with a few other local committees.

Welcome to the Crofting Commission’s Blog!

The Crofting Commission are entering the blogosphere! 

Key members of the crofting community will be blogging here with regular features by the Crofting Commissioners and staff and guest bloggers from our partner organisations.  We will be blogging about key issues affecting crofting today and topical debates which are of interest to crofters and crofting communities across Scotland.