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Calum MacLeod is a partner in the rural economy team at law firm Harper Macleod, specialising in crofting law
With the summer’s rural show season well under way, it’s a good time for us to look at what is happening in crofting law and land reform.
It’s likely that crofting reform will move up the Scottish Government’s agenda and there are a number of issues I think need to be reviewed.
The ambiguous term "owner occupier" crofter should be looked at to avoid a situation where crofters owning crofts inadvertently have invalid title deeds, or it transpires they are not legally treated as “owner-occupiers”.
Succession should be clearly re-framed to explain the differing rules which apply to the transfer of croft tenancies on the death of a crofter. Similarly, the process relating to the 24-month timescale on intestate succession should be reviewed.
The duties under the Crofters (Scotland) Act 1993 should be consolidated and restated clearly in legislation.
The obvious question is whether the crofting communities, other stakeholders, and the Scottish Government, can reach agreement on whether a package of legislative changes is required, or whether any crofting reform touches on wider policy questions surrounding crofting that are being debated in communities throughout the Highlands and Islands. This includes policies to tackle depopulation.
Some stakeholders want the Crofting Commission to have greater regulatory powers in selling croft tenancies. Reversely, others argue owner-occupier crofters should be entitled to escape the regulatory duties that go along with crofting by way of decrofting their crofts as a whole.
The Scottish Government previously delayed crofting reform on the basis of insufficient agreement. My hope is that consensus can be found on amending legislative issues whether or not we all agree on policies for crofting communities.
Land reform in a net zero nation
Away from crofting reform, there has been significant debate about the Scottish Government consulting on land reform for large scale transfer of land, in anticipation of a new land reform bill and potentially increased regulation.
Subject to the views expressed in response to this consultation and only impacting larger holdings over the size of 3,000 hectares, this bill will cover a range of areas including the introduction of compulsory management plans, and increased transparency in relation to land ownership and use.
The effect of Natural Capital?
The consultation is said to be as a result of the impact of natural capital on land values and the rural land market in Scotland. One emerging trend is the value associated with carbon and natural capital (Woodland and Peatland Restoration Schemes which create value as a result of “carbon units”) which is contributing to soaring demand.
Reports suggest demand is leading to an increase in off-market forestry and plantable land transactions, accounting for as many as a third of sales in 2020.
The Scottish Government has clearly recognised this in the consultation and is keen to ensure that the increase in land values benefit communities as whole.
Natural capital presents opportunities and it would be wrong to presume these opportunities are not for crofting communities, and easy to dismiss them as being for the larger estates or landowners. Crofters and crofting communities should be mindful of the opportunities that may be available to them.
Harper Macleod lawyers will be at a number of rural shows over the summer. We hope to see you there.
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