CROFTING REFORM PROPOSALS FOR LEGISLATION
5 ENCOURAGING CROFTER FORESTRY
5.1 The Crofter Forestry (Scotland) Act 1991 originated as a Private Members Bill and was the subject of intense negotiation between crofting and land-owning interests. The terms of the 1991 Act were subsequently consolidated in the Crofters (Scotland) Act 1993. It provides that, having obtained the necessary approval from the Crofters Commission and consent from the landlord, a common grazings committee "may plant trees on, and use as woodlands any part of the common grazings in accordance with the approval and consent". Similarly the Act amended the definition of "cultivate", as it applies to the statutory conditions relating to crofting tenure, to include the planting of trees and the use of the land as woodlands. A landlord may apply to the Scottish Land Court for authorisation to resume land so that it may be used, let or feued for planting. However, the Act also provides that a landlord may not competently apply to the Court for authority to resume land planted by a Grazings Committee for as long as it continues to be used as woodlands. It further affirms that the landlord has a continuing right to cut or take timber except timber and other trees planted by the crofter or a predecessor in the tenancy or which may be necessary for ornament or shelter. All of this has greatly helped crofters to diversify into crofter forestry.
Weaknesses of the present arrangements
5.2 But some uncertainties remain with the present legislation. There are four main issues which impede the development of crofter forestry schemes:
- The meaning of the phrase "use as woodlands" in the Act and in particular what this implies for crofters rights to cut trees for timber and sell the timber.
- Doubt over the application of the legislation to creation of woodlands through regeneration.
- Landlord's consent for planting on inbye land.
- Landlord's consent for planting on common grazings.
And cutting across all of these is the related issue of the landowner's rights in woodlands on his or her land including the right to resume land for planting.
Principles for reform
5.3 Reform should follow these guiding principles:
- The rights of crofters and landlords should be clarified.
- There should be an opportunity for crofter tenants to appeal to the Scottish Land Court where a landlord either fails to respond to an application or withholds consent.
- There should be no doubt as to the rights of crofters in relation to crofters woodlands.
5.4 The Land Reform Policy Group (LRPG) recommended that there should be legislation to clarify the right of crofters to plant trees on their land and to give them a clear right to exploit the trees they plant for timber and other purposes including the right to sell the timber and timber products. The aim is to provide that where a crofter forestry scheme has been created the crofter (or crofters where the scheme is on a common grazing) has the exclusive right to cut, abstract, use and sell the timber and other forestry products derived from the woodlands created through the scheme. It should further provide that this should be the case whether the woodlands were planted by the crofter or were the result of a regeneration scheme.
5.5 Following consultation with the Crofting Consultative Panel, these principles have been developed as follows:
- Woodlands created through Crofter Forestry will be open to multiple use, insofar as that is permitted under the rules of any grant scheme which funded the creation of the woodland in the first place. Such uses should include cutting, removing, selling and replacing trees, together with the collection of trimmings, fallen timber, foliage, flowers, fruit, seeds and nuts for use or sale, grazing animals under the tree cover and using the woodland for recreational purposes.
- Crofter woodlands created by regeneration rather than by planting will be treated in the same way as woodlands created wholly by crofter planting.
- Where there are existing established trees in the area to become crofter woodlands, these will remain the property of the landlord unless stated otherwise. For a woodland scheme to work best, these trees should become part of the forestry scheme. Legislation will allow either for the landlord to take an interest in the scheme in proportion to the numbers of trees owned by him as against the numbers planted, or expected through regeneration, or, where agreement is not possible, for the crofters concerned with the scheme to purchase those trees at a current valuation.
- Where a landlord withholds consent for creation of a woodland on Common Grazings, or does not respond to an application by crofters for such a woodland, the crofters concerned will be able to request the Scottish Land Court to determine whether the proposal should proceed.
- The rules of grant schemes should be changed to bring landlord's consent provisions into line with consent provisions under crofting legislation as modified by this proposed legislation.
- The relationship between sporting rights and pest control rights should be clarified and grazings committees should be given a right to take or shoot deer in accordance with the provisions of the Deer Act where these deer are causing damage in enclosed areas of crofter forestry on the common grazings. This right should be consistent with the existing right that applies to enclosed woodlands on crofts and farms.