Office of Public Sector Information
PART 2 continued CHAPTER 6 continued
(1) An appeal may be made to the Lands Tribunal against the decision of Ministers on compensation under section 63 above.
(2) The Lands Tribunal may, on such an appeal, substitute its decision for that of Ministers.
(3) Such an appeal shall be lodged within 21 days of the decision appealed against.
(1) Any rights of pre-emption, redemption or reversion otherwise exercisable over land in which a community interest has been registered are—
(a) suspended as from the date when the community body sends the confirmation sought by Ministers under section 49(2)(a) above of its intention to buy the land; and
(b) revived—
(i) when the transfer under this Part of this Act of the land to the community body is completed; or
(ii) if such a transfer is not completed because the community body does not (by virtue of declining, under section 54 above, to buy the land or for any other reason) proceed to buy the land.
(2) Any rights which a person has in land over which a community interest has been registered, being rights conferred on the person under—
(a) Part 3 of this Act;
(b) section 12 of the Crofters (Scotland) Act 1993 (c. 44);
(c) any order under that Act of the Land Court in favour of the crofter;
(d) the provisions of Part III of the Housing (Scotland) Act 1987 (c. 26) relating to a person’s right to purchase the house of which the person is a tenant,
are suspended as provided in paragraph (a) of subsection (1) above but revived in the circumstances set out in paragraph (b) of that subsection.
(3) Nothing in this Part of this Act—
(a) affects the operation of an inhibition on the sale of the land;
(b) prevents an action of adjudication from proceeding; or
(c) affects the commencement, execution or operation of any other diligence.
After subsection (3) of section 4 of the Land Registration (Scotland) Act 1979 (c. 33) (applications for registration) there shall be added—
“(4) Where an application is not accepted by the Keeper on the ground that he has not been provided with sufficient evidence to confirm that it does not relate to a transfer which is prohibited by section 40(1) of the Land Reform (Scotland) Act 2003 (asp 2), or by virtue of section 37(5)(e) of that Act, the Keeper shall, subject to subsection (5) below, provide the Scottish Ministers with a copy of the application and notify them of the reason for which the application has been rejected.
(5) Subsection (4) above does not apply where the application has been rejected by reason only of the application not being accompanied by a declaration required under section 43(2) of that Act of 2003.”.
(1) Any reference in this Part of this Act (other than a reference in subsection (2) below) to land in which a community interest has been registered includes a reference to part of such land.
(2) Subsection (1) above shall not operate so as to enable a right to buy land to be exercised by a community body in relation to part only of the land in respect of which the right has arisen.
(3) Any reference in this Part of this Act to a creditor in a standard security with a right to sell land is a reference to a creditor who has such a right under—
(a) section 20(2) or 23(2) of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35); or
(b) a warrant granted under section 24(1) of that Act.
(1) The land which may be bought under this Part of this Act is eligible croft land.
(2) In this Part of this Act, “eligible croft land” means—
(a) land within the meaning of “croft” given by section 3 (meaning of “croft” and “crofter”) of the Crofters (Scotland) Act 1993 (c. 44) (“the 1993 Act”) together with any land or right which is deemed by subsections (4) or (5) of that section to be a croft or part thereof (including arable machair and scattalds);
(b) any land in which a tenant of a croft, whether alone or in common with others, has a right of pasture or grazing;
(c) any land—
(i) comprising any part of a common grazing held by a tenant of a croft; or
(ii) held runrig by a tenant of a croft,
which has not been apportioned for the exclusive use of a tenant of a croft under section 52 of the 1993 Act; and
(d) any land which consists of salmon fishings in inland waters within or contiguous to, or mineral rights (other than rights to oil, coal, gas, gold or silver) in, land referred to in paragraphs (a) to (c) above (including any such fishings or rights which are owned separately from that land).
(3) Eligible croft land does not, however, include any croft occupied or worked by its owner or a member of its owner’s family.
(4) In subsection (3) above, the reference to a croft being occupied includes—
(a) a reference to its being occupied otherwise than permanently; and
(b) a reference to its being occupied by way of the occupation by its owner of any dwellinghouse on or pertaining to it.
(5) In this Part of this Act, “inland waters” has the same meaning as in the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 (c. 26).
(1) A crofting community body may apply, under section 73 below, to buy eligible croft land which consists of salmon fishings or mineral rights only—
(a) where—
(i) it is simultaneously applying; or
(ii) it has made an application in respect of which Ministers have not made a decision,
to buy the croft land to which such fishings or rights relate; or
(b) during the relevant period.
(2) Such an application may be made during the relevant period only where the crofting community body—
(a) has provided confirmation under section 85(1) below of its intention to proceed to buy the croft land to which the fishings or rights relate; or
(b) has bought and retained that related croft land in accordance with the provisions of this Part of this Act.
(3) In subsection (1) above, “relevant period” means the period beginning with the date on which Ministers consented to the application under section 73 below to buy the croft land to which the fishings or rights relate and ending—
(a) where the crofting community body does not proceed to exercise its right to buy that related croft land, on the date on which it withdraws, under section 85(2) below, its confirmation to so proceed; or
(b) where the crofting community body has bought and retained that related croft land—
(i) in relation to salmon fishings, one year; or
(ii) in relation to mineral rights, five years,
after the date on which the crofting community body bought that land.
(1) Where eligible croft land is being bought under this Part of this Act eligible additional land may also be so bought.
(2) Where eligible croft land is being, or has been, bought under this Part of this Act eligible sporting interests may, subject to subsection (3) below, also be so bought.
(3) Where the crofting community body have bought, and retained ownership of, eligible croft land in accordance with the provisions of this Part of this Act it may, within the period beginning with the date on which Ministers consented to the application under section 73 below to buy the eligible croft land and ending 5 years after the date on which the crofting community body bought that land, apply under that section to buy eligible sporting interests which have not previously been leased by the crofting community body under section 83 below.
(4) In this Part of this Act—
“eligible additional land” means, in relation to a crofting community body, land—
any part of which is contiguous to the eligible croft land which is being bought by the body; and
owned by the owner of such eligible croft land,
other than land which consists of salmon fishings in inland waters within or contiguous to, or mineral rights in, such land; and
“eligible sporting interests” means the rights of a person other than the owner of eligible croft land under any lease or other contract to shoot or fish on the land.
(5) The definition of “eligible sporting interests” in subsection (4) above does not include any right under a lease of salmon fishings in inland waters within or contiguous to eligible croft land.
(1) A crofting community body is, subject to subsection (4) below, a company limited by guarantee, the memorandum and articles of association of which include the following—
(a) a definition of the crofting community to which the company relates;
(b) provision enabling the company to exercise the right to buy land and sporting interests under this Part of this Act;
(c) provision that the company must have not fewer than 20 members;
(d) provision whereby the majority of the members of the company is to consist of members of the crofting community;
(e) provision whereby the members of the company who consist of members of the crofting community have control of the company;
(f) provision ensuring proper arrangements for the financial management of the company and the auditing of its accounts;
(g) provision that any surplus funds or assets of the company are to be applied for the benefit of the crofting community; and
(h) provision that on the winding up of the company and after satisfaction of its liabilities, its property (including any land and sporting interests acquired by it under this Part of this Act) passes—
(i) to such other crofting community body or community body as may be approved by Ministers; or
(ii) if no other such body is so approved, to Ministers or to such charity as Ministers may direct.
(2) Ministers may, if they think it in the public interest to do so, disapply the requirement specified in subsection (1)(c) above in relation to any body they may specify.
(3) In subsection (1) above, “company limited by guarantee” has the same meaning as in section 1(2)(b) of the Companies Act 1985 (c. 6).
(4) A body is not a crofting community body unless Ministers have given it written confirmation that they are satisfied that the main purpose of the body is consistent with furthering the achievement of sustainable development.
(5) A crofting community shall be defined for the purposes of subsection (1)(a) above—
(a) as those persons who—
(i) are resident in the crofting township which is situated in or otherwise associated with the croft land which the crofting community body has a right to buy under this Part of this Act; or
(ii) being tenants of crofts in that crofting township, are resident in any other place within sixteen kilometres of that township,
and who are entitled to vote in local government elections in the polling district or districts in which that township or, as the case may be, that other place is situated; or
(b) if, in Ministers' opinion, it is inappropriate so to define the crofting community, in such other way as Ministers approve for the purposes of this paragraph.
(6) In subsection (5)(a)(i) above, “crofting township” means—
(a) any two or more crofts which share the right to use a common grazing together with that common grazing and any houses pertaining to or contiguous to those crofts or that common grazing; or
(b) any combination of two or more crofting townships within that meaning.
(7) The memorandum and articles of a company which is a crofting community body may, notwithstanding the generality of paragraph (h) of subsection (1) above, provide that its property may, in the circumstances mentioned in that paragraph, pass to another person only if that person is a charity.
(8) In this section, “charity” means a body which is entitled, by virtue of section 1(7) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40), to describe itself as “a Scottish charity”.
(1) A crofting community body which has bought land under this Part of this Act shall not, for as long as the land remains in its ownership, modify its memorandum or articles of association without Ministers' consent in writing.
(2) If Ministers are satisfied that a body which has so bought land would, had it not so bought that land, no longer be entitled to do so, they may acquire the land compulsorily.
(1) The right to buy under this Part of this Act may be exercised only by a crofting community body.
(2) That right may be so exercised only with the consent of Ministers given on the written application of the crofting community body.
(3) That right may be exercised in relation to more than one holding of land or sporting interests but in order so to exercise the right an application must be made in respect of each such holding and applications so made may be differently disposed of.
(4) In subsection (3) above, a “holding” of land or of a sporting interest is land in the ownership of one person or in common or joint ownership or a sporting interest to which one person is entitled or to which there is a common or joint entitlement.
(5) Such an application shall be made in the prescribed form and shall include or be accompanied by information of the prescribed kind including information (provided, where appropriate, by or by reference to maps or drawings) about—
(a) the location and boundaries of the land or sporting interests in respect of which the right to buy is sought to be exercised (the “subjects of the application”);
(b) all—
(i) rights and interests in the subjects of the application;
(ii) sewers, pipes, lines, watercourses or other conduits and fences, dykes, ditches or other boundaries in or on the land,
known to the applicant body or the existence of which it is, on reasonably diligent inquiry, capable of ascertaining;
(c) whether the crofting community body proposes to exclude from the eligible croft land which it proposes to buy—
(i) salmon fishings in inland waters within or contiguous to; or
(ii) mineral rights in,
the land;
(d) whether the crofting community body proposes a leaseback of sporting interests under section 83 below;
(e) the proposed use, development and management of the subjects of the application;
(f) whether and how the matters referred to in paragraph (e) above would affect any of the facilities referred to in paragraph (b)(ii) above insofar as those facilities connect with similar facilities on other land or also serve other land; and
(g) the extent to which the matters referred to in paragraph (e) above would consist of or support the sustainable use or development of the subjects of the application, including any land or sporting interests previously acquired by the crofting community body.
(6) A crofting community body applying under this section shall, at the same time as it applies—
(a) send a copy of its application to the owner of the subjects of the application; and
(b) where there is a standard security over an interest in any subjects to which the application relates, send a copy of its application and the accompanying information to the creditor who holds the standard security and invite the creditor—
(i) to notify the crofting community body and Ministers, within 60 days of receipt of the invitation, if any of the circumstances set out in subsection (7) below has arisen (or arises within 60 days of receipt of the invitation); and
(ii) if such notice is given, to provide Ministers, within that time, with the creditor’s views in writing on the application.
(7) Those circumstances are that—
(a) a calling-up notice has been served by the creditor under section 19 of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35) in relation to the subjects in which the crofting community body is seeking to exercise its right to buy or any part of those subjects and that notice has not been complied with;
(b) a notice of default served by the creditor under section 21 of that Act in relation to those subjects or any part of those subjects has not been complied with and the person on whom the notice was served has not, within the period specified in section 22 of that Act, objected to the notice by way of application to the court;
(c) where that person has so objected, the court has upheld or varied the notice of default; and
(d) the court has granted the creditor a warrant under section 24 of that Act in relation to those subjects or any part of those subjects.
(8) On receipt of an application, Ministers shall—
(a) invite—
(i) the owner of or, as the case may be, person entitled to the subjects of the application;
(ii) the owners of all land contiguous to land which consists of the subjects of the application;
(iii) the Crofters Commission; and
(iv) any other person whom Ministers consider to have an interest in the application,
to send them, so as to be received not later than 60 days after the sending of the invitation, views in writing on the application; and
(b) send a copy of the invitation to the crofting community body.
(9) If the subjects of the application include land other than eligible croft land, the invitation given under subsection (8)(a)(i) above shall seek the consent of the owner of that eligible additional land to its sale under this Part of this Act.
(10) Ministers shall, as soon as may be after receiving an application, give public notice of it and of the date by which, under subsection (8)(a) above, views are to be received by them and, in that notice, invite persons to send to Ministers, so as to be received by them not later than 60 days after the publication of the notice, views in writing on the application.
(11) That public notice shall be given by advertisement—
(a) in such newspaper circulating in the area where the subjects of the application are situated as Ministers think appropriate; and
(b) in the Edinburgh Gazette.
(12) Ministers shall—
(a) send copies of any views they receive under this section to the crofting community body; and
(b) invite it to send them, so as to be received by them not later than 60 days after the sending of that invitation, its responses to these views.
(13) Ministers shall, when considering whether to consent to an application under this section, have regard to all views on it and responses thereto which they have received in answer to invitations under this section.
(14) Ministers shall decline to consider an application which—
(a) does not comply with the requirements of or imposed under this section;
(b) is otherwise incomplete;
(c) discloses that the subjects of the application, or any part of them, are not within the respective definitions in sections 68 and 70 above; or
(d) otherwise indicates that it is one which Ministers would be bound to reject;
and Ministers shall not be required to comply with subsections (8) to (13) above in relation to such an application.
(15) Ministers shall not reach a decision on an application before—
(a) the date which is 60 days after the last date on which the crofting community body may provide Ministers with a response to the invitation given under subsection (12) above; or
(b) if by that date the Land Court has not advised Ministers of its finding on any question referred to it under section 79(2) or 81(1) below in relation to the application, the date on which the Land Court provide Ministers with that finding.
(1) Ministers shall not consent to an application under section 73 above unless they are satisfied—
(a) that the croft land to which the application relates is eligible croft land;
(b) that any additional land to which the application relates is eligible additional land;
(c) that any eligible additional land is to be bought only at the request or with the consent of its owner;
(d) that any salmon fishings to which the application relates are eligible croft land;
(e) that any mineral rights to which the application relates are eligible croft land;
(f) that any sporting interests to which the application relates are eligible sporting interests;
(g) that the subjects of the application have not previously been bought under this Part of this Act and disposed of by the crofting community body;
(h) that the owner is not—
(i) prevented from selling the subjects of the application; or
(ii) subject to any enforceable personal obligation (other than an obligation arising from any right mentioned in section 84(1) below), or order of the Land Court, to sell them otherwise than to the crofting community body;
(i) that the crofting community body complies with the provisions of section 71 above;
(j) that the exercise by the crofting community body of the right to buy under this Part of this Act is compatible with furthering the achievement of sustainable development;
(k) that, where the subjects of the application are salmon fishings, mineral rights or sporting interests, the crofting community body has or is acquiring sufficient croft land to enable those subjects to be exploited so as to support the development of the crofting community defined in relation to that body in pursuance of section 71 above;
(l) that the crofting community so defined are, in relation to the subjects of the application, an appropriate crofting community;
(m) that the crofting community so defined have approved the proposal to exercise the right to buy; and
(n) that it is in the public interest that the right to buy be exercised.
(2) For the purposes of subsection (1)(n) above, the public interest includes the interest of any sector (however small) of the public which, in the opinion of Ministers, would be affected by the exercise of the right to buy, and such a sector includes a community as defined for the purposes of section 34(1)(a) above and a crofting community as defined for the purposes of section 71(1)(a) above.
(1) The crofting community, defined in pursuance of section 71 above in relation to the crofting community body which has applied to buy land or sporting interests, are to be taken for the purposes of section 74(1)(m) above as having approved a proposal to buy if—
(a) a ballot of the members of the crofting community so defined has, during the period of six months which immediately preceded the date on which the application was made, been conducted by the crofting community body on the question whether the crofting community body should buy the land or sporting interests; and
(b) the majority of—
(i) those voting; and
(ii) the members of the crofting community so defined who voted and who are tenants of crofts within the land which the crofting community body has applied to buy or, as the case may be, within land over which the sporting interests which the crofting community body has applied to buy may be exercised,
have voted in favour of the proposition that the crofting community body exercises its right to buy.
(2) The ballot shall be conducted as prescribed; and the provisions prescribed shall include provision for the ascertainment and publication of the number of persons eligible to vote in the ballot, the number who did vote and the numbers of valid votes respectively cast for and against the proposition.
(3) If the ballot is not so conducted, the crofting community body’s right to buy the land or sporting interests which are the subject of the body’s application is, so far as proceeding on that application, extinguished.
(4) The crofting community body which conducts a ballot shall, within 21 days of the ballot (or, if its application under section 73 above is given before the expiry of that period, together with the application) and in the prescribed form of return, notify—
(a) the result;
(b) the number of persons eligible to vote;
(c) the number of those persons who are tenants of crofts within the land which the body proposes to buy;
(d) the number of persons who voted and the number of those persons who are such tenants; and
(e) the number of persons who voted in favour of the proposal to buy and the number of those persons who are such tenants,
to Ministers.
(5) Any person who, whether alone or in common with others—
(a) has a right of pasture or grazing, or holds a common grazing, within the land which the crofting community body has applied to buy or, as the case may be, within land over which the sporting interests which the crofting community body has applied to buy may be exercised; or
(b) holds any part of that land runrig,
is, for the purposes of this section, to be regarded as a tenant of a croft within the land which the body proposes to buy.
(1) Only one crofting community body may exercise the right under this Part of this Act to buy the same land or sporting interests.
(2) Where two or more such bodies have applied to buy the same land or sporting interests, it is for Ministers to decide which is to proceed.
(3) Ministers may not make such a decision unless they have had regard to all views on each of the applications, and responses thereto, which they have received in answer to invitations under section 73 above.
(4) On Ministers so deciding—
(a) the other body’s right to buy the land or sporting interests which are the subject of the body’s application is, so far as proceeding on that application, extinguished; and
(b) they shall notify—
(i) the owner of the land or person entitled to the sporting interests; and
(ii) the bodies,
of that fact.
(1) Where the owner of any eligible additional land to which an application under section 73 above relates has not requested, or consented to, the sale of that land Ministers shall refer to the Land Court the question of whether the eligible additional land may be bought by the crofting community body without the consent of its owner.
(2) In considering any question referred to it under subsection (1) above, the Land Court may have regard to any representations made to it by—
(a) the applicant crofting community body;
(b) the owner of the land which is the subject of the application; or
(c) any other person who, in the opinion of the Land Court, appears to have an interest.
(3) On a reference under subsection (1) above the Land Court may determine that eligible additional land may be purchased by the crofting community body without the consent of its owner (and such determination shall have the same effect as if Ministers had been satisfied as to the matter referred to in section 74(1)(c) above) but only if the court is satisfied—
(a) that the purchase of the eligible additional land by the crofting community body is essential to the development of the crofting community;
(b) that such development is compatible with furthering the achievement of sustainable development;
(c) that the purpose to which that land would be put cannot reasonably be achieved by means within the powers of the Court other than by its purchase under this Part of this Act by the crofting community body;
(d) that where that land forms part of an area of land all of which is in the same ownership, the purchase of the land will not seriously jeopardise the continued use and management of the remaining land; and
(e) that that land does not exceed, in area, whichever is the greater of—
(i) 10 hectares; or
(ii) 5 per cent of the combined area of the land and any croft land being bought or which had previously been bought under this Part of this Act by the crofting community body.
(4) Where the Land Court determine, under subsection (3) above, that eligible additional land may be purchased by the crofting community body without the consent of its owner it may provide that Ministers shall, under section 80 below, make their consent to the application subject to the imposition, on transfer of the land, of such conditions upon the title to the land as the Court may specify.
(5) If the Land Court considers that the purpose to which eligible additional land or any part of it is proposed to be put can be substantially achieved by imposing conditions upon the title to that land, it may make an order—
(a) approving the purchase of the land sought to be bought but not the eligible additional land or that part of it; and
(b) providing that Ministers shall, under section 80 below, make their consent to the application subject to the imposition of such title conditions as the Court considers appropriate on the eligible additional land or, as the case may be, that part of it.
(6) An order under subsection (5) above has the same effect as Ministers being satisfied as to the matter set out in section 74(1)(c) above.
(7) The references in subsections (4) and (5) above to conditions upon the title to the land include references to real burdens and servitudes.
Land Reform (Scotland) Act 2003