Planning Considerations

When considering the relative costs and benefits of development on croft land, the Commission’s key considerations are that:

• The siting of the development does not unreasonably restrict the flexibility to cultivate and move stock on the remaining croft land. 
• The siting of the development does not unreasonably restrict access to the remaining croft land and that a minimum of 4m access to all residual area is maintained. 
• The siting of the development avoids the better quality soils of the croft.
• The development does not have a detrimental impact on the area of land available for agricultural activity and therefore on the agricultural viability of the croft.

The Crofting Commission will consider proposals in detail at the decrofting stage, and reserves the right to review the extent to which these issues have been taken into account at the planning stage. In addition the Commission will consider the following issues:

1. The effect of the purpose on the sustainability in the locality of the croft on:- 

• Crofting
• The crofting community
• The landscape
• The environment

2. The effect of the purpose on the social and cultural benefits associated with crofting.

3. Where the purpose relates to a development of the croft for which planning permission has been obtained, the Commission may, notwithstanding the existence of planning permission, take into account the effect the proposed development would have on the:-

• Croft
• Estate
• Crofting community in the locality of the croft

The Duties of a Crofter:

A crofter must be ordinarily resident on, or within 32 kilometres of the croft;

A crofter must not misuse or neglect the croft;

The crofter must cultivate the croft; or put it to another purposeful use.

In addition to these well known duties, crofters should be aware of their obligations to meet the requirements known as the 'Conditions of Tenure'. These conditions include; payment of rent, upkeep of any buildings on the croft, and providing equipment to allow the croft to be cultivated. 

The Conditions of Tenure (or Schedule 2 Conditions)

1. The crofter shall pay his rent at the terms at which it is due and payable.

2. The crofter shall not, except in accordance with the provisions of this Act, execute any deed purporting to assign his tenancy. (no S.3)

4. The crofter shall provide such fixed equipment on his croft as may be necessary to enable him to cultivate the croft'

5. The crofter shall not, to the prejudice of the interest of the landlord, injure the croft --

(a) by allowing the dilapidation of buildings;

(b) where the croft is cultivated, by allowing, after relevant notice, the deterioration of the soil; or

(c) where the croft is put to some other purposeful use, by actings prejudicial to that use being actings carried out after relevant notice.

5A In sub-paragraphs (b) and (c) of paragraph 5 above, "relevant notice" means notice given by the landlord to the crofter not to do, or not to allow, a particular thing or not to engage in a particular course of conduct (being a thing or course of conduct specified in the notice and relevant to the deterioration or prejudice in question).

6. The crofter shall not sublet his croft or any part thereof otherwise than with the consent in writing of the Commission and in accordance with such conditions (which shall not include conditions relating to rent) as the Commission in giving their consent may impose: Provided that nothing in this paragraph shall be construed as debarring a crofter from subletting any dwelling-house or other building forming part of his croft to holiday visitors.

6A The crofter shall be responsible for ensuring, where the croft is sublet, that the subtenant adheres to the statutory conditions.

7. The crofter shall not, except in accordance with the provisions of this Act, divide his croft.

8. The crofter shall not, without the consent in writing of the landlord, erect or suffer to be erected on the croft any dwelling-house otherwise than in substitution for a dwelling-house which at the commencement of this Act was already on the croft: Provided that, if at the commencement of this Act there was no dwelling-house on the croft, the crofter may erect one dwelling-house thereon. 265 Paragraphs 3, 3A and 3B repealed by Schedule 4, paragraph 3(37)(a) to the 2010 Act. Crofters (Scotland) Act 1993 as amended by the Crofting Reform etc Act 2007 (asp 7), the Crofting Reform (Scotland) Act 2010 (asp 14), and the Crofting (Amendment) (Scotland) Act 2013 177

9. The crofter shall not ... violate any written condition signed by him for the protection of the interest of the landlord or of neighbouring crofters which is legally applicable to the croft and which the Land Court shall find to be reasonable.

10. The crofter shall not do any act whereby he becomes apparently insolvent within the meaning of the Bankruptcy (Scotland) Act 1985.

11. The crofter shall permit the landlord or any person authorised by the landlord in that behalf to enter upon the croft for the purpose of exercising (subject always to the payment of such compensation as in case of dispute the Land Court may find to be reasonable in respect of any damage done or occasioned thereby) any of the following rights, and shall not obstruct the landlord or any person authorised as aforesaid in the exercise of any of such rights, that is to say—

(a) mining or taking minerals, or digging or searching for minerals;

(b) quarrying or taking stone, marble, gravel, sand, clay, slate or other workable mineral;

(c) using for any estate purpose any springs of water rising on the croft and not required for the use thereof;

(d) cutting or taking timber or peats, excepting timber and other trees planted by the crofter or any of his predecessors in the tenancy, or which may be necessary for ornament or shelter, and excepting also such peats as may be required for the use of the croft;

(e) opening or making roads, fences, drains and water courses;

(f) passing and re-passing to and from the shore of the sea or any loch with or without vehicles for the purpose of exercising any right of property or other right belonging to the landlord;

(g) viewing or examining at reasonable times the state of the croft and all buildings or improvements thereon;

(h) hunting, shooting, fishing or taking game or fish, wild birds or vermin; but nothing in this paragraph shall be held to preclude the crofter from recovering any compensation for damage by game which is recoverable under section 52 of the Agricultural Holdings (Scotland) Act 1991, or by virtue of section 53)(3) of the Agricultural Holdings (Scotland) Act 2003 (asp 11) by a tenant.

11A Nothing in paragraph 11 above shall be held to allow, or require the crofter to allow, the landlord, or any person authorised by the landlord, to exercise unreasonably a right enjoyed by virtue of that paragraph.

12. The crofter shall not on his croft, without the consent in writing of the landlord, open any house for the sale of intoxicating liquors.

13. In this Schedule— "game" means deer, hares, rabbits, pheasants, partridges, grouse, blackgame, capercailzie, ptarmigan, woodcock, snipe, wild duck, pidgeon and teal;

_{266 The definitions of “cultivate” and “purposeful use” in this paragraph are repealed by Schedule 4, paragraph 3(37)(b) to the 2010 Act. They are substantially re-enacted in new section 5C(8).} 

_{*SCHEDULE 2:  THE STATUTORY CONDITIONS, CROFTERS (SCOTLAND) ACT 1993, as amended by the Crofting Reform etc Act 2007 (asp 7), the Crofting Reform (Scotland) Act 2010 (asp 14), and the Crofting (Amendment) (Scotland) Act 2013}

If you have any queries please contact the Development Team.

Email: development@crofting.gov.scot