Tag Archives: owner-occupiers

Crofting Commission make a U-turn on Decrofting Appeal to the benefit of many owner-occupiers

Crofting Commission make a U-turn on decrofting appealThe Crofting Commission today confirmed that it has withdrawn its appeal to the Court of Session in connection with the Scottish Land Court’s decision of 18 December 2014 in the case of MacGillivray v Crofting Commission. That case concerned the Crofting Commission’s policy on decrofting where a croft unit is held in multiple ownership.

On 14 December 2012 Crofting Commissioners agreed to adopt a policy that all decrofting and letting applications in respect of crofts with multiple owners, must be submitted by all the owners, in their capacity collectively as the ‘landlord’ of the croft, even in those cases where the application related to a part of the croft held in title by only one of their number. This decision was based on legal advice obtained by the Crofting Commission but never published by them.

This is a sensible decision by the Crofting Commission and puts the position back to what it was before they decided on 14 December 2012 to interpret crofting law in a way that I do not believe was ever intended by the Scottish Government. The Land Court decision was a clear, sensible and fair one and it makes much sense for the Crofting Commission to abide by it.

There will be a huge sense of relief amongst owner-occupiers of croft land who are not classified in law as owner-occupier crofters. They can now apply to decroft land that they own without requiring the consent of neighbours who happen to be owners of part of the original croft unit. The lack of such consent in certain instances was causing huge problems for many who have been in a state of limbo for over two years now.

The Crofting Commission in their official press release have stated:-

Due to the fixed deadline for submitting an appeal, the Crofting Commission submitted a skeleton appeal to provide it with sufficient time to convene the full Commission and allow it to discuss the implications of the decision.

The Commission met last week to review the case and it was decided to withdraw the appeal and accept the ruling of the Land Court which establishes that a single owner, as the landlord of their part of the croft, are entitled to submit a regulatory decrofting application to the Commission.

The Crofting Commission had originally found Mr & Mrs MacGillivray’s application to decroft land at 37 North Ballachulish for house building to have been incompetent, therefore, the Commission could not take a decision on it.  The recent Scottish Land Court ruling found the application to be competent.  No decision has been made yet on the merits of the application which the Commission will now have to reconsider.

The case challenged the Commission’s policy which was adopted at its Board meeting on 14 December 2012.  The policy found that all decrofting and letting applications in respect of crofts with multiple owners, must be submitted by all of the owners, in their capacity collectively as the ‘landlord’ of the croft.

The Land Court has ruled that in a multiple ownership situation one of the owners can apply independently from the other owners where the application solely relates to the land that they own.

Crofting Commission Convener, Susan Walker said “The ruling has implications on part croft owners in relation to the requirement to register the croft prior to submitting certain regulatory applications.  The Commission is working to align our policy to the ruling and will begin to process applications relating to part crofts from single owners.”

Brian Inkster

Decrofting uncertainty continues as Crofting Commission take case to the Court of Session

Court of SessionThe Crofting Commission last week lodged a request that a special case be stated on a question of law for the opinion of the Court of Session in connection with the Land Court’s decision of 18 December 2014 in the case of MacGillivray v Crofting Commission. That case concerned the Crofting Commission’s policy on decrofting where a croft unit is held in multiple ownership.

On 14 December 2012 Crofting Commissioners agreed to adopt a policy that all decrofting and letting applications in respect of crofts with multiple owners, must be submitted by all the owners, in their capacity collectively as the ‘landlord’ of the croft, even in those cases where the application related to a part of the croft held in title by only one of their number. This decision was based on legal advice obtained by the Commission but never published by them.

For the past two years many people have been affected by this policy decision and have been unable to decroft and thus develop land they own if a neighbour who happens to own part of the original croft unit is not willing to consent to the proposed development taking place. Mr & Mrs MacGillivray were in that very position. Their application to decroft land at North Ballachulish for house building had been rejected by the Crofting Commission because it did not have the consent of the landlord of that part of the original croft unit that remained in tenancy. Mr & Mrs MacGillivray referred the matter to the Scottish Land Court who decided that the Crofting Commission were wrong and it was competent for an owner of part of a croft to seek to decroft without requiring the consent of any other owners of the original croft unit. The Land Court took the view that the reference to a croft in the Crofting Acts applied equally to part of a croft.

The Land Court’s decision will have come as a relief to many who have been affected by the Crofting Commission’s policy. However, any hopes of an early resolution to their own predicaments have been dashed by the Crofting Commission appealing that decision to the Court of Session. It is now likely to be many months before a ruling is issued that will settle the matter once and for all.

Many crofting lawyers, including myself, have long held the view that the Crofting Commission’s policy was not a correct interpretation of the law. At the outset I called on this matter to be resolved before the Land Court by the Commission or action to be taken by the Scottish Government to do so. It is a pity that one affected party (there are many) has had to take the Crofting Commission to task over this whilst others have been left in limbo for over two years.

The Land Court’s decision was a clear, sensible and fair one. Even if the Court of Session ultimately were to take a different view, affected parties will continue to lobby the Scottish Government to amend crofting legislation to allow those who own croft land to be able to apply to decroft at their own instance. It is a problem that was highlighted in the final Crofting Law Sump Report as a priority one for the Scottish Government to tackle. They may, of course, not have to tackle it if the Court of Session agrees with the Land Court’s interpretation of the law.

Brian Inkster

Owner-Occupier Crofters

Derek Flyn

Derek Flyn

This is a guest blog post by Derek Flyn who is a retired crofting lawyer and an administrator of the Crofting Law Sump. It was written by Derek on 23 October 2013 so reflects his thoughts on owner-occupier crofters as the law stood at that date.

For this article, it would be best that the reader has available to him a copy of the Crofters (Scotland) Act 1993 as amended by 2007 Act and by 2010 Act and by 2013 Act [PDF].  However it is necessary to discuss how some of the provisions of the 1993 Act came into being.

Whilst there appears to have been no mechanism specifically designed to keep track of the ownership of the estates of landlords in whole or in part, changes in occupation of crofts required to be recorded in the Register of Crofts.  This was especially true of vacant crofts and section 16 of the 1955 Act, now section 23 of the 1993 Act, made provisions in respect of vacant crofts, somewhat unusually placing a burden on every crofting landlord.  There was imposed on the landlord an obligation to inform the Commission about any croft that became vacant  [1955 Act, s 16(1); now 1993 Act, s 23(1)]. Failure to do so was to be met by criminal sanction on summary conviction [1955 Act, s 16(10); now 1993 Act, s 23(2)].

Whilst launching the statutory purchase provisions for tenant crofters, the 1976 Act introduced a rather awkward subsection [1955 Act, s 16(14); now 1993 Act, s 23(12)] declaring that,  for the avoidance of doubt section 23 has effect (and shall be deemed always to have had effect since 27th August 1961) as if (a) a person who has become the owner-occupier of a croft were required under subsection (1) above within one month of the date on which he became such owner-occupier to give notice thereof to the Commission; and (b) any reference in the section other than in subsection (1) above to a landlord included a reference to an owner-occupier”.

The effect was to treat any person who had become the owner-occupier of a croft like a landlord who has a vacant croft (although it is not clear how any sanction could be invoked, if ever it was). It was not necessary to define an owner-occupier by the extent of what he owned because the provision did not differentiate between a part croft and a whole croft [1955 Act, s 16(13) inserted by 1961 Act; now 1993 Act, s 23(11)].

Nor did it seek to differentiate between on the one hand a former tenant crofter who had purchased his own croft and continued to occupy it (or his nominee or successor or a later acquirer of his whole interest) and on the other hand a third party who acquired part of a croft intending to use it or occupy it himself.

These differences did not cause difficulties, because a croft was to be taken to be vacant notwithstanding it was occupied, if it was occupied otherwise than by the tenant of the croft [1955 Act, s 16(11); now 1993 Act, s 23(10) but amended in 2010] and that notwithstanding that the tenant crofter had an approved sub-tenant or had purchased the croft himself.

Any occupancy of a croft outwith an approved tenancy was conclusive that the croft was to be considered vacant. So a crofter who purchased his own croft (albeit encouraged by the 1976 Act to do so) was to be in the same position as the landlord of a vacant croft. This nonsensical approach (to any croft purchased by and which remained in the occupancy of its former tenant) was the source of much confusion and annoyance. Despite the opportunity afforded by the 1993 consolidation, no amendments of policy were to be admitted and no legislative attempt was made to sort it out.

It was not until the 2010 Act that there was statutory recognition that tenant crofters who purchased their croft were apt to continue to occupy their own crofts, and this some 34 years after the purchase provisions had been introduced. They were to be recognised as “owner-occupier crofters” and new sections 19B to 19D were inserted into the 1993 Act specifically to cover their now privileged position.

But all was not well.

Who then is an owner-occupier crofter?

The definition is found in section 19B(1) which provides that a person is an “owner-occupier crofter” if the conditions in subsections (2)-(4) are fulfilled:


The first condition is that the person is the owner of a croft.

The croft: The first problem is what constitutes a croft for this condition to have effect?

The croft needs to be wholly owned.  The whole croft must be owned, identified as a unit. But what does this mean?

One obvious difficulty is that the 1976 purchase provisions did not require the crofter to purchase his whole croft but allowed purchase of part of the croft.

The whole croft would appear to mean, keeping in mind said purchase provisions, (1) the site of the dwellinghouse (if any) and (2) the croft land.  Given the wording of the purchase provisions, can any restricted meaning of croft land be presumed?  For example, does it mean that any apportionments must be owned if they are contiguous and adjacent to the remainder of the croft? One might think not since apportionments are now to have a temporary nature. But the Land Court in an appeal decision by the Full Court as recently as 26 September 2013¹  have opined that, “once granted, an apportionment effectively becomes part of a croft”. It is no help that section 13(3) indicates that, for the purchase provisions, “croft land” includes any land comprising any part of a common grazing that has been apportioned and is adjacent or contiguous to any other part of the croft or consists of arable machair.

Meanwhile, section 3(5) considers the situation where a crofter has acquired his entire croft other than any right in pasture or grazing land and any apportionment. Does such a crofter become an owner-occupier crofter? It seems doubtful that he should be expected to include in his acquisition any right in pasture or grazing land or any apportionment because there is a provision which deems any such unpurchased interest to be held in tenancy until held otherwise. A further provision goes on to deem that interest to be a croft. The Land Court has been “satisfied that the plain intention of sec 3(5) was to allow a grazing share or apportionment which had not been purchased, to be treated as a separate independent croft”².  That being so the person, who now owns the entire croft stripped of that which was not acquired, must be “the owner of a croft”.

Of course, if a croft has been wholly acquired but any part has been conveyed away without decrofting taking place, the person is not the owner of the croft, only the remaining part.

The person:  The second problem is the matter of plurality. There is nothing to suggest that the person must be a singular natural person.

It has been normal for a purchasing crofter to take his title in joint names, for instance himself and his spouse.  If this is permitted, it seems that more than one person can be the owner-occupier crofter of a croft, but those persons must own the entire croft jointly and their title must be in their joint names.

Partial ownership: Persons who own only part of a croft are not considered to be owner-occupier crofters because they cannot satisfy the first condition. Accordingly, they must be regarded as landlords of part of a vacant croft.  Situations like this may have arisen due to the transfer of ownership of parts of a croft on the (mistaken) assumption that the croft would be automatically divided.

It is the clear intention of the 1993 Act, that any division of a croft (whether by a tenant crofter or owner-occupier crofter) can only be effected following an application and subsequent affirmative decision of the Commission. Since 2010, an owner-occupier crofter may not transfer (whether or not for valuable consideration) ownership of any part of the owner-occupier’s croft without first dividing the croft into the part which the owner-occupier crofter proposes to transfer and the part which the owner-occupier crofter proposes to retain³.  Any transfer of ownership of any part of an owner-occupied croft which is not a new croft created by a division under this section, and any deed purporting to transfer ownership of that part, is null and void⁴  and in such a case the Commission can declare the original croft vacant⁵.


The second condition requires that the person (already identified as the owner of the croft):
(a) was the crofter of the croft at the time of acquiring it (or is such a tenant crofter’s successor in title);
(b) acquired title to the croft as the nominee of a crofter (or is such a nominee’s successor in title); or
(c) purchased the croft from the constituting landlord⁶  (or is such a purchaser’s successor in title).

As an aside it will be noted that in some cases acquisition of the landlord’s interest in the croft, where the tenant crofter nominates another person or persons to take title, has avoided the loss of his tenancy. But where that tenancy cannot be held to have continued beyond the date of acquisition, it seems that any person or persons who became the owner of the croft having received the landlord’s interest as nominee of the tenant crofter can claim to be the owner-occupier crofter.


The third condition is that the croft has not been let at any time since it was acquired to any person as a tenant crofter either by an enforced letting of an owner-occupied croft by the Commission or otherwise.

If all the conditions are fulfilled, such a croft is identified as an owner-occupied croft and the properties of an owner-occupied croft therefore attach to the croft itself until it is again a let subject.

But although it is without a tenant, it is not to be taken as being vacant of it is occupied by an owner-occupier crofter. This is stated to be so by subsection 23(10) although it uses a roundabout way of doing so.

Owner-occupier crofters as a sub-set of owner occupiers

Owner occupiers have been recognised by the Crofting Acts since 1976, when they were required to tell the Commission⁷.  The effect of the requirement is not altogether clear although it does say something along the lines that (a) a person who has become the owner-occupier of a croft is required within one month of the date on which he became such owner-occupier to give notice thereof to the Commission and (b) most references to a landlord are to include a reference to an owner-occupier.

But since 2010 this has been qualified by a new subsection 23(12A) which states that where the owner-occupier is an owner-occupier crofter, he must give notice of that fact to the Commission within one month of becoming such an owner-occupier crofter.

It seems that unless or until an owner-occupier crofter gives notice of the fact that he is an owner-occupier crofter, he will not be recognised as such by the Commission.

Not only that, any owner-occupier crofter (or indeed any owner occupier) will be guilty of an offence if he does not inform the Commission within one month of his becoming an owner-occupier crofter (or owner occupier).

If the reader is still with me, then I applaud his tenacity.

It was on Christmas Eve 2012 that I asked myself,
“If an owner-occupier crofter’s croft is not vacant, [subsection 23(10)] then, even if an owner-occupier crofter is to be taken as a landlord, [subsection 23(12A)] then how can subsection 24(3) apply when it reads “Where a croft is vacant, the Commission may, on the application of the landlord, direct that the croft shall cease to be a croft or refuse to grant the application”?

I then asked the Commission,
“On what authority does the Commission deal with an application from an owner-occupier crofter to decroft land?”

The answer is now history. The answer is to be found in the Crofting (Amendment) (Scotland) Act 2013.

Derek Flyn – 23 October 2013


  1. Kennedy v Smith & Crofting Commission SLC/31/12 at [3]
  2. Reference by Crofters Commission under Sec 53 Crofters (Scotland) Act 1993 SLC/121/11 at [23]
  3. 1993 Act, s 19D(1)
  4. 1993 Act, s 19D(6)
  5. 1993 Act, s 19D(7)
  6. as defined in section 19B(6)
  7. i.e. since s 16(4) was added to the 1955 Act by the 1976 Act, now s 23(12) of the 1993 Act

To Buy or Not to Buy?

Buy your croftCroft tenants have enjoyed, since 1976, a right to purchase (1) their croft house and (2) their croft land. These rights differ significantly in that a crofter is ENTITLED to a conveyance of the site of her* croft house, and has a slightly qualified right to purchase her croft land. It is important to distinguish between these two rights during the negotiation of terms and conditions and also the conveyancing to reflect, for example, the different purchase prices for each type of land, and the fact that a landlord can request a security in respect of future claw back and a lease of the sporting rights, over croft land but not a croft house site.

It is interesting to note that the exercise of the right to purchase has differed widely according to geography. The Western Isles, for example, have seen proportionally far fewer croft purchases than on the mainland. These figures are borne out yet again in the latest Crofting Commission Annual Report & Accounts 2013-14.

Reasons to Purchase – 2009

Myself and some other members of the Crofting Law Group delivered a series of lectures to students of Strathclyde University in 2009. I lectured on, amongst other topics, croft purchase, and the reasons I gave at that time for purchase were as follows:-

  1. To remove an uncooperative landlord.
  2. To facilitate the development of the croft – eg. to sell a house site on the open market it is necessary to (a) decroft and (b) obtain a title deed to the site.
  3. Some crofters feel that they have a greater voice politically as owners rather than tenants (although many tenants would use the same argument).
  4. To simplify transferring a croft either within the life of the crofter, or in a crofter’s will:
    a. In a crofter’s lifetime, a croft can be transferred without the consent of the Crofters Commission (as it was in 2009 but now, of course, the Crofting Commission) in respect of the proposed new crofter. The provisions of the Act will still apply, and the Crofters Commission will still regulate in much the same way, but their consent is not required to a transfer.
    b. After death, a croft tenancy can only be left to a single natural person, whereas a croft on a title deed (an owner-occupied croft) can be bequeathed in the same way as other heritable property. Many wills are drafted incorrectly, which could mean (arguably) that the croft in question will fall in to intestacy.

Update for 2015

These reasons still apply, although the development of a croft at (2) above is less significant than it once was, due to both the stance taken on decrofting by the Crofting Commission (who have indicated in the clearest possible terms that they wish to radically reduce the amount of land being decrofted), and also to the extension of the period (to ten years from the date of purchase) during which a former croft landlord can claw back financial benefit obtained by the former crofter by the sale of his croft land.

Furthermore, the 2010 Act provided that a croft tenancy could be left to one person or to more than one person, and so that reason is perhaps less relevant than it once was. That said, I still advise clients to bequeath a tenancy to only one person (or if they wish to bequeath to more than one person, to purchase the croft), because if the Crofting Commission refuse an application by the executor to divide the croft to effect the bequest, the tenancy falls in to intestacy, which is a problem for discussion another day.

For 2015, I would also add that I now find myself advising an increasing number of crofters to purchase to preclude their landlord granting servitude rights over tenanted croft land, in favour of third parties. I cannot account for the increase in landlords doing so, other than to speculate that it is perhaps caused by the ever-increasing value of land in the crofting counties, and perhaps also the increasing financial savvy shown by some landlords.

A landlord can grant servitude rights over tenanted croft land; that much is clear. Suppose a landlord was approached by a third party who owned an area of land adjoining a tenanted croft, and that third party requested the grant of a servitude right of drainage for their septic tank, or perhaps a servitude right of wayleave for a water or electricity supply, over the croft land. The landlord should, of course, seek the consent of his tenant crofter, and perhaps most do, but there is no doubt that some landlords (in my experience an increasing number) either do not seek consent, or they ignore a refusal of consent and grant the servitude regardless.

The crofter’s remedy is then to seek a reduction in her rent. However, every crofter I know would rather retain their original croft, unsullied by the digging of trenches and the uncertainty of whether the neighbour will maintain his septic tank, than a slight reduction in an already low rent. Make no mistake: large areas of croft land could be rendered useless for many months (in the case of a badly maintained septic tank, semi-permanently or permanently) in the event that a landlord grants such rights.

An owner-occupier crofter (and an owner-occupier who is not an owner-occupier crofter) does not have to simply hope that his landlord respects his rights, because she is the one who will be approached by the third party for the grant of the servitude and she may, like any other heritable proprietor, refuse for any reason or for none.

Servitude rights of access carry an even higher degree of risk for a tenant crofter. Perhaps a landlord grants a right to construct a new access road to serve a new residence over tenanted croft land; or perhaps grants a right of access to a third party to use an access road which has been constructed at some expense to the crofter. Both of these actions are grossly unfair to crofters.

Reasons not to Purchase – 2009

The reasons I gave in 2009 against purchasing a croft were as follows:-

  1. Availability of grant assistance.
  2. Feeling of loyalty to the original system of crofting tenure.

Update for 2015

Both of these reasons, to some extent may still influence a crofter’s decision to purchase or not to purchase. Certainly I am aware of a continuing feeling of loyalty to the old system of tenure and this is of course understandable. Whether that explains the lack of take-up in the Western Isles I cannot say, however!

The availability of grant assistance requires a little more explanation, and indeed has inspired its own blog post: Did the 2010 Act Equalise Availability of Crofting Grants? In 2009 grant assistance was certainly a factor in deciding whether to purchase (and indeed may have been the principal factor in deciding whether to do so), but is it still a relevant factor in 2015? After all, the 2010 Act was intended to equalise owner-occupier crofters and tenant crofters, both in terms of the regulatory framework to which they were subject, and also the financial assistance which was available to them.

In short, financial assistance from CCAGS is now available for owner-occupier crofters as well as tenant crofters, but the position with CHGS has not yet been equalised, and crofters purchasing their crofts can only claim this grant within seven years of purchasing their croft – no change from the pre-2010 position. For more discussion on this topic see my separate blog post: Did the 2010 Act Equalise Availability of Crofting Grants?


As ever, the decision whether to purchase will depend largely on an individual crofter’s circumstances. If the crofter has already availed herself of the CHGS, it is difficult to see how purchase could disadvantage her. If the crofter wishes to purchase and is confident of applying to the CHGS within the seven year period, there may be no prejudice. But if a crofter has not yet applied to the CHGS and the building of a croft house is on the back burner for financial or other reasons, yet there is a worry that her landlord may grant servitude rights to third parties, the decision becomes more complex.

*Just to be different, the use of the feminine article is deemed, for the purposes of this blog post, to include the masculine.

Eilidh Ross MacLellan

A pivotal year for Crofting Law

Scottish Legal News Crofting Review 2014This is an article that Brian Inkster wrote for the Scottish Legal News Annual Review 2014:-

2013 was certainly a year to remember in the world of crofting law. It started in February when the Crofting Commission issued a statement concerning decrofting applications made by owner-occupier crofters who occupy their crofts.

The Commission, having taken legal advice on the question of whether or not an owner-occupier crofter can decroft part or all of their croft, stated that they believed the amendments introduced by the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”) did not make provision for an owner-occupier crofter to decroft if he is occupying his croft.

Furthermore, the Commission stated that they had been advised that they would be acting outwith their statutory authority if they approved any application made to decroft, and that no further applications would be considered until a remedy was found, with applications at that time in process being placed in abeyance.

The implications of this were significant to say the least. The Crofting Commission were not only preventing owner-occupier crofters and connected third parties from building houses or carrying out other developments but they were in effect saying that decrofting directions already granted by them may be invalid. If such directions were invalid then, if title deeds had been granted in reliance of those directions, those title deeds would be null and void. This is because applications to divide an owner-occupied croft will not have been made prior to transfer (such applications not being necessary if the land was decrofted but necessary if the land was not decrofted). Banks who had granted mortgages in reliance of such decrofting directions were also exposed.

I looked at the legislation and simply could not see the problem perceived by the Crofting Commission. I published an opinion setting out why the existing legislation clearly provided for decrofting by owner-occupier crofters. To date that opinion has not been openly challenged and the Crofting Commission refused to publish their legal opinion (so no one knows the actual reasoning behind the Commission’s decision to halt processing decrofting applications).

Faced with differing legal opinion the Scottish Government decided to introduce a Crofting (Amendment) (Scotland) Bill and rush it through Parliament with all due haste. The Bill they drafted was, in my opinion, a sledge hammer to crack a nut with the potential to introduce even more unintended consequences into crofting law. I suggested and drafted a shorter version at 621 words rather than 1,700 words. I and the other crofting lawyers who put forward submissions were ignored. The Bill was enacted as originally drafted without any amendment whatsoever during the three stages that it very quickly passed through the Scottish Parliament. The Crofting (Amendment) (Scotland) Act 2013 become law on 31 July 2013 when it received Royal Assent.

The Scottish Government, during the passage of the Bill, continually sidestepped another fairly significant issue that was causing difficulty for many owner-occupiers who were not classed by the 2010 Act as owner-occupier crofters. Back in February the Crofting Commission had also published a statement on decrofting by owner-occupiers who were not owner-occupier crofters. Their view, having obtained legal advice, was that if an original croft unit had been split into different parts each owned by a separate owner-occupier then no one owner-occupier could decroft part of their own land without the consent and concurrence of the neighbouring owner-occupiers. The end result is that if you fall into this category and don’t want your neighbour developing land that they own you can simply prevent them from so doing.

A Scottish Government Official said that he hoped everybody would be able to work together at some point to recognise the benefits by concurring in decrofting applications. Tavish Scott MSP pointed out that “we do not live in a perfect world”. Time has shown that we don’t with several examples arising of owner-occupiers being prevented from developing their land.

This problem could easily have been cured by a minor provision within the Crofting (Amendment) (Scotland) Act 2013. The Scottish Government by ignoring the issue have allowed the problem to manifest itself as time goes on. They may well be forced to consider a further Crofting Amendment Bill to fix it.

During the passage of the latest Bill it became apparent to MSPs that much was wrong with Crofting Law. Many of these problems stem from the fact that the 2010 Act was the result of a Bill that had 230 amendments all dealt with at Stage 3 in less than 3 hours.

Alex Fergusson MSP said “The whole thing seems to me to be a bit like the Hydra—you cut off one head and two others appear. With crofting, we get rid of one problem and two others appear in its place.”

Paul Wheelhouse MSP, Minister for Environment and Climate Change with responsibility for crofting, gave an undertaking that his officials would investigate, in consultation with stakeholders, what the best method might be for dealing with these outstanding issues. That consultation is now on-going.

The Crofting Law Group set up a ‘Sump’ to assist the Government in this process. It is being administered by Derek Flyn, retired crofting lawyer, and Keith Graham, formerly Principal Clerk of the Scottish Land Court. They are collating the issues and problems that are causing difficulties, prioritising them and indicating how the problem can be resolved. Their Report will be made available to the Scottish Government on completion.

From 30th November compulsory registration in the new Crofting Register, held by Registers of Scotland, was introduced for crofts if certain trigger events occur. The Crofting Register is a product of the 2010 Act and already it is being suggested that there may be unintended consequences arising from the drafting of the legislation. More fodder for the ‘Sump’!

2014 will be a pivotal year for crofting law with the publication of the ‘Sump’ Report and hopefully some indication from the Scottish Government as to what they intend doing to clear up the mess that the 2010 Act created.

Brian Inkster

Common Grazings and the Lewis Gathering

Crofting Federation GatheringI was in Stornoway, Isle of Lewis, on 19 and 20 September 2013 for the Scottish Crofting Federation’s annual Gathering. The theme of this year’s crofting conference was Common Grazings: Utilising Potential.

The conference was ably chaired by Derek Flyn and well organised by Patrick Krause and his staff from the Federation. A good and diverse range of speakers made for a very interesting and enjoyable conference. I am not, in this review, going to cover all the talks that were given but will focus on those that had a crofting law aspect as this is, after all, a crofting law blog.

Paul Wheelhouse MSP, Minister for Environment and Climate Change, should have been the keynote speaker but parliamentary business detained him in Edinburgh and his place was taken by David Barnes, Deputy Director of Agriculture and Rural Development.

David told us that the Crofting Commission has a focused not diminished role. Some, I would suggest, might argue with a focus in the wrong places!

Over 80 new crofts have been created in the last 5 years. Mention was made of crofters being allowed to be absent with good cause. My experience does not bear this out. But then my view of good cause may be quite different from that held by the Crofting Commission.

The Scottish Government were disappointed by the number of voluntary registrations on the Crofting Register. Not that surprising. Apart from a token discount for community registrations there was no real incentive to do it voluntarily.

Crofting Federation Gathering (Fair Isle Bunting)

David Barnes referred to the “specific and acute problem” with the 2010 Act that created a flaw in decrofting procedures and resulted in the 2013 Act to remedy that. The Scottish Government were very aware indeed that this is far from being the only issue with crofting legislation. They will be carrying out a consultation later this year. They need to take their time. Owner-occupiers who are not owner-occupier crofters and cannot decroft without the consent of neighbouring landowners may take a different view about the need to take any more time over that particular issue.

On the question of what form legislative reform might take David Barnes asked: “Do we look for where holes are and put patches on them or do we have a root and branch rewrite?” This question is one that is likely to tax MSPs in the coming months (or years perhaps depending on how much time will actually be taken over it).

My own view is that there are pressing issues that need be dealt with sooner rather than later and others where time can be taken. We may need at least two Bills: one within the next year (patching holes) and a more comprehensive one (possibly a rewrite) to follow in the fullness of time.

Julia Aglionby from the Foundation for Common Land told us of some of the differences between Scotland and England & Wales. In England & Wales a shareholder is a commoner. In England & Wales all renewable payments go to the landowners and none to the commoners. Compare crofting shareholders in Scotland who receive 50% of those payments. Less than 5% of common grazings in Scotland are signed up to schemes to assist them. In England more than 80%. Why? We didn’t get any clear answers.

John King of Registers of Scotland gave an update on the Crofting Register. There are 300,000 transactions that pass through Registers of Scotland each year before the new Register of Crofts is counted in. Professor Shucksmith recommended a map based Crofting Register and that is what we now have. The Crofting Register is free to view online. 29 common grazings have been registered on the Crofting Register to date. This is much better than I ever expected by this early stage. 9 crofts have been registered to date. Most with plans produced by crofters themselves. Registers of Scotland can help by providing crofters with OS maps to plot their croft on. Derek Flyn referred to Registers of Scotland having been user friendly with the Crofting Register.

Alister Danter of Business Gateway discussed management structures for crofting communities and mentioned the possibility of crowdfunding.

Iain Maciver from Community Land Scotland told us that freehold land is often favoured over common grazings for development because of crofting issues that arise. Soumings are now relevant more than they were in the past when renewable developments take place on common grazings.

Whilst we were in Stornoway Town Hall other crofting activities were taking place around Lewis for the school children participating in Crofting Connections. The children also sat in on some of the sessions in the Town Hall.

I enjoyed the Gathering and am already looking forward to next year’s one.

Brian Inkster

Decrofting effective after Royal Assent

Queen gives royal assent to Crofting (Amendment) (Scotland) Act 2013

We shall decroft

The Crofting (Amendment) (Scotland) Act 2013 become law on 31 July 2013 when it received Royal Assent. This will have come as a great relief to many owner-occupier crofters who were in decrofting limbo. What will also have been welcoming to those crofters was the speed at which the Crofting Commission, having halted the decrofting process, actually processed applications post 31 July with some decrofting directions being issued during the first week of August. With a 42 day appeal period that means that this coming week (assuming no appeals) many owner-occupier crofters will have effective decrofting directions for the first time since the Crofting Commission stopped accepting and processing applications on 25 February 2013 (i.e. 7 months later).

So relief for owner-occupier crofters but not yet for many owner-occupiers (who are not owner-occupier crofters) if they cannot get consent to decroft from neighbours who happen to be owners of part of what was the original croft unit. They will unfortunately remain in decrofting limbo. I have blogged previously on this blog about the inequity of this situation and will continue to do so in future blog posts.

Brian Inkster

[Photo Credit: The Queen at her Balmoral Estate in Scotland taken by Julian Calder]

Update on ‘alien’ owner-occupiers

Crofting Commission prepare to deal with the owner-occupier aliens

Crofting Commission prepare to deal with the owner-occupier ‘aliens’ on 6 August 2013

In my last post I promised an update on my earlier post about owners of croft land who are aliens to the Crofting Commission.

Well the ‘alien’ I made reference to in that post back on 22 May 2013 is not much further forward. The Crofting Commission have advised the ‘alien’ as follows:-

… the Crofting Commission agreed in December 2012 to adopt a policy that all decrofting and letting applications in respect of crofts with multiple owners must be submitted by all the owners in their capacity collectively as the “landlord” of the croft, even in these cases where the application related to a part of the croft held in title by only one of their number. The implementation of this policy gave rise to a number of queries, including whether a person in situation similar to your own may apply to the Commission for a decrofting Direction. The Crofting Commission has now received legal advice on this matter which, I understand, is to be considered at the Crofting Commission Board meeting to be held on 6 August 2013.  Once the Board has reached a view on this issue, we will then be in a position to update you on how your application may proceed.

Interesting that this policy was apparently adopted by the Crofting Commission in December 2012 as it was only made public by them on 18 February 2013. Before implementing this policy did it not occur to the crofting Commission that you could have a croft unit where part was held in tenancy and part was owner-occupied? Clearly not. Such issues have, it seems, only come to their attention since implementing the policy. Seven months later and they still don’t have a resolution to it. Eight months later and they just might depending upon what Commissioners decide on 6 August 2013.

I am also aware that the ‘alien’ in question is not alone. The crofting commission have ‘aliens’ to contend with. There is likely to be a good number of owner-occupiers who fall into this category. Indeed I highlighted in my last post that Donald and Elizabeth MacGillivray may well turn out to be ‘aliens’ too but their status is currently unknown.

I await the decision of the Crofting Commission on 6 August 2013 with interest but also with some trepidation.

Brian Inkster

[Picture Credit: Aliens – 20th Century Fox]

The Scottish Government knows best about Crofting Law

The Scottish Government knows best about Crofting LawAt the Stage 2 Debate on the Crofting (Amendment) (Scotland) Bill, on 12th June, Alex Fergusson MSP asked:-

Given the issues that have been raised by Sir Crispin Agnew, in particular, about some parts of the bill not matching up with others, if I can use such loose terminology, why have you not seen fit to lodge amendments to address his concerns?

Paul Wheelhouse MSP, Minister for Environment and Climate Change, responded:-

We are aware that there are a number of alternative views about the form and content of the bill, as was discussed during the stage 1 debate. We are aware of those views and respect the opinions of Sir Crispin Agnew and Derek Flyn and others, including Brian Inkster, but we believe that the bill provides the necessary clarity and legal certainty that the owner-occupier crofters and other stakeholders are looking for to allow them to decroft their land. The commission will have the power to consider such applications after the bill is enacted.

The Scottish Government considered the detailed drafting issues that were raised; I can promise the committee that we have gone over them in some detail. However, as it is drafted, the bill achieves its purpose. A number of key witnesses to the committee, such as Sir Crispin Agnew, and the Crofting Commission, through David Balharry and Derek Flyn, all agreed that the bill delivers on the purpose that the Government has set out of giving owner-occupiers the ability to decroft.

The Scottish Government is committed to drafting in as plain and accessible a manner as is consistent with achieving the necessary outcome. We all know that crofting law is horrendously complicated: that message came across loud and clear at last week’s debate, and I do not disagree with that conclusion, which was reached by many members. As I said during the stage 1 debate, the key issue is that the provisions in the bill, in its current form, are as close as we could get them to the provisions for tenant crofters. That will enable us to deliver similar treatment, which we all want. I cannot prejudge what the committee will say, but the nature of the debate so far seems to indicate that we want to give owner-occupiers provisions that are similar to those for tenant crofters where appropriate. Obviously, some aspects, especially on land tenure and right to buy, had to be modified, but we are talking about the general provisions. In order to do that, we have kept as close as possible to the original wording of the provisions for tenant crofters.

The bill has therefore taken a particular form. I appreciate that some people are concerned that it could have been simpler, but then there might have been more room for doubt that the provisions were meant to be the same as those for tenant crofters. By taking the view that we have, we have managed to minimise that possibility. I hope that that answers Mr Fergusson’s question.

Alex Fergusson responded:-

It does, and in much more detail than I was expecting; I thank you for that. I just want to clarify that my reason for raising the point was not to question the purpose of the bill or its likely outcome but to look for confirmation, which I think you have given me, that you looked at the technical drafting points that were raised by Sir Crispin Agnew, which were not really questioning the outcome of the bill but questioning whether separate parts of the bill worked together in a way that goes beyond my ken. You have told me clearly that you have looked at all that and are satisfied with the way in which the bill is drafted, and I am quite happy to accept that. It is good to have that on the record.

The position stated by Paul Wheelhouse at Stage 2 is really much the same as when he gave evidence to the Rural Affairs, Climate Change and Environment Committee back on 22nd May (see: length is not everything). But by now we have really moved away from the debate on length. It is clear that the Scottish Government has no intention of rewriting the Bill in more simplistic terms (that is probably too much like hard work in the short time frame available to ensure that the Bill becomes an Act).

However, many of the comments made by Sir Crispin Agnew QC, Derek Flyn, myself and others related to the detail of the Bill in its current form and small tweaks to that necessary to avoid confusion, problems and, in at least one case, to close a loophole that the Scottish Government had inadvertently opened. All of this appears to have been sidestepped. If the Scottish Government did indeed consider “the detailed drafting issues that were raised” and went “over them in some detail” would it not have been good (perhaps essential) to have seen a detailed written rebuttal of each with reasons why the Scottish Government thought the expert crofting law views on each to be of no apparent value? Without that how easy is it for MSPs to easily consider the matter given the complexity of crofting law that they are all ready to acknowledge? They simply have to accept the Minister’s word for it as Alex Fergusson did. But at least he did get it on record and that just might come back to haunt the Minister.

At the Stage 1 Debate comments were made of the fact that the Scottish Government were benefitting from free legal advice from crofting law experts and should be taking advantage of that. As Graeme Dey MSP put it:-

Sir Crispin Agnew offered helpful advice on wording, and it is not often that a learned QC offers advice gratis.

Jamie McGrigor MSP said:-

I am not a lawyer or a legal expert so, like the committee, I can only urge ministers to take on board and address the concerns that have been expressed by eminent figures such as Sir Crispin Agnew QC and Brian Inkster. Ministers should, if required, lodge amendments to the bill at stage 2 so that we do not find ourselves having to enact yet another amendment bill in a few months or years. We must try to avoid that at all costs.

This was a sentiment expressed in the debating chamber by many of the MSPs who spoke at the Stage 1 Debate. However, we are now approaching Stage 3 and the Bill remains as originally drafted by the Scottish Government and it looks likely that it will be enacted as so drafted.

20 crofting lawyers in a room together thought that amendments were required to the Bill. But clearly the Scottish Government knows best and the views of the legal practitioners who know and deal with the legislation on a regular and detailed basis is of no real concern.

Those lawyers will be the ones picking up the pieces and arguing before the Scottish Land Court, in the fullness of time, about any problems and unintended consequences that may have been created by the Scottish Government.

Jamie McGrigor also said:-

Not long ago, I attended a meeting of crofting lawyers in the Signet library, at which an eminent lawyer assured the brethren there that there would be much work for them in crofting law for the foreseeable future. I am beginning to understand why he said that.

The crofting lawyers in question have actively tried to reduce that workload by seeking to assist the Scottish Government in the drafting process. However, the Scottish Government in rejecting that assistance appears content to increase the workload those lawyers will have by adding to the complexity of crofting law. So be it for now.

However, the lawyers are not about to give up offering their help (although perhaps, some might argue, they should simply leave the Government to it). The Crofting Law Group will be at the Signet Library again on 27th September 2013 for their annual Crofting Law Conference in association with the WS Society. The theme of this year’s Conference is to be Crofting Reform. It is to be hoped that the Scottish Government will take that opportunity to engage with crofting lawyers and participate in the Conference for the benefit of both organisations and ultimately, hopefully, for the benefit of crofting tenants, owner-occupier crofters, owner-occupiers (who are not owner-occupier crofters), landlords and others affected by crofting law. I will blog more about the Conference once the programme for it has been finalised.

Brian Inkster 

[Photo Credit: 1984: Virgin Films]