The Scottish Crofting Federation has welcomed the Crofting Commission’s decision to reject as incompetent a controversial decrofting application in Lochaber that would have allowed ten houses to be built on a croft there. The SCF believes the decision is indicative of a strong new line against speculative development on croft land.
The application by Donald and Elizabeth MacGillivray to decroft part of their croft at Oldtown in North Ballachulish followed the couple’s successful planning application for the right to turn the majority of the croft there into a housing development. Their planning application was eventually passed on appeal by a single Scottish Government reporter based in the Lowlands, despite having first been rejected by Highland Council’s planning committee. It had been opposed by local crofters.
The MacGillivrays, who are long-term absentees from the croft, lodged their decrofting application before the new 2010 Crofting Act came into force. The 2010 Act granted new powers to the Commission to oppose speculative development on croft land. Because the MacGillivrays application was to be decided in terms of the pre-2010 legislation fears were raised that the Commission might therefore be forced to approve it.
However, after a hearing in Ballachulish earlier this summer, the Commission have now rejected the MacGillivrays’ decrofting application as incompetent and have returned it to the applicants after concluding from the evidence presented by the applicants’ legal agents that “the occupied extent of the croft and the owned extent do not coincide”.
Iain MacKinnon, who researched the Oldtown case on behalf of SCF, said: “Our understanding is that if the MacGillivrays now resubmit a decrofting proposal for their land at Oldtown they will have to do so under the terms of the 2010 Act, which has much stronger provisions against speculation. The SCF warmly welcomes the Crofting Commission’s decision at Oldtown and the broader policy shift we believe it represents. Although the Commission were not able to use their new powers against speculative development in this case, it seems clear to us that their decision here is indicative of a strong new line against speculation that, in future, will be supported by further powers.
“What is of even greater significance now is that this unwelcome proposal at Oldtown has shown that there is a desire to revitalise crofting in North Ballachulish. With such enthusiasm in the locality the different bodies with responsibility for crofting regulation and development now have the chance to turn a threat for crofting into an opportunity for crofting.”
It is interesting that the application has, in effect, been rejected on a technicality rather than following an exploration of the substantive issues involved. Readers of this blog will know that the Crofting Commission appear to like using technicalities when they can to put off the day that they will actually have to make a real decision on an application to decroft.
It is understood that the rejection of the MacGillivrays’ application as incompetent was in response to an apparently critical issue raised at the application hearing by a lawyer acting on behalf of the local grazings committee. He raised the question “as to whether the whole of the croft owned and/or tenanted is occupied by the applicants”.
In response the Crofting Commission concluded:
In the absence of any evidence that the applicants own the full extent of the land occupied by them as part of their croft (such as another disposition by the landlord) or any adequate explanation by the applicants, the Commission have assumed that part of the croft remains tenanted.
The Commission have returned the application to the applicant’s agent as incompetent on the basis that it is not clear from the plans provided whether part of the occupied croft extent (as shown by the Crofting Commission plan approved by the applicants) still remains in tenancy and how much of the croft is owned.
It is possible then that the MacGillvrays’ could now fall into the ‘alien’ category previously highlighted on this blog and, if so, their status would be presently unknown, in the eyes of the Crofting Commission, for the purposes of decrofting. Thus a fresh application to decroft would not be considered by Crofting Commission until such time as they resolve what that status actually is. More about what the Crofting Commission are doing (or perhaps not doing) with regard to ‘alien’ status will be discussed in my next blog post.