Tag Archives: Western Isles

21 crofters to share over £705,000 from Croft House Grant Scheme

Fergus Ewing MSP announces £705,000 of Croft House GrantsCrofters will benefit from better housing through funding under the Croft House Grant Scheme.

Cabinet Secretary for Rural Economy and Connectivity, Fergus Ewing, confirmed 21 crofters will share over £705,000 from the scheme. The funding allows crofters to build or improve homes, helping to retain and attract people to rural communities in the crofting counties of Scotland.

Since the start of 2007, over £15 million of grant payments have been awarded. From 1 April 2016, changes made to the grant support mechanism include a significant increase in individual grants, with some crofters now eligible for £38,000 of funding.

Mr Ewing confirmed the funds on a visit to a recently constructed croft house near Kiltarlity in the Highlands. He said:

Good quality housing is essential for crofters. We need to draw people to Scotland’s most remote and rural communities and the Croft House Grant can do that. Upgrading or building new properties can help crofters fulfil their duty to live on or close to their croft and can help them undertake additional agricultural activity.

This funding will make a real difference to 21 crofters and their families across the Highlands, Western Isles, Northern Isles and Argyll. Since 2007 over 800 homes have been improved or built under the scheme. It is great to see how this support can make a difference and I look forward to hearing many more success stories from the latest awards.

Mark Wiper crofts at Ardendrain near Kiltarlity in Inverness-shire. He received £11,500 through the scheme in 2012, enabling him to build a three bedroom family home on his croft. He said:

The funding from the Croft House Grants Scheme went toward building Tigh Na Cleit. I’ve been there for two years now and being able to live on the croft I’m working on is great. Beforehand, I was living at home with my parents and having my own home has given me much needed independence.

The grant has provided me the opportunity to build a property that is completely fit for purpose, and allows me to still live close to my family. Crofting can be very challenging and any support to help maintain the way of life is welcome.

The 21 grants referred to are being made to crofters in the following locations:-

  • Caithness
  • Inverness-shire
  • Isle of Lewis
  • Isle of Skye
  • Isle of Islay
  • North Uist
  • Ross-shire
  • Shetland
  • Sutherland

For details of the scheme see: The Scottish Government – Rural Payments – Croft House Grant

Pressure mounts for a full investigation of the Crofting Commission

The crofting law truth is out there

The truth is out there

On this blog on 25 April 2016 I called for the Scottish Government to review the Crofting Commission’s actions in connection with ‘The Common Clearances‘ due to an alleged abuse of power within Great Glen House.

The Scottish Crofting Federation and others have backed that call. Yesterday the Scottish Crofting Federation reiterated that call on the back of apparent historical revisionism on the part of the Crofting Commission. Statements by the Convener of the Crofting Commission, Colin Kennedy, previously published on their website have been deleted and a different version of events presented by their Chief Executive, Catriona Maclean.

The uncovering of this underhand behaviour on the part of the Crofting Commission has resulted in mounting pressure for  the Scottish Government to now actually do something about it.

Uisdean Robertson, Councillor and Chair of the Joint Crofting Committee of Comhairle nan Eilean Siar (Western Isles Council), has been quoted as saying on Radio nan Gàidheal that the Council have no confidence in the members of the Crofting Commission and their Chief Executive. He has said that Crofting Commissioners and the Chief Executive all need to think about their positions in light of what has gone on.

Brian Wilson, writing in The Scotsman, has said:-

The immediate question is whether the Scottish Government is prepared to back their quango’s interpretation of the law and its heavy-handed approach to enforcement.

In the short term, a rapid inquiry into why the Crofting Commission has got itself into this mess and how it can be helped out of it may seem a relatively attractive option.

It has been asked on Twitter who would carry out such an inquiry. It must be someone with investigative experience (with a team at their disposal to assist them) and who is truly independent with no association whatsoever with Commissioners, the Convener or the Chief Executive.

Also, in my view, the Scottish Government should directly involve the Scottish Land Court by submitting a reference to them under section 53 of the Crofters (Scotland) Act 1993 to answer the questions in law that the Crofting Commission have been evading. Catriona Maclean, the Chief Executive of the Crofting Commission, has stated:-

The Commission is confident they are applying the law correctly but the only place this can be clarified is in the Scottish Land Court.

However, the Crofting Commission have yet to set out any legal argument with reference to statute or case law to show that they are applying the law correctly. I am strongly of the view that they are not. My detailed legal reasoning to them on this has gone unchallenged other than for them to say that once they make a decision that is final and cannot be changed by them!

If the Crofting Commission are so confident that they are applying the law correctly they should have nothing to fear by making a reference to the Scottish Land Court to confirm that. As they clearly do not wish to actually be found out to be in the wrong (the same is true of the decrofting debacle that resulted in unnecessary ‘remedial’ legislation at huge expense to the taxpayer when a Section 53 reference could easily have resolved the issue) the Scottish Government should advance that reference or insist that the Crofting Commission do so.

The truth is out there and it is in the Scottish Government’s hands to find it.

Brian Inkster

Image Credit: The X-Files © Ten Thirteen Productions, 20th Television, 20th Century Fox Television

Shetland and Orkney should be separate constituencies in the 2017 crofting election

Tavish Scott thinks Orkney and Shetland should remain separate constituencies in the 2017 crofting elections

Tavish Scott: “The consultation needs to offer something different: separate constituencies for Orkney and Shetland in the 2017 crofting election”

Following my recent blog post on the 2017 Crofting Elections Consultation being flawed there have been calls for Shetland and Orkney to remain separate constituencies in the 2017 crofting election.

The Shetland Times reported online yesterday that Liberal Democrat candidate for Shetland in the Scottish election, Tavish Scott, was of the view that Shetland and Orkney should be considered as separate constituencies in the 2017 crofting election.

Mr Scott said:-

Shetland’s crofting communities face different challenges to those in Orkney, but yet again the Scottish government is proposing to ride roughshod over the needs of local people.

The SNP simply does not understand these differences. Already we have ministers who have imposed a one-size-fits-all approach, failing to take into account the unique nature of crofting in the isles.

Already crofters are spending more time meeting the demands of regulation and waiting for payments that have been delayed by months.

The consultation needs to offer something different: separate constituencies for Orkney and Shetland in the 2017 crofting election.

Diversity between our crofting communities should be encouraged and supported but the SNP does not appear willing to even entertain that idea.

This view was backed up by NFU Shetland Chairman, Jim Nicolson, who said:-

Regarding constituencies, my position is that Shetland remains a constituency on its own.

It’s very, very difficult for whoever is the commissioner. It’s time consuming, expensive, and there are a large number of crofters to represent in Shetland as it is.

Hopefully the consultation exercise will take account of such views resulting, if necessary, in the addition of a further elected crofting commissioner to allow the Western Isles to be split into two constituencies (if there does indeed exist the desire to do so) but not at the expense of unnecessarily and unreasonably combining Orkney with Shetland.

Brian Inkster

Photo Credit: Rob McDougall

Crofting Election Consultation is flawed

Is it really necessary to divide the Western Isles but combine Orkney and Shetland?

Is it really necessary to divide the Western Isles but combine Orkney and Shetland?

The Scottish Government recently launched a consultation on the 2017 Crofting Elections. Unfortunately that consultation is somewhat flawed.

The main part of the consultation seeks the views of crofters on the best way to divide up the crofting areas into six constituencies. There is an attempt to possibly make the number of crofts in the six constituencies more equal. Due to the Western Isles containing almost a third of all crofts it has been suggested that this constituency could be divided into two (Lewis and Harris as one constituency with Uist and Barra as another). However creating two new constituencies from one will mean larger or combined constituencies elsewhere if the number of constituencies are to be maintained at six. The resulting options put forward in the consultation paper see Orkney and Shetland combined into one constituency or both combined with Caithness.

Whilst there may be merit in dividing the Western Isles in two it is undoubtedly the case that crofting in Shetland is very different to crofting in Orkney. Should those two distinct crofting areas be combined?

What the consultation paper misses altogether is that there is no need to be confined to six constituencies. The mistake appears to be an assumption that because there are currently six elected crofting commissioners there must be six constituencies. But in the same way that the Scottish Government may, by regulations, amend constituency boundaries they can likewise vary the number of elected members under and in terms of paragraph 3(6)(c) of Schedule 1 to the Crofters (Scotland) Act 1993. This could and should be given as an option in the consultation paper. By not offering it the consultation is flawed.

Brian Inkster

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?

Conclusion

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