I represented Brian Thompson in Zetland Estate v Crofters Having Rights in Various Crofts on Zetland Estate [2025] SLC 4 (SLC/104/23).

This was one of a series of applications before the Court to fix fair rents on Estates in Shetland.

Brian Thompson is the owner‐occupier of the croft of Houlscarpa, Weisdale, Shetland, having purchased it from the original owner‐occupier, David James Arthur, in 1989.

The disposition in his favour narrates that “the rights of peat‐cutting and common grazing in scattald or common grazing” belonging to Mr Arthur were being conveyed as parts and pertinents of the croft. These rights had been acquired by Mr Arthur when he bought the croft from the Marquis of Zetland in 1970, the disposition in his favour including:

the rights of peat‐cutting and common grazing belonging to [the disponer] as hitherto exercised by the said disponee [i.e. Mr Arthur] and his predecessors in the tenancy of the said croft or holding.

In 1997 Mr Thompson applied for and was granted an apportionment in respect of his rights in the relevant scattald or common grazings but he has never acquired a heritable title thereto. That apportionment has been included in the list of crofts and croft land for which the Land Court were asked to fix fair rents by the Zetland Estate.

I challenged the Court’s right to do so by way of motion which was heard by Lord Minginish and Mr Campbell by way of a Webex hearing on 4 December 2024.

My submission was that, the rights in the common grazings having been acquired along with the inbye croft land, any question of their being rentable was extinguished and could not be resurrected simply by the conversion of the original rights, which extended over the whole scattald, into an apportionment. Reference was made to what the court had said in reference by Crofters Commission under section 53 of the Crofters (Scotland) Act 1993 (Application SLC/121/11, order of 3 August, 2012) in answer to the question “If a grazing share is included as part of the purchase of croft land can a rent still be charged in respect of that share and, if so, does this alter the status of that share?”, namely:

No. The thinking behind this question is not clear. Once a purchase has been completed there can be no question of continuing rent. In the usual case, the landlord must have had rights in the grazings in the grazing share to be able to provide it for his tenant as a pertinent of the croft. How that landlord acquired the rights does not appear to us to be of significance in this context, although it will almost invariably have arisen from his original ownership of the grazings. Once the former crofter holds the right as owner, no question of rent can arise.

I pointed out that the value of the grazing shares would have been taken into account when the purchase price of the croft was computed.

I put it to the Court that all of that being so, this application, in so far as it related to Mr Thompson’s apportionment, was incompetent.

The motion was opposed by Mr Eric Peterson, solicitor for the applicants, who submitted that the apportionment was rentable as a “deemed croft”. Moreover, it was in any event reasonable for it to be rented because the practical effect of this apportionment was that the landlords were being permanently deprived of 109 acres of his land.

The Land Court were having none of my arguments. They opined:

Had the question in this case been whether grazing rights in a common grazing remained rentable by the court after having been conveyed to an owner‐occupier crofter as part of the title to the inbye croft, we would have answered it in the negative. Is the answer different when an apportionment has been granted? In our opinion it is. That is because the granting of an apportionment brings about two changes in the situation, one practical, the other legal. The practical result in this case is that Mr Thompson has the exclusive use of the apportionment area and has lost his rights over the rest of the common grazing. The legal change is brought about by subsection(s) (4) and (5) of section 3 of the Crofters (Scotland) Act 1993, which provide that:

“(4)        For the purposes of this Act –

(a)           any right in pasture or grazing land held or to be held by the tenant of a croft whether alone or in common with others, and

(b)          any land comprising any part of a common grazing which has been apportioned for the exclusive use of a crofter under section 52(4) of this Act, and,

(c)           any land held runrig which has been apportioned under section 52(8) of this Act,

shall be deemed to form part of the croft.

(5)          For the purposes of this Act, where –

(a)           a crofter has acquired his entire croft other than any such right or land as is referred to in subsection (4) above; or

(b)          any person, not being a crofter, has obtained an apportionment of any land under section 52 of this Act, then the person referred to in paragraphs (a) or (b) above shall be deemed to hold the right or land referred to therein in tenancy until held otherwise and that right or land shall be deemed to be a croft.”

It seems to us that sub‐paragraph (a) of sub‐section (4) applies in this case. Since this provision was part of the original 1993 Act, when Mr Thompson acquired his apportionment in 1997 he should have realised, or, at least, could have found out, that the creation of a deemed croft with him as tenant would be the result.

What the court said in the Crofters Commission reference does not bear on this question because the court was not there addressing the situation where an apportionment is granted subsequent to the acquisition of the croft.

The suggestion that there is unfairness in an apportionment being rented when the grazing rights have already been paid for by the crofter is countered by the fact that an apportionment is a new creation involving the acquisition of enhanced rights by the crofter including not only the exclusive use of the apportionment area for grazing purposes but the right to pursue valuable diversification and development projects on that land, to the exclusion of his former fellow shareholders in the common grazings.

The Land Court therefore decided:

We therefore refuse Mr Inkster’s motion. The apportionment will be rented as a croft.

Deemed Croft provisions misinterpreted by the Land Court?

I consider that in rejecting my position the Land Court has erred in law.

What the Land Court missed is that subsection (4) of section 3 of the Crofters (Scotland) Act 1993 relates to a “tenant of a croft” (subsection (3) of 1993 Act).

The deeming provisions thereunder deem a grazing share held by a tenant of a croft or an apportionment to form part of that tenanted croft.

When a croft is purchased, along with a grazing share as a heritable pertinent, subsection (4) of section 3 of the 1993 Act can no longer apply to it. That grazing share is no longer deemed to form part of a croft it is now part of the croft intrinsically linked as a heritable pertinent.

An apportionment created from a heritable pertinent surely must remain as that – a heritable pertinent.

There is no provision in the 1993 Act to convert a heritable pertinent to a tenancy. An owner-occupier crofter could possibly do so themselves by creating a tenancy from that pertinent.