Monthly Archives: July 2013

Update on ‘alien’ owner-occupiers

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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]

Lochaber Decrofting Application Rejected

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Rejected Decrofting ApplicationThe Scottish Crofting Federation issued this press release today:-

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.

Brian Inkster

The Crofting Commission now have a Plan

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The Crofting Commission Plan is not a cunning one Baldrick

I have a plan so cunning you could stick a tail on it and call it a weasel

The Crofting Commission had six months from 17 March 2012 to prepare and submit a Plan to the Scottish Ministers. I am not sure exactly when the Crofting Commission did so but the Scottish Ministers only approved that Plan today. So more than 15 months after the Crofting Commission elections were held the Crofting Commission now have a Plan. It will be interesting to see whether this brings clarity to their regulatory functions. There will no doubt be future posts on the Crofting Law Blog on specific aspects of the Plan. In the meantime the official line from the Crofting Commission reads as follows:-

After celebrating a first anniversary in April, the Crofting Commission now has another landmark to celebrate, with the formal approval of the Policy Plan for its term of office, by Paul Wheelhouse, Minister for the Environment and Climate Change.

For Convener Susan Walker this marks the end of one period and an exciting beginning. Speaking from Skye Susan said, “We are delighted to receive formal approval of the Plan from the Minister. This is our blueprint for action for the rest of our term in office, as the first Commissioners of the newly created Crofting Commission. The primary focus of our first six months at the helm of the new organisation was spent drafting and consulting on the Plan. It contains our aspirations and ambitions for crofting and reflects our belief that crofting has a significant role to play in things such as population retention. The Plan also sets out our strategic policy and will be underpinned by more detailed individual policies, covering the whole gambit of crofting regulation.”

The Plan stems from provisions in the 2010 Crofting Reform (Scotland) Act, which saw the birth of the Crofting Commission and charged the Commissioners with the task of developing a Plan. As part of that process, the Commission consulted widely on the draft Plan and carefully considered all of the responses received before submitting a final draft to the Minister.

The Plan explains to tenant and owner-occupier crofts, landlords, organisations and agencies involved in crofting, how the Crofting Commission will make decisions on regulatory cases, in line with legislation and why consistent regulation of crofting is important.

In this way, the Commission seeks to balance the interests of crofting communities, landlords, crofters and the wider community – a balance which is essential if crofting is to continue to contribute to the development of some of the most fragile rural areas in Scotland.

There is a particular focus in the Plan on the need for crofting to play a part in retaining population in remote communities, through the occupation of crofts. The Crofting Act requires the Commission to ensure all tenants and owner-occupier crofters reside on or within 32km of their crofts.

The Commission wishes to encourage crofters to use Succession and other regulatory means to increase access to crofts for new entrants.

“People sometimes associate crofting with the past,” Susan Walker observed, “but while an awareness and understanding of the past is important, through our Plan, the Commission has clearly set its sights on the future of crofting”.

You can read the Plan in its full glory here: Crofting Commission Policy Plan (Word Doc)

Brian Inkster

[Photo Credit: Blackadder © BBC]