Monthly Archives: February 2015

A New Solicitor for the Crofting Commission

David Findlay – Crofting Commission Solicitor

David Findlay has been appointed as the Solicitor to the Crofting Commission.

David is from Perthshire (with roots in Lewis), and began his career in Stornoway as a trainee. He then moved to a Perthshire firm, before moving North again to join Macleod & MacCallum’s Rural Land Department. During his time at Macleod & MacCallum he specialised in crofting law, becoming accredited as a specialist by the Law Society of Scotland in 2013.

David will be part of the Commission’s Senior Management Team, comprising:-

Catriona Maclean, Chief Executive and Accountable Officer
John Toal – Head of Policy and Crofting Duties
Donna Smith – Head of Information Systems
Joseph Kerr – Head of Regulation
Jane Thomas – Head of Corporate and Customer Services

All Change

The regulatory body for crofting has been through a period of intense change.

The old Crofters Commission was abolished by the Crofting Reform (Scotland) Act 2010. The new Crofting Commission was formed in 2012, and comprised 3 appointed and 6 elected Commissioners.

The Commission’s former Chief Executive Nick Reiter retired in 2012, and Catriona Maclean is now in that post. Mr Reiter’s retirement was followed the next year by the resignation of Donnie Ross, Commissioner for Caithness, Orkney and East Highlands. Mr Ross was replaced by Marina Dennis, who had previously served as a Commissioner with the Crofters Commission.

Sandy Cross, an appointed Commissioner who was to specifically represent the interests of landlords, also resigned, in 2014. He has recently been replaced by David Campbell.

In addition, there have been several changes in the Commission’s legal agency since the early retirement of Donald Smith in 2010.

Is all Publicity Good Publicity?

The Commission have also been in the news (and in this blog) several times over the last few years, as a result of the stance they took on owner-occupiers decrofting – namely that the 2010 Act did not allow them to do so. This was tagged the #decroftingdebacle, and resulted in the Crofting (Amendment) (Scotland) Act 2013, which my colleague Brian Inkster considered to be wholly unnecessary.

The #decroftingdebacle was followed by the Commission’s policy to shackle together legally those who owned parts of a croft. The signature of each owner was required on an application to decroft or let, and that policy caused serious problems for many crofters.

The Commission will now change that policy, in light of the decision of the Scottish Land Court in MacGillivary v Crofting Commission (blogged by Brian: Crofting Commission make a U-turn on Decrofting Appeal to the benefit of many owner-occupiers).

The Commission and its staff must surely be looking forward to sailing in calmer waters ahead, and we wish them well in that.

Eilidh Ross MacLellan

Crofting law is a complete mystery

Should the Chairman of the Land Court be hung, drawn and quartered?

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"should my friend the new chairman of the Land Court, Lord Minginish, be hung, drawn and quartered"

It would be unusual to penalise the Chairman of the Land Court!

The Rural Affairs, Climate Change and Environment Committee of the Scottish Parliament were today taking evidence on the Scottish Government’s amendments to the crofting community right to buy at Stage 2 of the Community Empowerment (Scotland) Bill.

Eilidh Ross MacLellan will be looking at the relative crofting provisions in a little more detail in a future blog post. In the meantime I will just draw your attention to a particular highlight from today’s proceedings.

It was pointed out that Section 92 of the Land Reform (Scotland) Act 2003 allows the Scottish Land Court four weeks from the hearing date to give its reasons in respect of a valuation appeal. A proposed amendment will extend that period to eight weeks. Should that extended timescale not be sufficient, the Land Court is to notify all parties of the date on which it will provide a written decision.

Derek Flyn gave his view on this:-

What sanction is available to parties if the Land Court does not do as instructed in the legislation? No sanction is included. If there is no result within the eight-week period and no information about when the written statement will be produced, should my friend the new chairman of the Land Court, Lord Minginish, be hung, drawn and quartered?

A good point. Derek went on to say:-

How the Land Court goes about its business should be in its rules and regulations. If it is in the bill, nothing will be able to be done about it if it goes wrong. It will just cause a legal problem that will go into the courts and stay there.

Hopefully the Scottish Government will endeavour to avoid such legal problems.

It was decided to ask the Minister about this one.

I trust Lord Minginish will not be in jeopardy of any penalties, especially of the medieval variety, by the time the Bill becomes an Act.

Read the Official Report of the Rural Affairs, Climate Change and Environment Committee – 18 February 2015 [PDF]

Brian Inkster

A Happy Crofter

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

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The 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.”