Category Archives: Annual Review

The Year of The Crofting Law Sump

Scottish Legal News Crofting Law Review 2015As 2015 draws to a close I am reproducing here an article I wrote for the Scottish Legal News Annual Review 2015. It looks at Crofting Law in 2014. Now a whole year ago I know. I have been asked to write another such review of 2015 which I will be doing shortly. That will appear in  the Scottish Legal News Annual Review 2016.

The Crofting Law Sump was set up by the Crofting Law Group in 2013. The purpose of ‘the Sump’ was to gather together details of the significant problem areas within existing crofting legislation.

During passage through the Scottish Parliament of the Crofting (Amendment) (Scotland) Act 2013, MSPs were informed by practitioners who had been called to give evidence about the many problems in the existing legislation that were causing difficulties for crofters, landlords and others.

Paul Wheelhouse MSP, who was then Minister for Environment and Climate Change with responsibility for crofting, gave an undertaking that his officials would investigate, in consultation with stakeholders, what the best method might be for dealing with these outstanding issues.

The Sump was set up to assist the Government in this process. Administration was carried out by Derek Flyn, retired crofting lawyer, and Keith Graham, formerly Principal Clerk of the Scottish Land Court. 2014 saw much activity by them both collating the issues and problems that are causing difficulties, prioritising them and indicating how the problems can be resolved.

In May 2014 the Crofting Law Group held workshops in Inverness to look at the problem areas identified in the Collected Sump Report and provide feedback thereon. Following those workshops and a written consultation process the Commented Sump Report was produced. There was then feedback sought on the priority levels attributable to problem areas within that report. Further debate on the Sump took place at the Crofting Law Group Conference in Lochmaddy, North Uist in October. The Final Report of the Crofting Law Sump, highlighting 126 problem issues, was then presented to the Scottish Government on 10 December 2014.

2015 will be the year that we hopefully see what the Scottish Government plan to do to resolve all of the problem areas that have been identified.

Whilst the Sump was being contemplated the Scottish Land Court were making decisions that shaped or clarified the law. During the year Lord McGhie retired as Chairman of the Land Court and was succeeded by Sheriff Roderick John MacLeod QC who became Lord Minginish. Sheriff MacLeod had been the Deputy Chair of the Land Court since 2006.

Whilst there were a few interesting and important decisions of the Land Court in 2014 the crofting law year ended with a bang following  their decision in MacGillivray v Crofting Commission (Application RN SLC/99/13 — decision of 18 December 2014).

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 Commission but never published by them.

For the past two years many people have been affected by this policy decision and have been unable to decroft and thus develop land they own if a neighbour who happens to own part of the original croft unit is not willing to consent to the proposed development taking place. Mr & Mrs MacGillivray were in that very position. Their application to decroft land at North Ballachulish for house building had been rejected by the Crofting Commission because it did not have the consent of the landlord of that part of the original croft unit that remained in tenancy. Mr & Mrs MacGillivray referred the matter to the Scottish Land Court who decided that the Crofting Commission were wrong and it was competent for an owner of part of a croft to seek to decroft without requiring the consent of any other owners of the original croft unit. The Land Court took the view that the reference to a croft in the Crofting Acts applied equally to part of a croft.

The Land Court’s decision will have come as a relief to many who have been affected by the Crofting Commission’s policy. However, any hopes of an early resolution to their own predicaments have been dashed by the Crofting Commission lodging a request that a special case be stated on a question of law for the opinion of the Court of Session. It is now likely to be many months before a ruling is issued that will settle the matter once and for all.

Many crofting lawyers, including myself, have long held the view that the Crofting Commission’s policy was not a correct interpretation of the law. At the outset I called on this matter to be resolved before the Land Court by the Commission or action to be taken by the Scottish Government to do so. It is a pity that one affected party (there are many) has had to take the Crofting Commission to task over this whilst others have been left in limbo for over two years.

The Land Court’s decision was a clear, sensible and fair one. Even if the Court of Session ultimately were to take a different view, affected parties will continue to lobby the Scottish Government to amend crofting legislation to allow those who own croft land to be able to apply to decroft at their own instance. It is a problem that was highlighted in the final Sump Report as a priority one for the Scottish Government to tackle. They may, of course, not have to tackle it if the Court of Session agrees with the Land Court’s interpretation of the law.

N.B. Since this article was first published the Crofting Commission withdrew their request for a special case to be stated on a question of law for the opinion of the Court of Session. Therefore, the Land Court’s decision in MacGillivray v Crofting Commission (Application RN SLC/99/13 — decision of 18 December 2014) stands. See: Crofting Commission make a U-turn on Decrofting Appeal to the benefit of many owner-occupiers.

Download the Scottish Legal News Annual Review 2015 [via Calameo].

Brian Inkster

A pivotal year for Crofting Law

Scottish Legal News Crofting Review 2014This is an article that Brian Inkster wrote for the Scottish Legal News Annual Review 2014:-

2013 was certainly a year to remember in the world of crofting law. It started in February when the Crofting Commission issued a statement concerning decrofting applications made by owner-occupier crofters who occupy their crofts.

The Commission, having taken legal advice on the question of whether or not an owner-occupier crofter can decroft part or all of their croft, stated that they believed the amendments introduced by the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”) did not make provision for an owner-occupier crofter to decroft if he is occupying his croft.

Furthermore, the Commission stated that they had been advised that they would be acting outwith their statutory authority if they approved any application made to decroft, and that no further applications would be considered until a remedy was found, with applications at that time in process being placed in abeyance.

The implications of this were significant to say the least. The Crofting Commission were not only preventing owner-occupier crofters and connected third parties from building houses or carrying out other developments but they were in effect saying that decrofting directions already granted by them may be invalid. If such directions were invalid then, if title deeds had been granted in reliance of those directions, those title deeds would be null and void. This is because applications to divide an owner-occupied croft will not have been made prior to transfer (such applications not being necessary if the land was decrofted but necessary if the land was not decrofted). Banks who had granted mortgages in reliance of such decrofting directions were also exposed.

I looked at the legislation and simply could not see the problem perceived by the Crofting Commission. I published an opinion setting out why the existing legislation clearly provided for decrofting by owner-occupier crofters. To date that opinion has not been openly challenged and the Crofting Commission refused to publish their legal opinion (so no one knows the actual reasoning behind the Commission’s decision to halt processing decrofting applications).

Faced with differing legal opinion the Scottish Government decided to introduce a Crofting (Amendment) (Scotland) Bill and rush it through Parliament with all due haste. The Bill they drafted was, in my opinion, a sledge hammer to crack a nut with the potential to introduce even more unintended consequences into crofting law. I suggested and drafted a shorter version at 621 words rather than 1,700 words. I and the other crofting lawyers who put forward submissions were ignored. The Bill was enacted as originally drafted without any amendment whatsoever during the three stages that it very quickly passed through the Scottish Parliament. The Crofting (Amendment) (Scotland) Act 2013 become law on 31 July 2013 when it received Royal Assent.

The Scottish Government, during the passage of the Bill, continually sidestepped another fairly significant issue that was causing difficulty for many owner-occupiers who were not classed by the 2010 Act as owner-occupier crofters. Back in February the Crofting Commission had also published a statement on decrofting by owner-occupiers who were not owner-occupier crofters. Their view, having obtained legal advice, was that if an original croft unit had been split into different parts each owned by a separate owner-occupier then no one owner-occupier could decroft part of their own land without the consent and concurrence of the neighbouring owner-occupiers. The end result is that if you fall into this category and don’t want your neighbour developing land that they own you can simply prevent them from so doing.

A Scottish Government Official said that he hoped everybody would be able to work together at some point to recognise the benefits by concurring in decrofting applications. Tavish Scott MSP pointed out that “we do not live in a perfect world”. Time has shown that we don’t with several examples arising of owner-occupiers being prevented from developing their land.

This problem could easily have been cured by a minor provision within the Crofting (Amendment) (Scotland) Act 2013. The Scottish Government by ignoring the issue have allowed the problem to manifest itself as time goes on. They may well be forced to consider a further Crofting Amendment Bill to fix it.

During the passage of the latest Bill it became apparent to MSPs that much was wrong with Crofting Law. Many of these problems stem from the fact that the 2010 Act was the result of a Bill that had 230 amendments all dealt with at Stage 3 in less than 3 hours.

Alex Fergusson MSP said “The whole thing seems to me to be a bit like the Hydra—you cut off one head and two others appear. With crofting, we get rid of one problem and two others appear in its place.”

Paul Wheelhouse MSP, Minister for Environment and Climate Change with responsibility for crofting, gave an undertaking that his officials would investigate, in consultation with stakeholders, what the best method might be for dealing with these outstanding issues. That consultation is now on-going.

The Crofting Law Group set up a ‘Sump’ to assist the Government in this process. It is being administered by Derek Flyn, retired crofting lawyer, and Keith Graham, formerly Principal Clerk of the Scottish Land Court. They are collating the issues and problems that are causing difficulties, prioritising them and indicating how the problem can be resolved. Their Report will be made available to the Scottish Government on completion.

From 30th November compulsory registration in the new Crofting Register, held by Registers of Scotland, was introduced for crofts if certain trigger events occur. The Crofting Register is a product of the 2010 Act and already it is being suggested that there may be unintended consequences arising from the drafting of the legislation. More fodder for the ‘Sump’!

2014 will be a pivotal year for crofting law with the publication of the ‘Sump’ Report and hopefully some indication from the Scottish Government as to what they intend doing to clear up the mess that the 2010 Act created.

Brian Inkster