Category Archives: Decrofting

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

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Crofting Commission make a U-turn on decrofting appealThe Crofting Commission today confirmed that it has withdrawn its appeal to the Court of Session in connection with the Scottish Land Court’s decision of 18 December 2014 in the case of MacGillivray v Crofting Commission.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.”

Brian Inkster

Decrofting uncertainty continues as Crofting Commission take case to the Court of Session

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Court of SessionThe Crofting Commission last week lodged a request that a special case be stated on a question of law for the opinion of the Court of Session in connection with the 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 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 appealing that decision to 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 Crofting Law 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.

Brian Inkster

Decrofting effective after Royal Assent

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Queen gives royal assent to Crofting (Amendment) (Scotland) Act 2013

We shall decroft

The Crofting (Amendment) (Scotland) Act 2013 become law on 31 July 2013 when it received Royal Assent. This will have come as a great relief to many owner-occupier crofters who were in decrofting limbo. What will also have been welcoming to those crofters was the speed at which the Crofting Commission, having halted the decrofting process, actually processed applications post 31 July with some decrofting directions being issued during the first week of August. With a 42 day appeal period that means that this coming week (assuming no appeals) many owner-occupier crofters will have effective decrofting directions for the first time since the Crofting Commission stopped accepting and processing applications on 25 February 2013 (i.e. 7 months later).

So relief for owner-occupier crofters but not yet for many owner-occupiers (who are not owner-occupier crofters) if they cannot get consent to decroft from neighbours who happen to be owners of part of what was the original croft unit. They will unfortunately remain in decrofting limbo. I have blogged previously on this blog about the inequity of this situation and will continue to do so in future blog posts.

Brian Inkster

[Photo Credit: The Queen at her Balmoral Estate in Scotland taken by Julian Calder]

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

Crofting Gobbledygook

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Scottish Land Court

Will the Scottish Land Court have to decipher the Crofting (Amendment) (Scotland) Act 2013?

The Scottish Parliament has voted to pass the Crofting (Amendment) (Scotland) Bill. In due course, it will receive Royal Assent. Owner-occupier crofters will be able to decroft, and the Scottish Government will breathe a sigh of relief that the decrofting debacle has been buried.   However, this bill has been far from the Scottish Government’s finest hour. The bill has added a further layer of complexity to a legislative framework I have previously, publicly, labelled a mess and a shambles. The Act will result in the Crofting Commission processing applications once again, but the decrofting provisions are now so incomprehensible that it can only be a matter of time before they are challenged in the Courts. Then we shall hear accusations that solicitors are getting fat on the ever-diminishing bank accounts of crofters.  The time and effort taken by myself and by other professionals in this field indicate that we have an interest in clarifying legislation to avoid crofters facing high legal costs. Yet the Scottish Government saw fit to ignore all submissions and suggestions, however helpful they may have been. The quality and clarity of the Bill could have been far improved, had the Scottish Government accepted help from those best placed to provide it. Sooner or later, we will all simply stop responding to consultations and will have no heart to contribute to the parliamentary process.

Furthermore, this Bill has given birth to a fresh debate over wider crofting legislation. I have long been of the view that crofting legislation should be left alone for a time, to bed in, and to allow a body of case law to become established. However, in light of the 2013 Bill I have changed my view, and I have called for an overhaul of all crofting legislation. The numerous problems which have become apparent with the Crofting Reform (Scotland) Act 2010, coupled with the prospect of yet more impenetrable sections (when a few simple sections would have achieved the same effect), made me despair that the current framework could ever work. There are simply too many problems to overcome; the decrofting uncertainty was merely the tip of the iceberg. I do not suggest another evidence-gathering committee in the mould of Professor Shucksmith, but it is both possible and desirable to deconstruct the legislation and rebuild it so that it makes sense and is, to use a phrase so beloved of government, ‘fit for purpose’.

Rob Gibson MSP appeared to have taken offence at my labelling of the legislation as a “mess” and a “shambles” but I stand by my remarks, and I refute his comment that crofting law is merely “complex”. Most areas of law are complex, and solicitors are trained to operate in such an environment, but crofting law since the Crofting Reform (Scotland) Act 2010 – which his Government must take responsibility for and cannot be blamed on inheritance – has become incomprehensible, not merely complex. I urge Mr Gibson to listen to the suggestions offered by experienced professionals, rather than taking the defensive stance we saw in the debating chamber yesterday afternoon.

Eilidh I. M. Ross

Crofting (Amendment) (Scotland) Bill is passed

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Scottish Parliament - Stage 3 Debate - Crofting (Amendment) (Scotland) Bill

The Crofting (Amendment) (Scotland) Bill was passed by the Scottish Parliament today. The official press release from the Scottish Government reads:-

Decrofting legislation to tackle the difficulties owner-occupier crofters are facing when applying to decroft their land has been passed by the Scottish Parliament.

Decrofting land can enable a house to be built on the land and facilitate croft land being passed from one generation to the next. It was the intention of the Scottish Government and the Scottish Parliament that tenant and owner-occupier crofters be treated similarly under the Crofting Reform (Scotland) Act 2010.

The issue came to light recently that owner-occupier crofters were unable to apply to the Crofting Commission to decroft land and the Scottish Government brought forward a bill to amend existing legislation.

The Environment and Climate Change Minister Paul Wheelhouse said:

“The Scottish Government has been working extremely hard with the Scottish Parliament, the Crofting Commission and other stakeholders to resolve these issues as quickly as possible.

“I hope the legislation passed by the Scottish Parliament today offers owner-occupier crofters, lenders and others the reassurance that action has been taken and decrofting of land can continue, where it has no negative impact on crofting as a whole.

“I gave an undertaking to this Parliament during Stage 1 of the Bill that my officials will investigate, in consultation with stakeholders, what the best method might be for dealing with the outstanding issues. Stakeholders should therefore expect contact from my officials to arrange a discussion on the next steps for crofting.

“I would like to thank members for the cross-party support this Bill has received as the Parliament worked together to resolve this issue.

It is good to see the Bill passed and the decrofting problems faced by owner-occupier crofters hopefully now behind them. It is, however, a pity that the Bill was not simplified somewhat in its drafting rather than remaining a sledge hammer to crack a nut. It is also a pity that issues raised about it by crofting law experts were not properly addressed during the passage of the Bill through the Scottish Parliament. But the conclusion I came to in my last blog post was that the Scottish Government knows best about crofting law.

Let us hope that we see a different approach from the Scottish Government when they engage with stakeholders to discuss the “next steps for crofting” as Paul Wheelhouse said, again, today that they would be doing.

Brian Inkster

The Scottish Government knows best about Crofting Law

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The Scottish Government knows best about Crofting LawAt the Stage 2 Debate on the Crofting (Amendment) (Scotland) Bill, on 12th June, Alex Fergusson MSP asked:-

Given the issues that have been raised by Sir Crispin Agnew, in particular, about some parts of the bill not matching up with others, if I can use such loose terminology, why have you not seen fit to lodge amendments to address his concerns?

Paul Wheelhouse MSP, Minister for Environment and Climate Change, responded:-

We are aware that there are a number of alternative views about the form and content of the bill, as was discussed during the stage 1 debate. We are aware of those views and respect the opinions of Sir Crispin Agnew and Derek Flyn and others, including Brian Inkster, but we believe that the bill provides the necessary clarity and legal certainty that the owner-occupier crofters and other stakeholders are looking for to allow them to decroft their land. The commission will have the power to consider such applications after the bill is enacted.

The Scottish Government considered the detailed drafting issues that were raised; I can promise the committee that we have gone over them in some detail. However, as it is drafted, the bill achieves its purpose. A number of key witnesses to the committee, such as Sir Crispin Agnew, and the Crofting Commission, through David Balharry and Derek Flyn, all agreed that the bill delivers on the purpose that the Government has set out of giving owner-occupiers the ability to decroft.

The Scottish Government is committed to drafting in as plain and accessible a manner as is consistent with achieving the necessary outcome. We all know that crofting law is horrendously complicated: that message came across loud and clear at last week’s debate, and I do not disagree with that conclusion, which was reached by many members. As I said during the stage 1 debate, the key issue is that the provisions in the bill, in its current form, are as close as we could get them to the provisions for tenant crofters. That will enable us to deliver similar treatment, which we all want. I cannot prejudge what the committee will say, but the nature of the debate so far seems to indicate that we want to give owner-occupiers provisions that are similar to those for tenant crofters where appropriate. Obviously, some aspects, especially on land tenure and right to buy, had to be modified, but we are talking about the general provisions. In order to do that, we have kept as close as possible to the original wording of the provisions for tenant crofters.

The bill has therefore taken a particular form. I appreciate that some people are concerned that it could have been simpler, but then there might have been more room for doubt that the provisions were meant to be the same as those for tenant crofters. By taking the view that we have, we have managed to minimise that possibility. I hope that that answers Mr Fergusson’s question.

Alex Fergusson responded:-

It does, and in much more detail than I was expecting; I thank you for that. I just want to clarify that my reason for raising the point was not to question the purpose of the bill or its likely outcome but to look for confirmation, which I think you have given me, that you looked at the technical drafting points that were raised by Sir Crispin Agnew, which were not really questioning the outcome of the bill but questioning whether separate parts of the bill worked together in a way that goes beyond my ken. You have told me clearly that you have looked at all that and are satisfied with the way in which the bill is drafted, and I am quite happy to accept that. It is good to have that on the record.

The position stated by Paul Wheelhouse at Stage 2 is really much the same as when he gave evidence to the Rural Affairs, Climate Change and Environment Committee back on 22nd May (see: length is not everything). But by now we have really moved away from the debate on length. It is clear that the Scottish Government has no intention of rewriting the Bill in more simplistic terms (that is probably too much like hard work in the short time frame available to ensure that the Bill becomes an Act).

However, many of the comments made by Sir Crispin Agnew QC, Derek Flyn, myself and others related to the detail of the Bill in its current form and small tweaks to that necessary to avoid confusion, problems and, in at least one case, to close a loophole that the Scottish Government had inadvertently opened. All of this appears to have been sidestepped. If the Scottish Government did indeed consider “the detailed drafting issues that were raised” and went “over them in some detail” would it not have been good (perhaps essential) to have seen a detailed written rebuttal of each with reasons why the Scottish Government thought the expert crofting law views on each to be of no apparent value? Without that how easy is it for MSPs to easily consider the matter given the complexity of crofting law that they are all ready to acknowledge? They simply have to accept the Minister’s word for it as Alex Fergusson did. But at least he did get it on record and that just might come back to haunt the Minister.

At the Stage 1 Debate comments were made of the fact that the Scottish Government were benefitting from free legal advice from crofting law experts and should be taking advantage of that. As Graeme Dey MSP put it:-

Sir Crispin Agnew offered helpful advice on wording, and it is not often that a learned QC offers advice gratis.

Jamie McGrigor MSP said:-

I am not a lawyer or a legal expert so, like the committee, I can only urge ministers to take on board and address the concerns that have been expressed by eminent figures such as Sir Crispin Agnew QC and Brian Inkster. Ministers should, if required, lodge amendments to the bill at stage 2 so that we do not find ourselves having to enact yet another amendment bill in a few months or years. We must try to avoid that at all costs.

This was a sentiment expressed in the debating chamber by many of the MSPs who spoke at the Stage 1 Debate. However, we are now approaching Stage 3 and the Bill remains as originally drafted by the Scottish Government and it looks likely that it will be enacted as so drafted.

20 crofting lawyers in a room together thought that amendments were required to the Bill. But clearly the Scottish Government knows best and the views of the legal practitioners who know and deal with the legislation on a regular and detailed basis is of no real concern.

Those lawyers will be the ones picking up the pieces and arguing before the Scottish Land Court, in the fullness of time, about any problems and unintended consequences that may have been created by the Scottish Government.

Jamie McGrigor also said:-

Not long ago, I attended a meeting of crofting lawyers in the Signet library, at which an eminent lawyer assured the brethren there that there would be much work for them in crofting law for the foreseeable future. I am beginning to understand why he said that.

The crofting lawyers in question have actively tried to reduce that workload by seeking to assist the Scottish Government in the drafting process. However, the Scottish Government in rejecting that assistance appears content to increase the workload those lawyers will have by adding to the complexity of crofting law. So be it for now.

However, the lawyers are not about to give up offering their help (although perhaps, some might argue, they should simply leave the Government to it). The Crofting Law Group will be at the Signet Library again on 27th September 2013 for their annual Crofting Law Conference in association with the WS Society. The theme of this year’s Conference is to be Crofting Reform. It is to be hoped that the Scottish Government will take that opportunity to engage with crofting lawyers and participate in the Conference for the benefit of both organisations and ultimately, hopefully, for the benefit of crofting tenants, owner-occupier crofters, owner-occupiers (who are not owner-occupier crofters), landlords and others affected by crofting law. I will blog more about the Conference once the programme for it has been finalised.

Brian Inkster 

[Photo Credit: 1984: Virgin Films]

Length is not everything

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Length is not everything in crofting lawAt the evidence gathering session on the Crofting (Amendment) (Scotland) Bill by the Rural Affairs, Climate Change and Environment Committee on 22 May, Paul Wheelhouse MSP stated:-

In drafting the bill, we have tried to reduce the scope for misinterpretation and disagreement. The provisions that relate to tenant crofters are reasonably stable and working fairly well, so there is no problem with them as they stand. The problem specifically relates to owner-occupier crofters. We have taken forward the measures as far as we can for owner-occupiers. There are some slight differences—we have taken steps to ensure that community right-to-buy provisions are not reflected for owner-occupiers, for example. However, in so far as we have been able to do so, the approach that we have taken is to keep things as similar as possible, to ensure that there is minimal scope for misinterpretation.

That means that the bill is longer than Sir Crispin Agnew and Derek Flyn, say, would have liked. However, length is not everything, and having a shorter bill is not necessarily the primary virtue; it is about trying to ensure clarity and minimising the risk that we could be challenged at some point in the future. I cannot give an absolute guarantee, but I hope that what we have done will minimise that risk.

But extra length does not necessarily ensure clarity or minimise the risk of future challenge. Indeed it could well (and I think in this case does) do the opposite. Prior to the Crofting Reform (Scotland) Act 2010 decrofting by owner-occupiers (which then included owner-occupier crofters) was linked to the same provisions for decrofting by tenant crofters. That worked well and without problem. It was tried and tested. The intention was for the 2010 Act to do the same thing for owner-occupier crofters. I believe it achieved that. Others believe not. Hence why we have the Crofting (Amendment) (Scotland) Bill. But there is no reason why that Bill needs to over complicate the fix. Aligning the fix with the existing provisions for tenant crofters is the obvious, logical and easiest way to do so. Instead the Scottish Government have attempted to mirror those provisions anew within a fresh set of provisions but at the same time have introduced new law into those with no real regard to the consequences of so doing.

I provided a simpler solution and Sir Crispin Agnew provided arguably an even simpler one. These have been ignored. Crofting law is a mess and it is about to get even messier.

Brian Inkster