Colin Kennedy’s Apportionment at Arinagour Common Grazings, Isle of Coll with his wind farm development and excavated house site
The Scottish Land Court has issued a decision to the effect that an application by Colin Kennedy, Convener of the Crofting Commission, to purchase his Apportionment at Arinagour Common Grazings on the Isle of Coll is incompetent.
Mr Kennedy pursued a series of Land Court actions with individuals and also had a long running dispute with the Crofting Commission, on a personal basis, over a number of years seeking to secure rights in the Common Grazings and obtain an Apportionment.
An Apportionment was finally granted in his favour by the Crofting Commission on 31 October 2014 although it did not take in areas of the Common Grazings originally desired by Mr Kennedy.
Having obtained the Apportionment, on which he has erected three wind turbines and a shed with plans to construct a croft house, Mr Kennedy then sought to purchase it from the Landlord, Martin Smith. The Landlord refused to sell and Mr Kennedy brought an application to the Land Court to purchase.
I represented Mr Smith at the hearing before the Land Court.
It has long been established in crofting law that there is no right under the Crofters (Scotland) Act 1993 to purchase an Apportionment that is not adjacent or contiguous to another part of the crofter’s croft. Mr Kennedy’s apportionment was a ‘deemed croft’ under the legislation and it was settled law that such a ‘croft’ could not be adjacent to itself.
However, Mr. Kennedy argued that such settled law was overturned by the registration requirements under the Crofting Reform (Scotland) Act 2010. He maintained that under the 2010 Act a ‘deemed croft’ became a ‘croft’ when registered in the Crofting Register as his Apportionment had been.
Lord Minginish , in delivering the Land Court’s decision said:-
Mr Kennedy’s argument was ingenious and not without a certain logic. But the problem it cannot evade and fails to deal with satisfactorily is the terms of sec 12(3) of the Act, which remain unamended by the 2010 Act.
In so finding the application was refused as incompetent by the Land Court.
The period of appeal to the Court of Session has expired without an appeal being lodged by Mr Kennedy and the Land Court has found Mr Kennedy liable to Mr Smith for the expenses of the application.
Thus Mr Kennedy remains a tenant of the Apportionment at Arinagour Common Grazings.
Notes:-
Read the full decision on the Scottish Land Court website: Kennedy v Smith [SLC/81/15]
Download a copy of the case: Kennedy v- Smith [PDF]
Is it right that a person who has active’issues’ with the Crofting Commission (and the Land Court) should be allowed to chair that Commission? Is there not a danger that his particular problems may skew the direction and perception of the Commission? Is there a link between the Convener’s focus on ‘deemed crofts’, and his apparent misunderstanding thereof, and the problems that some of us (not in Lewis) encountered at the beginning of 2016, when we were told to attend to the succession to grazing shares which had become ‘crofts’ (of zero hectares!) and had appeared on the Register of Crofts without any consultation with us?
A ‘DEEMED CROFT’ is a piece of legal fiction. It is only DEEMED to be a croft. It consists of NOTHING in certain contexts -‘zero hectares’ in my case – although it is, ir more strictly was, a grazing share entitling me to graze my cattle on some 20 acres of rough ground, shared with the cattle of other crofters.
A REAL CROFT has a definable size, somewhat greater than ‘zero hectares’, and it consists of earth, stones, heather, grass, and sometimes even some crops. Yes?
The trouble arises when the former is treated as if it were the latter. In order to maintain his/her succession, the happy potential ‘owner’ of the ‘deemed croft’ may be asked to go through legal processes which properly apply to REAL crofts. This could involve a Deed of Variation for a will, followed by Confirmation through a Sheriff Court. This is a very expensive procedure – and all for ‘zero hectares’!
This is surely ‘beyond bonkers’.
In instances where the same family has held the same croft with the same grazing entitlement since the very dawn of crofting, it is patently ridiculous. All that is needed is a confirmed note of continuing interest. Surely?
After all, common grazing shares are, or WERE, normally apportioned and managed by a local committee, and not by the Crofting Commission, with the threat of eviction from’zero hectares’ by the said Commission hanging over the head of the crofters who has not gone through the aforesaid legal process!
How has this nonsense come about?
Well..what can I say? you Brian are a bit of a “darkhorse”, in as much as you knew it all already 🙂
Martin, bless him will be pleased as will many others!
I am only sorry that Sheila did not live to see the day, God knows the hell they’ve been put through behest the Convener’s wishes.
God bless the honest lawyer and the Scottish Land Court..
A day for celebration on Coll, the Island of, that is! 🙂
Donald E Meek…the Convener is one for obtaining information under the F.O.I Act.
The crofting commission for years have denied him access to information.
What better way of obtaining that information and so much more than that of becoming a commissioner himself.
Yes and maybe the authority to twist the law to favour himself.. he is / was and always will be a land speculator on other peoples land!
His classic was obtaining Caolas by ill means!
Wonder if the C.C. has a copy?
https://www.gov.uk/government/publications/the-7-principles-of-public-life/the-7-principles-of-public-life–2