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Land Court convert a heritable pertinent to a deemed croft despite the terms of the Crofting Acts (image of a cross-wire fence with wool caught on it)

Land Court convert a heritable pertinent to a deemed croft despite the terms of the Crofting Acts

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I represented Brian Thompson in Zetland Estate v Crofters Having Rights in Various Crofts on Zetland Estate [2025] SLC 4 (SLC/104/23).

This was one of a series of applications before the Court to fix fair rents on Estates in Shetland.

Brian Thompson is the owner‐occupier of the croft of Houlscarpa, Weisdale, Shetland, having purchased it from the original owner‐occupier, David James Arthur, in 1989.

The disposition in his favour narrates that “the rights of peat‐cutting and common grazing in scattald or common grazing” belonging to Mr Arthur were being conveyed as parts and pertinents of the croft. These rights had been acquired by Mr Arthur when he bought the croft from the Marquis of Zetland in 1970, the disposition in his favour including:

the rights of peat‐cutting and common grazing belonging to [the disponer] as hitherto exercised by the said disponee [i.e. Mr Arthur] and his predecessors in the tenancy of the said croft or holding.

In 1997 Mr Thompson applied for and was granted an apportionment in respect of his rights in the relevant scattald or common grazings but he has never acquired a heritable title thereto. That apportionment has been included in the list of crofts and croft land for which the Land Court were asked to fix fair rents by the Zetland Estate.

I challenged the Court’s right to do so by way of motion which was heard by Lord Minginish and Mr Campbell by way of a Webex hearing on 4 December 2024.

My submission was that, the rights in the common grazings having been acquired along with the inbye croft land, any question of their being rentable was extinguished and could not be resurrected simply by the conversion of the original rights, which extended over the whole scattald, into an apportionment. Reference was made to what the court had said in reference by Crofters Commission under section 53 of the Crofters (Scotland) Act 1993 (Application SLC/121/11, order of 3 August, 2012) in answer to the question “If a grazing share is included as part of the purchase of croft land can a rent still be charged in respect of that share and, if so, does this alter the status of that share?”, namely:

No. The thinking behind this question is not clear. Once a purchase has been completed there can be no question of continuing rent. In the usual case, the landlord must have had rights in the grazings in the grazing share to be able to provide it for his tenant as a pertinent of the croft. How that landlord acquired the rights does not appear to us to be of significance in this context, although it will almost invariably have arisen from his original ownership of the grazings. Once the former crofter holds the right as owner, no question of rent can arise.

I pointed out that the value of the grazing shares would have been taken into account when the purchase price of the croft was computed.

I put it to the Court that all of that being so, this application, in so far as it related to Mr Thompson’s apportionment, was incompetent.

The motion was opposed by Mr Eric Peterson, solicitor for the applicants, who submitted that the apportionment was rentable as a “deemed croft”. Moreover, it was in any event reasonable for it to be rented because the practical effect of this apportionment was that the landlords were being permanently deprived of 109 acres of his land.

The Land Court were having none of my arguments. They opined:

Had the question in this case been whether grazing rights in a common grazing remained rentable by the court after having been conveyed to an owner‐occupier crofter as part of the title to the inbye croft, we would have answered it in the negative. Is the answer different when an apportionment has been granted? In our opinion it is. That is because the granting of an apportionment brings about two changes in the situation, one practical, the other legal. The practical result in this case is that Mr Thompson has the exclusive use of the apportionment area and has lost his rights over the rest of the common grazing. The legal change is brought about by subsection(s) (4) and (5) of section 3 of the Crofters (Scotland) Act 1993, which provide that:

“(4)        For the purposes of this Act –

(a)           any right in pasture or grazing land held or to be held by the tenant of a croft whether alone or in common with others, and

(b)          any land comprising any part of a common grazing which has been apportioned for the exclusive use of a crofter under section 52(4) of this Act, and,

(c)           any land held runrig which has been apportioned under section 52(8) of this Act,

shall be deemed to form part of the croft.

(5)          For the purposes of this Act, where –

(a)           a crofter has acquired his entire croft other than any such right or land as is referred to in subsection (4) above; or

(b)          any person, not being a crofter, has obtained an apportionment of any land under section 52 of this Act, then the person referred to in paragraphs (a) or (b) above shall be deemed to hold the right or land referred to therein in tenancy until held otherwise and that right or land shall be deemed to be a croft.”

It seems to us that sub‐paragraph (a) of sub‐section (4) applies in this case. Since this provision was part of the original 1993 Act, when Mr Thompson acquired his apportionment in 1997 he should have realised, or, at least, could have found out, that the creation of a deemed croft with him as tenant would be the result.

What the court said in the Crofters Commission reference does not bear on this question because the court was not there addressing the situation where an apportionment is granted subsequent to the acquisition of the croft.

The suggestion that there is unfairness in an apportionment being rented when the grazing rights have already been paid for by the crofter is countered by the fact that an apportionment is a new creation involving the acquisition of enhanced rights by the crofter including not only the exclusive use of the apportionment area for grazing purposes but the right to pursue valuable diversification and development projects on that land, to the exclusion of his former fellow shareholders in the common grazings.

The Land Court therefore decided:

We therefore refuse Mr Inkster’s motion. The apportionment will be rented as a croft.

Deemed Croft provisions misinterpreted by the Land Court?

I consider that in rejecting my position the Land Court has erred in law.

What the Land Court missed is that subsection (4) of section 3 of the Crofters (Scotland) Act 1993 relates to a “tenant of a croft” (subsection (3) of 1993 Act).

The deeming provisions thereunder deem a grazing share held by a tenant of a croft or an apportionment to form part of that tenanted croft.

When a croft is purchased, along with a grazing share as a heritable pertinent, subsection (4) of section 3 of the 1993 Act can no longer apply to it. That grazing share is no longer deemed to form part of a croft it is now part of the croft intrinsically linked as a heritable pertinent.

An apportionment created from a heritable pertinent surely must remain as that – a heritable pertinent.

There is no provision in the 1993 Act to convert a heritable pertinent to a tenancy. An owner-occupier crofter could possibly do so themselves by creating a tenancy from that pertinent.

Land Court rule that Crofting Convener has no right to purchase his Apportionment

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Apportionment Arinagour Common Grazings Isle of Coll

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.

Brian Inkster

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]

The deleted Crofting Commission post

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Rebel Crofters store the data from the Crofting Commission

The Crofting Commission did not bank on the Rebel Alliance of Crofters having the technology to store and retrieve data

In the last post on this blog reference was made to the Crofting Commission deleting its history. The possible purpose for this historical revisionism will become apparent in subsequent posts on this blog. For now we reproduce, for posterity, that deleted post from 25 April 2016 (the Crofting Commission clearly not being technologically savvy enough to completely cover their tracks):-

COMMON GRAZINGS THE RIGHTS OF CROFTERS AND THE DUTIES OF
GRAZINGS COMMITTEES AND THEIR GRAZINGS CLERKS

It seems to me like a very good time to remind shareholders in Common Grazings
what their rights are and what the duties of the Grazings committee and their
Grazings clerk are. The following is a brief overview of the key points that everyone
involved should understand. Many people reading this may think that this is not what
happens in their village and may feel that it is overly bureaucratic but this is what is
contained in the Crofting Acts. If this process is not what is now required then the
only way to address it would be to ensure that any new Act reflects current
requirements. Until then the Commission have a responsibility for regulating crofting
within current legislation.

Shareholders

  • Crofters who share in a common grazing have certain rights over the land. These
    rights, or pertinents, include the grazing of stock, access to a house or pier or
    foreshore, an area for laying up a boat, the right to collect seaware, the right to cut
    peat, the right to use heather and grass for thatching. These rights, shared with
    others, are over the whole area comprising the common grazing. There are also
    certain common Grazings used as arable machairs, particularly in the Western Isles,
    where the crofters may have a right of cropping. The crofting acts state that the only
    way this can be changed is:-
  • If the landlord resumes an area of the Grazings for a reasonable purpose and
    the shareholders are compensated for their loss and obtain a share of the
    development value of the resumed land.
  • An individual gets an apportionment when his souming may be adjusted.
  • If shareholders enter into a forestry project in terms of section 50 or 50A of the
    crofting Act.
  • If the land court has agreed to a scheme for development under section 19A
    which is binding on all parties.
  • If the majority of the shareholders voting and the Grazings committee or
    constable have obtained the Commission’s consent to use part of the
    Grazings for some other purposeful use under section 50B.
  • Through Compulsory purchase by an acquiring authority with powers of
    compulsory purchase under section 37 of the Act, subject to compensation
    and share in the development value as with resumption.
  • By a reorganisation scheme.
  • Any other local Grazings arrangement is not binding on shareholders who, if they
    choose to do so retain the right to graze stock equivalent to their souming over the
    whole Grazings and the committee and clerk should ensure that any shareholder
    wishing to use the Grazings is accommodated.

Grazings Committees

The most important thing that shareholders in a common Grazings need to
understand is that the Grazings committee act as trustees of the shareholders. The
Land Court has stated that:-

..they (that is the Grazings committee) have clear duty to act as trustees of
the WHOLE shareholders in the Grazings and therefore it is their duty to act
impartially and judicially, keep in view what is their paramount consideration
– how the common Grazings can best be administered to the greatest
advantage of ALL of the tenants sharing in the Grazings….

The general responsibilities of the Committee are to:-

  • Make regulations (which require the consent of the Commission and) which
    should in the spirit of their primary duty to accommodate the requirements of
    all shareholders. Regulations cannot themselves curtail the right of any
    shareholder to graze his souming across the whole Grazings other than in the
    circumstances detailed under the paragraph entitled ‘Shareholders’ or to meet
    any specific environmental designations.
  • Hold an annual general meeting and the clerk should give the meeting an
    account of the work of the committee and of the financial position. At this
    meeting the committee should answer the questions of the shareholders
    whom they represent.
  • MAINTAIN the Grazings and any fixed equipment. That is clearly any existing
    fixed equipment such as fences. They can do this without reference to the
    shareholders and they should claim back any costs INCURRED from each of
    the shareholders whether they are actively using the Common Grazing or
    not.
  • Should the committee wish to carry out any IMPROVEMENTS to the Grazings
    they cannot do so unless they have served notice on each shareholder and
    told them how much the shareholder’s proportion of the cost will be. This
    gives the shareholder the opportunity to make representations against any
    such proposal to the Commission.

Financial management

As trustees any money received by the committee belongs to the shareholders and
should be distributed to them as soon as is reasonably practicable. It is NOT the
township’s or the committee’s money and as such it is the duty of the Grazings Clerk
to distribute any money received from whatever source, but in particular
resumptions, according to each individual shareholder’s share entitlement whether or
not they are active crofters.

When the Grazings Committee require monies to maintain the common Grazings
and the fixed equipment or to carry out works for improvements, the committee must
levy and recover the required monies directly from the shareholders for onward
payment to any third parties.

The rights of crofters have been detailed above and there is no explicit provision
in the crofting acts for the Grazings committee or clerk to be involved in the
administration or coordination of schemes falling within the provisions of
IACS regulations. So any involvement or concern regarding this should be directed
to the scheme administrators. Notwithstanding that fact, as the committee are acting
on behalf of the shareholders, any monies received and lodged in the Grazing
Committee Bank Account belongs to shareholders and must be distributed to each
shareholder in accordance with their share entitlement. It is important that all monies
are distributed to all shareholders timeously in order to assist correct financial
accounting by each individual shareholder should they require to make an annual
return to the HMRC.

There is nowhere in the Crofting Acts that allows a Grazings Committee to retain and
spend shareholders’ money on projects, village improvement works, or make gifts or
donations no matter how altruistic the purpose for which that money is to be spent.
Should townships wish to do this they should set up a separate, appropriate,
mechanism to do so and gather in any necessary funds from those willing to
participate.

Finally, I would like to say that the Crofting Commission is keen to see, wherever
possible, that crofting communities regulate themselves. It may be that shareholders
in your Common Grazings were unaware of the law and your committee has not
been being run in line with the requirements of the Crofting Act. If this is the case it
is important that shareholders and the committee hold a meeting to discuss this and
work together to ensure your Grazings Committee functions within the requirements
of the Crofting Acts.

Colin N Kennedy
Convener
Crofting Commission

Image Credit: Star Wars: Episode IV – A New Hope © Lucasfilm Ltd

Update: Is this why the post was deleted?: Oh yes you did!