Tag Archives: Court of Session

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]

Is the Crofting Commission a Tribunal?

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Is the Crofting Commission a tribunal?

Order, order. Let the trial commence.

The Scottish Government have been looking for views on draft regulations prepared by them to  remove the Crofting Commission from the list of tribunals in the Tribunals (Scotland) Act 2014.

I have urged the Scottish Government to exercise caution in removing the Crofting Commission from the list of tribunals in the Tribunals (Scotland) Act 2014. I consider that such a move may be premature pending the outcome of an investigation into the Crofting Commission’s decisions to remove grazings committees from office.

The Scottish Government’s call for views as part of their consultation reads:-

The Crofting Commission is currently listed as a tribunal under schedule 1 of the Tribunals (Scotland) Act 2014 (the 2014 Act). The tribunals listed in Schedule 1 of the 2014 Act were taken from a report by the Administrative Justice and Tribunals Council (AJTC), which listed tribunals they considered to be devolved Scottish tribunals. The AJTC was a UK body (with a Scottish Committee) established by the Tribunals, Courts and Enforcement Act 2007.

The AJTC’s remit was defined in statute as having to keep the administrative justice system under review and report on the constitution and working of listed tribunals. At that time Ministers were minded not to remove the Crofting Commission’s status as a tribunal so as to keep it within the supervisory remit of the AJTC.

The AJTC was abolished in 2013 and the successor body in Scotland did not undertake the supervisory role carried out by them.  As there is no longer a supervisory body and the Scottish Minister’s view that the Crofting Commission is not a tribunal in the true sense of the word we are proposing to remove them from the list of tribunals in the 2014 Act.

If there is no longer a supervisory body for tribunals and the Scottish Government previously thought that the Crofting Commission should be supervised it is perhaps no wonder that we are where we are at due to lack of supervision!

The Faculty of Advocates have stated that they agree with the reasoning behind the Scottish Government’s plan to do so. However, I am of the view that the Faculty of Advocates are perhaps at a disadvantage in not seeing at the coalface how the Crofting Commission are actually handling their decision making process and aspects thereof that make them very much a tribunal, but one that appears to be out of control. This is certainly the case with regard to the recent removal by the Crofting Commission from office of three grazings committees.

Last week I submitted my own response to the Scottish Government’s consultation on the matter. It reads:-

Whilst it is stated that it is the “Scottish Minister’s view that the Crofting Commission is not a tribunal in the true sense of the word” recent events would suggest that the Crofting Commission is in many respects acting as a tribunal but without the procedures, checks and balances that one would normally associate with a tribunal.

The Crofting Commission has been using the power vested in it under and in terms of section 47(8) of the Crofters (Scotland) Act 1993 to remove grazings committees from office. There have been three such removals since December 2015.

This has created a lot of controversy with allegations of abuse of power and calls for an investigation of the Commission.

It is submitted that in taking action to remove grazings committees from office the Crofting Commission has been acting as a tribunal.

However, it would appear that no proper procedures, as would be expected from a tribunal, have been followed by them in so doing.

Article 6(1) of the European Convention of Human Rights and Fundamental Freedoms (ECHR) provides:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

Where the Crofting Commission is determining a civil right or obligation it must ensure that its processes are Article 6(1) compliant.  There are three key aspects to this (1) Security of tenure of the members; (2) Absence of bias amongst the members of the tribunal; (3) Absence of procedural unfairness.

It is considered that the manner in which the Crofting Commission has carried out its decision making under the said section 47(8) was non-compliant and, indeed, that the said section 47(8) is not ECHR compliant.

More worrying still is that the Crofting Commission are currently arguing that an appeal of a decision made by it under the said section 47(8) cannot be brought before the Scottish Land Court. If this is correct (and a decision on this procedural technicality is currently awaited from the Scottish Land Court) then the only right of redress may be judicial review via the Court of Session.

Given all of this it would, in my view, be very unwise to remove at this stage reference to the Crofting Commission from the Tribunals (Scotland) Act 2014. It may well be that Scottish Ministers in considering the alleged abuse of power within the Crofting Commission might want to consider the possible benefits of utilising the Tribunals (Scotland) Act 2014 to remedy some of the issues and problems actually highlighted above. Of course there may be other ways of achieving the same result.

In all the circumstances it is considered premature, at the moment, for the Tribunals (Scotland) Act 2014 to be amended in any way that would exclude the Crofting Commission therefrom.

Brian Inkster

Research Credit: I am indebted to Alistair Sloan for researching, at my request, the detail of the Tribunals (Scotland) Act 2014 and the ECHR aspects involved.

The Year of The Crofting Law Sump

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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

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