Tag Archives: Decrofting Direction

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

The 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

A pivotal year for Crofting Law

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This 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 30^th 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

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

Decrofting Bill

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It was announced today by Paul Wheelhouse MSP, Minister for Environment and Climate Change with responsibility for crofting, that the Scottish Government intends to bring forward a Bill, as soon as possible after the Easter Recess, to address the “flaw” in the Crofters (Scotland) Act 1993 that “inadvertently limits the circumstances in which owner-occupier crofters can apply to decroft land”. Not so much limits than completely prevents as far as the information issued to date by the Crofting Commission would suggest.

I have, of course, suggested that the existing legislation can be interpreted in such a way to allow decrofting of owner-occupied crofts. However, with differing opinions (although the Crofting Commission’s legal advice remains unseen) it is sensible for the position to be resolved beyond any doubt. Properly drafted legislation will hopefully do just that. A reference to the Land Court under section 53(1) of the 1993 Act could have done the same thing. However, the Crofting Commission would have faced the possibility of being found to have got it wrong using that route so perhaps it was not the favoured one.

In response to a question from Claire Baker MSP it was clarified by Paul Wheelhouse MSP that:-

… we are not proposing emergency legislation; rather, we are talking about a short crofting Bill that will – with the will of Parliament – be subject to expedited procedures.

Tavish Scott MSP stated (following the debate):-

Crofters across Shetland are directly affected by this shambles, so I welcome the Scottish government’s commitment to bring forward a proposed law change after the Easter break, but I want this done quickly. I will certainly support legislation that solves the problem, but this uncertainty affecting crofters needs to be ended quickly and I am urging the minister to work with MSPs across Parliament to achieve cross party agreement on both the new law and the timescale. Speed is of the essence.

Whilst I would agree with these sentiments it is also important that the Scottish Government get it right. Thus the new Bill needs to be handled with care.

Dr Alasdair Allan MSP asked what would be done “to seek crofters’ views on the Bill’s content as it makes its way through Parliament”. Paul Wheelhouse MSP indicated that the Scottish Government would “provide due opportunity for scrutiny” and he would be happy to consider any particular suggestions on how to consult crofters in Dr Allan’s constituency.

Rhoda Grant MSP asked whether the Government would “publish its legal advice, so that solicitors can properly advise clients”. Paul Wheelhouse MSP responded:-

As far as legal advice is concerned, I am sure that Rhoda Grant knows the contstraints that exist in that regard. In progressing the Bill, we will try to make it as clear as possible why we think that the legislation is flawed and what we need to do to rectify that. We will try to give as much clarity as possible on the rationale for the action that we propose to take.

I am not so sure that constraints actually exist on publishing the legal advice given the circumstances that we have here. However, the reassurance of clarity being given is welcome in view of the fact that such clarity has been absent to date.

Jamie McGrigor MSP asked:-

Will the legislation clarify the legal position on decrofting a croft that has been divided? The Crofting Commission say that people who own part of a croft cannot decroft in that part without the concurrence of the neighbours who own the remainder of what was the original croft.

Paul Wheelhouse MSP did not have an immediate answer to this question but the Minister promised to write a letter to Mr McGrigor to provide clarity on this point and undertook “to address the matter”. This is an area where the Crofting Commission may well be misinterpreting the legislation and, if not, another area where the 1993 Act is unlikely to be following the intent of Parliament. It would therefore be a folly not to tidy this up at the same time. The consequences of the Commission’s recent policy announcement will perhaps not be immediately clear but I believe will, through time, come back to haunt the Scottish Government if it is not dealt with effectively and decisively now.

When questioned by Claudia Beamish MSP on the question of people who have already been granted decrofting directions not having title to their property, Paul Wheelhouse MSP stated that “title is not affected for people in that position”. I would beg to differ on that point (I believe titles could arguably, in certain circumstances, be null and void) and do not believe the potential title consequences were thought through by the Commission when it decided that what it was doing was unlawful. However, in his earlier statement Paul Wheelhouse MSP said:-

There are also over 170 cases, in which the Commission had already granted approval to decroft, in good faith, before this problem came to light.

In the Government’s view, it is essential that their situation is addressed as part of the solution, and I hope Parliament will support that.

If the legislation retrospectively legitimises these particular decrofting directions then any potential title issues should also be resolved.

I have previously suggested that decrofting applications by owner-occupier crofters should be processed to the point of issue (but not issued) pending a solution to the situation being found. It was good to see Paul Wheelhouse MSP endorsing this view but it appears to be dependent upon the Crofting Commission agreeing to such a course of action rather than being directed to do so. Let’s hope that they at least see sense on that front. However, in response to a question from Jean Urquhart MSP it was suggested by Paul Wheelhouse MSP that owner-occupier crofters should “wait until there is clarity, following the amendment to the law”, before lodging applications to decroft. If a decision is taken to process applications already lodged to the point of issuing a Decrofting Direction, but not actually issuing it until the remedial legislation is in place, then I can see no good reason for treating new applications any differently.

Tavish Scott MSP said (following the debate):-

I am very concerned that many crofters have little or no faith in the Commission.

They have an important regulatory role over crofting but their handling of this matter has brought real financial difficulties to many people.

So the Commission has a big task in re-establishing its credibility in the crofting counties.

Time will tell. In the meantime I will be following the passage of the new Bill with great interest and will, of course, provide my thoughts on it on the Crofting Law Blog.

Brian Inkster