Tag Archives: feu dispositions

Crofting is about People

This is a guest post contributed by a concerned Upper Coll Villager:-

I keep on asking how they could have sacked a committee, three of whose members had only been on it for 9 months. They had not been on any of the previous committees. How could they have had time to be responsible for anything?

I have been puzzled at the lack of public support from other villages, apart from the night in Stornoway Town Hall, but I have had it said to me several times that they have all done the kind of things for the good of the community, and for which we had previously been praised, and now they fear themselves being targeted. They have done precisely the same kind of things we are now being chastised for. VAT, small donations, foregoing share of feus in favour of our hospice. Ridiculous.

Crofting is not about a few sheep or a few cattle, it is about people and keeping people in our crofting areas. No one can make any kind of a living off crofting in our area. Nevertheless it is an important mechanism for maintaining “community” and all that means. Over half the townships don’t have a committee as a result of loss of “community”. The Commission instead of encouraging the ones which do exist are hounding them.

I have been told of one committee that has been disbanded until they see what the outcome of our situation is. They don’t want to be made personally responsible or be targeted the way our committee has been. They are all waiting to see what happens to us. This is no longer about Upper Coll but about the whole essence of what constitutes a “live” crofting community.

It is very difficult at times to remember the precise details of events of years ago. As the ”constable” has our minute book we don’t have our memory jogger.

The Gearraidh Ghuirm road construction, our esteemed constable seems to have placed such emphasis on, was to help the new householders get good access to their houses, as the village, whilst encouraging and accepting applications in an area of moorland, which was so useless it hadn’t even been fenced, made it quite clear to the purchasers, while they were getting the fues cheaply, the responsibility for the road was theirs and theirs only.

In a spirit of helpfulness, as was the case with the football and recreational facilities, we had enabled to happen, and for which again we are now many years later criticised, the village facilitated it by making application to the Council for money from it’s Unadopted Roads budget. The cash was provided by the Council and the feu holders. The village’s contribution was mainly “in kind”, material from the gravel pit we have developed ourselves over the years. Our ‘constable’ seems determined to find fault and tries to say by looking at our cashbook accounts of EIGHT years ago that we caused shareholders financial loss. Rubbish and now we have a street of houses, on what was useless ground, and up to 20 children … and we are now being hammered for being resourceful in enabling that to happen.

Now that our great ‘constable’ has highlighted what was a beneficial local practice which we all benefitted from, is there going to be pressure on the landlord to put a stop to it? I hope not, but him poking his nose in could very well have that effect.

I have seen the immense strain this has so unfairly placed on the former committee. Their families, who are not used to being under this kind of legal and media focus are completely perplexed by it all. I feel personally insulted on behalf of myself and the others of us whose forefathers created this village, that these people have demeaned all we have done for so many years, which led us to being widely recognised as a forward looking and well run grazings village.

Ivor Matheson and his ally Kenneth Macleod, who has not one facility for his cattle on his wife’s croft and is dependent on common grazings, have much to answer for. Those in authority who didn’t throw out their nonsensical complaints but used them to enable them to peddle some weird agenda have much more to answer for.

A Concerned Upper Coll Villager

Image Credit:-

Registers of Scotland ‘click your croft’ photography competition 2014.

Heather Gray of Shetland won with her photo ‘Hentin Totties’, which shows a family of all ages working the land.

The competition, run in association with the Scottish Crofting Federation and the Crofting Commission, set out to explore what this traditional way of life means to crofters in 2014.

Miss Gray said: “I suppose my main inspiration for the photo is family. Seeing the extended family from grannies to toddlers coming together and helping out with the yearly crop – it just makes you smile.”

The Scottish Farmer adds balance to the tales of the Upper Coll ‘Constable’

The Wrong Grazings Committee!

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Eh by gum, Gromit, no one told me that they appointed a new grazings committee every three years! Pass the cheese please.

It was reported in The Scottish Farmer this week that:-

New evidence has been revealed that appears to justify the Crofting Commission’s unpopular intervention in the financial affairs of a common grazings committee.

This ‘evidence’ was presented in a letter to shareholders in the Upper Coll Common Grazings by the grazings ‘constable’ Colin Souter. A grazings ‘constable’ illegally appointed in my view, and in the view of others including, ironically, the Crofting Commission themselves.

Many of the allegations made by Mr Souter actually, it transpires, relate to decisions made by shareholders when previous grazings committees were in power. Not the latest one which the Crofting Commission summarily removed from office for producing five years of financial statements prepared by an accountant rather than five years of “audited” accounts as demanded unfairly by the Commission.

Actions by past grazings committees cannot be used as evidence to justify the removal from office of a grazings committee that had no part in those actions.

Indeed it would appear that Mr Souter has been spending his time (and presumably as a result the shareholders money) trawling through the history of Upper Coll Common Grazings attempting to find fault wherever he can. His efforts in this regard go way back before the five year ‘audit’ period sought by the Crofting Commission.

Indeed the two main issues highlighted in the report by The Scottish Farmer date back to 2008/09. There have been three new grazings committees at Upper Coll since then!

Gordon Davidson reports in The Scottish Farmer:-

Top of his list was an application lodged with Comhairle Nan Eilean Siar seeking a grant under their Unadopted Road Upgrade Scheme, seeking £10,000 of matched funding to be spent on upgrading the landlord’s Ghearraidh Ghuirm private road.

In doing so, the former committee undertook to spend £20,000, including the CNES grant, of shareholders’ money on upgrading this section of road and also accepted the subsequent road maintenance obligation, in perpetuity – a decision of clear benefit to prospective few [sic – should have been “feu”] buyers, but with no apparent link to the maintenance or improvement of the common grazing.

“Thus, the spending of shareholders’ money in this way, was outwith the power of the committee at that time, meaning they acted outside of the law and the legal protection normally afforded,” noted Mr Souter.

This is what certain shareholders at Upper Coll have to say about this particular matter in a letter issued to shareholders in response to the one issued by Mr Souter:-

He accuses the then Grazings Committee of match funding the improvements to the Gearraidh Ghuirm Road behind Donald Campbell’s Garage. This is grossly untrue. The village did not put any money into this. The Councillors then in office helped facilitate the financial match funding from sources including contributions from residents. The village used some of this money to repair the road going out to the quarry, which in fact was an aid to the shareholders using the quarry and the peat-road! This was in 2008!!

Gordon Davidson also reports in The Scottish Farmer that Colin Souter:-

also found that the former committee had, in 2008/09 sought to earmark areas of common grazings land to be sold off as housing plots, and paid for the feu design work out of shareholders’ grazing funds, again acting outside of the law.

I asked shareholders at Upper Coll about this and was told that it was to allow crofting families in the township to remain in the township by allocating to them house sites on land that was not much use for grazing purposes. Any costs associated with that would be more than recouped when house sites were sold and compensation on resumption received.

Indeed consent to the sale of one such house site was raised as an agenda item at the meeting in November 2015 attended by the Crofting Commission, including Convener Colin Kennedy. This was approved at that meeting by the shareholders present. Of course the resumption application would be advertised in due course giving all and every shareholder the right to object should they wish to do so.

The house site under debate in November 2015 was, rather ironically, allocated to a relation of Ivor Matheson who brought the original complaint against the grazings committee and was so vocal in this week’s Scottish Farmer in support of the actions of Colin Souter which suggest this enterprising initiative on the part of the 2008/09 grazings committee to have been unlawful!

Ultimately shareholder funds are there to be utilised as shareholders want them to be. If all shareholders are happy to divert funds into a scheme on the common grazings that will result in benefit to members of the shareholders families, strengthen the crofting community and ultimately give a financial return what is wrong with that?

I do not believe that even Ivor Matheson would be looking for repayment of his share of the £520 (i.e. £12.38) spent on the feu design work given the benefit that small payment has had to his family.

It is clear that Mr Souter is making assumptions left, right and centre without appraising himself of the true facts. He is meddling in matters that are of no concern of his. He appears to have a goal, possibly at the behest of the master(s) who appointed him, to find fault with the former committee to justify his existence. He forgets he was illegally appointed and, like the Crofting Commission, has not been able to justify with reference to statute or case law the validity of his appointment. He forgets that grazings committees are appointed every three years and he cannot point the finger of blame at the last committee for the actions of their predecessors.

Ultimately, however, Mr Souter has produced a list of petty ‘faults’ most of which can be dismissed out of hand. He has certainly failed to produce the ‘gamechanger‘ that his master(s) may have wished him to find but that he had no remit to ever look for in the first place.

It should also be borne in mind that the initial action by the Crofting Commission against the former grazings committee at Upper Coll that ultimately resulted in the ‘appointment’ of Mr Souter centred around their misinterpretation of the law. A misinterpretation that the Commission have been reprimanded for by Fergus Ewing MSP and apparently has been accepted as such by them.

It has become a farce (although arguably has been for some time). Mr Souter and his master(s) look more ridiculous by the day over their handling of this whole sorry affair. In the process it is not reflecting well on the Scottish Government who have overarching responsibility for crofting.

In the letter of ‘appointment’ from the Crofting Commission addressed to Mr Souter it is stated:-

The appointment is for 6 months from the date of the Order. However the intention is that this should be a short term measure and once any outstanding actions are discharged, that you arrange a meeting of shareholders at which you will resign and a new committee will be elected by the shareholders to manage the grazings in accordance with the Regulations and the Act.

So the Crofting Commission saw the ‘appointment’ as short term and possibly expected it to have come to an end by now. Mr Souter’s duty was “to discharge any outstanding actions“. It is unclear whether he has in fact even applied himself to such a task and I will look at that in a further blog post. He appears, on the face of it, to have concentrated on a forensic examination of the history of Upper Coll Common Grazings. Something that he had no remit to do even if he had been legally appointed as a grazings constable.

The majority of shareholders at Upper Coll who attended a meeting convened for that purpose (there being no dissenters) have made it clear that they want nothing more to do with Mr Souter. They want to form a new grazings committee.

Mr Souter should respect the wishes of the shareholders who he supposedly represents. He should now do the honourable thing and ‘resign’ from his role as grazings ‘constable’ without further delay. He does not actually need to arrange a meeting of shareholders to do so, he can simply send them a letter or advise the Crofting Commission of his decision to do so and let them advise the shareholders accordingly.

This is what the similarly illegally appointed grazings constable at Mangersta Common Grazings saw fit to sensibly do.

Although arguably Colin Souter cannot resign from an illegal position that gives him no status or authority in the first place.

But the ‘resignation’ (as was the case in Mangersta) may have symbolic significance. It may at least draw a line under his interference in the workings of a common grazings where the vast majority of the shareholders simply wish to get on by themselves with controlling their own destiny and their own finances. They want to do so for the benefit of a community that Mr Souter and his master(s) appear intent on destroying.

Brian Inkster

Image Credit: Wallace & Gromit in The Wrong Trousers © Aardman Animations

Crofters and Lawyers

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It isn’t just the Crofting Commission who can instruct crofting law advice!

It was reported in The Scottish Farmer this week that, as part of the ‘findings’ of the illegally appointed grazings ‘constable’ to Upper Coll Common Grazings, Colin Souter had said in a letter to shareholders that:-

I have also written to the solicitor, Brian Inkster who was apparently engaged by the former Committee, to provide them with legal advice in their dispute with the Commission. Mr Inkster was paid £600 in fees from shareholders’ funds in April 2016. There is nothing in the 1993 Act which permits shareholders’ funds to be used in this way. In addition, there is no record in the Minutes of the decision to engage Mr Inkster, the brief involved or the paying of his invoice having been put to or approved by individual shareholders. Thus, the spending of shareholders’ money in this way, was outwith the power of the Committee at that time, meaning they acted outside of the law and the legal protection normally afforded. Such arbitrary decision-making is outside of the power of the Committee, where it commits spending and serves only to undermine the trust between Committee and shareholders.

In the first letter received by me from Mr Souter on this topic he boldly states:-

Nowhere in the Act, is it provided that shareholders’ money can legitimately be used to pay for legal services when a Grazings Committee is in dispute with any organisation, body or individual. For such to even be contemplated, I would consider it necessary for at least a unanimous vote by shareholders, to support the move. However, there is no indication in the Minute records of such a meeting, discussion or vote having taken place amongst shareholders. I consider it would be highly questionable, even under such circumstances, faced with the narrow terms of statutory responsibility held by Grazings Committees, that shareholders’ money, held for spending on maintenance or improvement of the common grazing, could legitimately be spent on legal advice from any solicitor.

With acceptance of this point, comes the ethical question of receiving the money, fully understanding the source and yet presenting the cheque for payment, (as an expert in Crofting legislation), with specific knowledge of the restrictions under the Act.

He then went on to ask me, in the circumstances, to send him a cheque for £600!

In the absence of receiving such a cheque from me he wrote again this time seeking the payment once more and also asking me for copies of certain documents that he would be willing to pay me a fee to receive. A bit ironic surely that he can pay solicitors fees all of a sudden when supposedly representing shareholders who he claims cannot!

He also, in this most recent letter, went on to threaten me:-

I offer this additional and final opportunity for you to respond on the matters raised in the initial correspondence and that above, before deciding upon the necessity for further action, which if taken, may well afford the benefit of free publicity but with the detail being made public, may nevertheless impact adversely upon your professional standing.

He concludes with the threat of raising a small-claims action against me presumably in the Sheriff Court.

View from Upper Coll

This is what certain shareholders at Upper Coll have to say about the matter in a letter issued to shareholders in response to the one issued by Mr Souter:-

He questions the legality of grazings committees seeking and paying for legal advice. In our case, Inksters Solicitors, who are well versed in Crofting Law were asked by the Grazing Committee to investigate the legality of the Upper Coll shareholders having to distribute the money received from feu dispositions with such haste by the Crofting Commission. He was given a limit of up to £600 to do so. This was actioned prior to the Grazings Committee being put out of office.

Inksters in their investigations were instrumental in the Crofting Commission performing a U-turn on their directive to Upper Coll (it was found that they were in fact acting outside the law!) and saving countless grazings a considerable amount of money!

It is ironic that Mr Souter finds fault with Upper Coll shareholders employing a legal expert to successfully show the injustices of the Crofting Commission whilst he himself while acting for the Upper Coll shareholders (in his opinion!) seeks the counsel of a QC to enquire as to the legitimacy of the Upper Coll Grazings being VAT registered!!

These shareholders at Upper Coll also make the following general point:-

The constable seems unable to understand that in the spirit of openness and transparency over the years in Upper Coll, all meetings were advertised and open to all shareholders, that all decisions were taken by the majority of those attending and that all these decisions were minuted.

He is also under the mistaken impression that the clerk took actions on his own initiative. That is untrue. The clerk’s actions were always as a result of decisions and actions approved by the majority of shareholders. If the clerk was at fault so were all those present at meetings who asked him to act on their behalf.

The constable seems to place blame on successive committees, when in fact all actions were approved at open shareholder meetings. The clerk, unlike the constable, only took action after being instructed to do so by shareholders.

View from the Crofting Law Blog

Mr Souter clearly has no idea about what his role is and what he should be doing even if he was appointed legally as a grazings constable which he has not been. On one hand (according to him) shareholders cannot seek legal advice, but on the other hand he can take unilateral action on their behalf (and presumably at their cost) with no discussion or agreement from them whatsoever.

He hasn’t a clue about the law and given that he thinks shareholders cannot seek legal advice under and in terms of the Crofters (Scotland) Act 1993 he will presumably not be able to seek such advice himself to assist in his deliberations.

Having said that Mr Souter is apparently in receipt “of legal opinion from Queen’s Counsel” on whether Grazings Committees can register for VAT. It is not clear whether he, the Crofting Commission or some other party instructed this opinion. I will explore this specifically and in detail in future blog posts.

However, he seems able to instruct “agents“. It has been reported that:-

He said shareholders are “well aware” from his reports that all scheme applications due were completed by agents acting on behalf of the grazings and “processed accordingly and no financial loss has been suffered”.

A lawyer is simply an agent, no different surely from instructing any other agent to do work on your behalf that may be required?

In any event a right for crofters to instruct lawyers does not need to be contained in tablets of stone within the Crofting Acts. It is a fundamental human right. Try the Magna Carta for starters.

Shareholders in common grazings have been instructing lawyers to represent and provide them with advice in numerous matters over many years. Is Mr Souter really suggesting that all those lawyers need to repay fees received for work undertaken and advice given?

Is Mr Souter really saying that shareholders could not have a lawyer representing them in an action brought against them in the Scottish Land Court?

Does Mr Souter really think it is okay for the Crofting Commission to hire top QCs in their questionable battles against shareholders in common grazings but that those shareholders cannot be afforded access to lawyers themselves?

Has Mr Souter read the Guidance Notes issued by the Crofting Commission on the Management and Use of Common Grazings? These Guidance Notes contain an “Important note” that reads:-

The following guidance is intended to assist grazings committees with regard to the use of grazings regulations. The guidance does not constitute legal advice, and should not be construed as such. Should a grazings committee and/or shareholder require legal advice on a matter concerning common grazings, independent legal advice should be sought from a suitably qualified solicitor.

So even Mr Souter’s masters, who are not often commended for a common sense approach to matters, acknowledge and accept that shareholders can and should seek their own independent legal advice.

Should Mr Souter carry out his threat and raise court action against my law firm I will have no difficulty in defending it and calling the Crofting Commission in as a party to it. There will be a counterclaim for the time, inconvenience and costs caused to me unnecessarily by Mr Souter.

I do not recognise Mr Souter as having any legal standing or authority. His appointment was illegal and even the Crofting Commission knew this to be the case when making it.

Accordingly, I will not be replying directly to his letters. Instead I will be writing to the Cabinet Secretary for the Rural Economy and Connectivity, Fergus Ewing MSP, who has responsibility for crofting. I will, out of courtesy, copy my letter to Mr Souter.

I will be expressing my concerns to Mr Ewing about this illegal ‘constable’ being allowed to wreak havoc by the Crofting Commission. Mr Ewing has already had to rein in Convener Colin Kennedy. Now it is time for him to rein in another Colin.

Brian Inkster

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