DEVELOPMENT OF CROFTING LAW 1976-1993 - ECONOMIC DEVELOPMENT ABOVE AGRICULTURE, PLOTS GALORE AND NEW PRIORITIES FOR THE CROFTING SYSTEM

This is the fifth of 12 posts serialising my chapter on crofting law which appeared in “Land Reform in Scotland” edited by Malcolm Combe, Jayne Glass and Annie Tindley and published by Edinburgh University Press in 2020.

Reforms introduced by the Crofting Reform (Scotland) Act 1976 transformed the crofting system by bestowing upon crofters an absolute right to purchase a croft house and garden ground, together with a qualified right to purchase croft land, and an entitlement to share in the value of any land taken for development.[i] The focus on agricultural production, so prevalent in the 1950s, was by 1976 fading. It was thought that economic development ought to be prioritised over agriculture,[ii] and the 1976 Act certainly facilitated that. There has been discussion, in crofting circles, of a causal link between the 1976 reforms and the current deficiencies of the crofting system. Certainly, the 1976 Act introduced free market principles to a system which originally protected against an emerging free market economy, and allowed crofters to view their land as development land rather than agricultural land.

The case of Whitbread v Macdonald[iii] conferred further rights upon crofters, allowing them to seek a title deed to the croft or any part of it in the name of an unrelated third party. This led to a proliferation of house plots on the open market, with crofters receiving market value for the same, and the owners of the land receiving crofting (that is, nominal) value. This practice was brought to an end by the joint operation of the Crofting Reform (Scotland) Act 2010 which closed the loophole created by the case, and the financial crash of 2008, after which self-build mortgages became virtually unavailable for a time.[iv]

The 1976 Act also had the effect of creating a new type of person affected by crofting legislation. A ‘crofter’ is defined[v] as ‘the tenant of a croft’. There was no defined term to describe a crofter who purchases his croft. That person is no longer a crofter, because the tenancy is extinguished upon registration of the conveyance in his favour. [vi]Such persons were accepted to be, in law, landlords of a vacant croft. They were commonly called ‘owner-occupiers’, although that term was not defined until much later,[vii] and even then it was defined inadequately and has arguably caused more problems than it resolved.[viii]

Common grazings were another casualty of the 1976 Act. A tenanted croft commonly includes a right or share in common grazings, held as a pertinent of the tenancy. If the tenancy is assigned by the crofter, so is the grazings share (and any other pertinent of the tenancy, for example a right to use the foreshore or cut peat). However, when a crofter acquires title deed to a croft, the link between croft and share is severed, leaving the grazing share in tenancy. Coupled with the wider decline in the use of common grazings, this has resulted in numerous grazing shares being lost.

In 2012 the Crofting Commission made a reference to the Scottish Land Court under s. 53 of the 1993 Act,[ix] asking the Court to answer thirty interrelated questions pertaining in one way or another to common grazings.[x] In a paper presented to the Faculty of Solicitors of the Highlands and Islands in 2012 by the advocate Iain F. MacLean (now Deputy Chair of the Scottish Land Court), the Reference was described as being ‘like a particularly nasty examination paper’.[xi] (MacLean appeared in the hearing on the matter as Amicus Curiae.)[xii] With the benefit of hindsight, it is now obvious that the 1976 reforms, coupled with the Whitbread v Macdonald case, advanced the rights of the individual crofter to an unsustainable degree. The predictable consequence has been that the pendulum on the spectrum of individual versus collective rights has now moved away once again from the former towards the latter.

[i] Crofters (Scotland) Act 1993 s. 21

[ii] Final Report of the Committee of Enquiry on Crofting, page.

[iii] 1992 SC 479; 1992 SLT 1144.

[iv] Combe, M. M. (2010) ‘Crofting, nominee sales and the separation of powers’, Edinburgh Law Review, 14, 458-463.

MacAskill, J (1999) We have Won the Land, Acair, Stornoway p.50-54 for discussion of the relevance of this decision in the purchase of the North Assynt Estate by the Assynt Crofters Trust.

[v] Crofters (Scotland) Act 1993, s. 3(3).

[vi] Cameron v Bank of Scotland 1989 SLT (Land Ct) 38.

[vii] Crofters (Scotland) Act 1993 (as amended by the Crofting Reform (Scotland) Act 2010  s. 19B

[viii] MacLellan, E., ‘The Curse of s. 19B’, 15 September 2017, <http://camus.scot/curse-s-19b> (last accessed 28 March 2019).

[ix] Reference by the Commission under s. 53 of the 1993 Act (Application RN SLC/121/11 - Order of 3 August 2012).

[x] Inkster, B. (2013) ‘Common grazing shares – where are we now?’, The Journal Online 58(1) 21 January 2013 <http://www.journalonline.co.uk/Magazine/58-1/1012083.aspx> [last accessed 28 March 2019].

[xi] MacLean, ‘Recent Developments in Crofting Law’, paragraph 36, available at <http://www.terrafirmachambers.com/articles/RecentDevelopmentsInCroftingLaw.pdf> (last accessed 28 March 2019).

[xii] “friend of the court”.

The next post, which covers the development of crofting law between 1993-1997, will be published next week on this website. See note below for details of all 12 posts.

As always, if you need help or wish to discuss crofting law, do get in touch.

Eilidh

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Note Referred To:-

Introduction

Development of Crofting Law

1886-1911

1911-1955

1955-1976

1976-1993

1993-1997

1997-2019

Challenges

Crofting legislation

Crofting law v land reform

The Conflicting Priorities of the Crofting System

The Impossibility of Purchase

Conclusion