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Crofting Law Update

Crofting Law Update – from our crofting specialist, Jeremy Benfield

Jeremy has worked at MacPhee and Partners for 19 years and heads up the Crofting Law Department. His expertise has been recognised by the Law Society through its Specialist Accreditation Scheme. Jeremy is one of only two Solicitors in Scotland accredited by the Law Society as a Specialist in Crofting Law.

Statutory Duties – How Onerous are they?

The hard won rights that crofters secured in 1886 have broadly been carried forward in subsequent legislation. These rights have long gone hand in hand with regulatory control by the Commission, whose consent must be obtained to assignations, re-lets, decrofting, division – in fact almost everything other than succession. Crofters are used to this regulation – but recently these controls have been extended by a whole new layer of state control, imposed on both tenants and owner occupier crofters through the introduction of “statutory duties” coupled with a legal obligation to complete annual return to the Commission declaring whether you are complying with those duties. It Is difficult to think of another sphere of life where peoples’ actions as tenants – or indeed as owners of land – are so closely scrutinised, regulated and controlled by the State. The Scottish Government argues that this level of intervention in one particular sector of agricultural land holdings – whether in tenancy or owned – is justified in furthering its policy objective of sustaining rural populations as well as realising other economic and cultural benefits.

The statutory duties – and the need to return to census – are a source of considerable anxiety and concern to many crofters. The duties are:-

  1. To be ordinarily resident on or within 32km of the croft;
  2. Not to misuse or neglect the croft. A croft is misused if it is used for some purpose other than it being cultivated or used for some other consented purposeful use. A croft is neglected if it doesn’t meet the requirements set out in the Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2004.
  3. (i) To cultivate the croft or put it to some other purposeful use so that every part which is capable of being so used is put to such use; (ii) To keep the croft in a fit state for cultivation.

On the Face of it these duties do appear quite onerous. The duties were introduced by the Crofting reform (Scotland) Act 2010 but, until a recent Land Court Case reported in October 2018, had not been subject to any detailed analysis to identify the benchmark against which compliance should be assessed. The land Court Case was Malone-v-Pattison and the judgement can be viewed on the Land Court’s website www.scottish-land-court.org.uk. Jeremy was the Solicitor instructed by the croft tenant. A number of interesting questions were debated as to the meaning and extent of the statutory duties, including issues of exactly what is meant by cultivation – for example if the cultivation involves livestock, is there a requirement that the purpose of keeping the livestock must be for the production of food; and the meaning of “every part of the croft which is capable of being cultivated” – what resources in terms of labour and cost should be taken into account in considering whether the land is “capable” of being cultivated? These questions are important, not only to tenants but also to owner occupiers as the Commission can, after due process, require an owner occupier to re-let the croft if they are found to be in breach.

The Court decision is detailed but, in broad terms, the Court favoured the arguments made on behalf of the tenant and took a pragmatic and reasonable approach rather than interpreting the duties so as to impose the more stringent standard of compliance which had been argued for by the landlord.

This interesting Land Court case is one of several that Jeremy has been involved in recently which have been recognised as of particular significance by the Land Court and which are included in the Court’s annual reports.

Crofting Law continues to develop; the Land Court has had a number of cases before it recently concerning the registration of crofts in the map-based Crofting Register and this area continues to present new issues as the case law develops. The Scottish Government is also continuing to review certain aspects of Crofting Law and in September 2019 Fergus Ewing asked stakeholders to identify 5 to 10 priority changes that they would like to see considered for legislative reform.

Crofting Law Report – paper by Law Society of Scotland

Last month (October 2020) the Law Society of Scotland issued a paper on crofting law reform; this can be accessed at https://www.lawscot.org.uk/media/369709/20-10-20-croft-final-paper.pdf.  The paper focused on:-

  1. Aspects of succession
  2. Owner occupier status
  3. Statutory conditions of tenure
  4. Definition of “crofting community”

There is not space in this article to summaries all the issues covered in the paper – but it does highlight many of the practical and topical issues which are confronted in crofting law legal practice.  One particular issue – which is unclear in terms of the legislation – is whether owner occupier crofters must be people (or a number of people) or whether other legal entities such as limited companies, Trusts, charity bodies etc. qualify.  The Crofting Commissions present policy is that there is no justification for restricting those qualifying to natural persons.

Other issues have caused the review of crofting legislation to slip down the government agenda – however, as the Law Society paper illustrates, there are many issues that would benefit from review/clarification.

Care Home Charges and Croft Tenacies

Finally, the issue of care home charges is a matter which is very much in people’s minds and one topical issue is the question of whether a croft tenancy – which might well include the croft house – is an asset which councils should take into account in assessing an individual’s financial resources and, if so, the basis on which that asset should be valued. This issue had proved particularly contentious in the Western Isles where the Council have adopted a forthright policy of treating croft tenancies as capital assets that require to be taken into account in the assessment of care homes charges.   A public petition was submitted to the Scottish Parliament urging the government to exempt croft tenancies from financial assessment for care charges.  On 8th October the Petitions Committee closed the petition on the basis that the government would not change the charging guidance and that individual local authorities must consider how best to apply the regulations.  It remains to be seen what policies will be followed by different Councils, however the SNP Group in Comhairle nan Eilean Siar is continuing to urge the Council to reconsider its position.  Links to submissions made to the Petitions Committee and the official report can be accessed through: http://www.parliament.scot/GettingInvolved/petitions/protectcroftsfromcarecharges

2020 – A Challenging Year

2020 has seen court cases put on hold and regulatory applications seriously delayed with SGRPID Reports (an essential element of many Commissions decisions) suspended for a number of months.  However all agencies are trying to find ways to progress matters and Jeremy has a Land Court Hearing fixed for mid-November which will be the first time the Land Court has conducted a Legal Debate by virtual technology.

Despite the frustrations, all instructions to the Crofting Law Department can be progress and it is clear that crofting work will continue to raise new legal issues in this area of law which, from an initial simply legislative frame work some 140 years ago, has become increasing complex as layer and layer of legislation has been added.

Jeremy is contactable on 01397701000 or [email protected]