Agriculture: latest from the Land Court

Although there have not been a significant number of agricultural cases this quarter, three recent cases are of relevance to both landlords and tenants. I also discuss the latest general licences issued for 2022 relating to wildlife in Scotland.

Tenant’s improvements

Cotland & Co v Charteris SLC/83/21 (9 February 2022) considered part 10, chapter 8 of the Land Reform (Scotland) Act 2016. The Act enables agricultural tenants to give notice to their landlord of improvements to their property that they wish to claim compensation for, on termination of the tenancy. An objecting landlord can in response give notice under s 115(1) of the Act, and if there is no agreement the tenant can apply to the Land Court for a determination under s 116(1). The court can approve the carrying out of the improvements, either unconditionally or subject to conditions, or reject approval. For approval the court must be satisfied that the landlord has benefited or will in the future benefit from the improvements, and that in all the circumstances it is “just and equitable” for compensation to be paid to the tenant on termination.

Court procedure is necessary only where the parties failed to agree on compensation before the close of the amnesty period in December 2020. In this case no agreement was reached, resulting in the landlord issuing an objection to the whole improvements made and the tenant applying to the court for approval. Although receipt of the application was acknowledged by the landlord’s agents, no substantive response was issued. The court held that in that event the improvements were unconditionally and wholly approved.

This decision should act as a stark warning to any landlord that there must be an effort to make a rebuttal in response to the tenant’s s 116(1) application, otherwise the landlord may end up liable to pay compensation in full.

Crofting Register challenges

Recently, the Land Court has heard two cases challenging entries in the Crofting Register via s 14(1) of the Crofting Reform (Scotland) Act 2010.

In Murray v Reid SLC/37/20 (16 December 2021) the applicant, tenant of croft 1 Manais, Isle of Harris challenged the common boundary with neighbouring number 2 Manais. The latter was registered by the respondent in late 2019. The court turned to historic information about the crofts and carried out a site inspection.

A number of factors, namely the applicant’s failure to provide a convincing estate map (the authenticity of the map provided was unknown and as such was “not regarded as binding by either the estate or the crofters”: para 28), together with the fact that there appeared to be clear evidence in favour of the boundary as registered, provided by the township clerk and physical features of march stones marking the disputed boundary on site, led to the registered boundary being upheld.

In Harrison v Macdonald SLC/66/20 (3 December 2021), the dispute was between two sisters in relation to their respective crofts, 14A and 14B Newmarket, which historically formed one croft. There was also an access element which I will not cover here.

The applicant, tenant of 14B, sought the removal of an area from the respondent’s registered croft. The respondent argued that the area had previously been decrofted and the parties had agreed to it being included in the respondent’s croft boundary. The court found in favour of the applicant in this instance, noting “there is no doubt that the land… was part of 14B” (para 10). Even if there was a formal agreement at the time of decrofting, “it could not be legally effective without a good deal of additional formal procedure so as to comply with crofting legislation” (para 11). The area still formed part of croft 14B and the Crofting Register was modified as a result.

In light of both of the above cases, when registering a croft it is imperative for boundaries to be checked and any discussions had at the time, properly documented and reflected in plans, in order to avoid future disputes arising.

NatureScot general licences

Following the enactment of the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020, there has been a growing effort to limit behaviour destructive to Scottish wildlife. The general licences issued by NatureScot for 2022 allow some members of the public, most commonly those working in rural businesses, to carry out otherwise illegal activities within limited time windows through the year. These activities include the killing of certain birds, with the overarching purpose of conserving wild birds. Other legitimate reasons may include prevention of damage or injury to livestock, crops or livestock foods. 

There are various conditions given in each licence which must be complied with by the licence holder; failure to do so can result in the business, as well as the perpetrator, being held criminally responsible. As such, it is prudent that rural business owners ensure that they and their staff are familiar with any licence conditions in order to avoid any unwanted liability or sanction.