Decrofting policy dispute to go to Court of Session

The Crofting Commission is seeking a ruling from the Court of Session on an question of law on which its position was recently held to be wrong by the Scottish Land Court.

For the past two years the Commission has adopted 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, which it has not published. 

It has left some owners 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.

In December the Land Court, in a case taken by two affected owners, Mr & Mrs MacGillivray of North Ballachulish, decided that the Commission was 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 Commission has now lodged a request that a special case be stated for the opinion of the Court of Session on this question of law, a move greeted with disappointment by one crofting lawyer, Brian Inkster of Inksters Solicitors.

Mr Inkster commented: “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."

He added: "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.”