Decision of the Scottish Land Court

Scottish Ministers (Applicant)
v
Iain MacLeod (Respondent)

Case reference SLC/05/19
before
John Smith and Tom Campbell (Divisional Court)
20 January 2020

Introduction

[1] This is an application by the Scottish Ministers for authority to resume an area of land extending to 0.814 hectares or thereby, forming part of the common grazings of the township of Stenscholl, for the purpose of selling the said area to Staffin Community Trust, for development as the site of affordable housing and commercial units. The application is supported by all the shareholders in the common grazings except Mr Iain MacLeod, whose croft is nearest to the proposed development site.

[2] Mr MacLeod submitted written objections to the application, culminating in a written statement dated 4 December 2019, but did not appear at the hearing which took place in Portree Sheriff Court on 10 December 2019, after leaving it to the court to decide if an oral hearing was appropriate. At that hearing the Scottish Ministers were represented by Mrs Susan Leslie of Morton Fraser LLP, Solicitors, Edinburgh.

The Legislation

[3] The relevant legislation is as follows, all references being to the Crofters (Scotland) Act 1993 (“The 1993 Act”) as amended by the Crofting Reform (Scotland) Acts 2007 and 2010 (respectively “the 2007 Act” and “the 2010 Act”):

20 Resumption of croft or part of croft by landlord

(1) The Land Court may, on the application of the landlord and on being satisfied that he desires to resume the croft, or part thereof, for some reasonable purpose having relation to the good of the croft or of the estate or to the public interest or the interests of the crofting community in the locality of the croft, authorise the resumption thereof by the landlord upon such terms and conditions as it may think fit, and may require the crofter to surrender his croft, in whole or in part, to the landlord accordingly, upon the landlord making adequate compensation to the crofter either by letting to him other land of equivalent value in the neighbourhood or by compensation in money or by way of an adjustment of rent or in such other manner as the Land Court may determine.

(1AA) In determining whether it is satisfied as mentioned in subsection (1) above (and, in particular, whether the reasonable purpose mentioned there relates to the public interest) the Land Court –

(a) may take into account the effect that purpose (whether alone or in conjunction with other considerations) would have on the matters mentioned in subsection (1AC) below; …

and must authorise , or refuse to authorise, the resumption of the croft by the landlord accordingly.

(1AC) The matters mentioned in subsection (1AA)(a) above are –

(a) the sustainability of –

(i) crofting in the locality of the croft or such other area in which crofting is carried on as appears to the Land Court to be relevant;

(ii) the crofting community in that locality or the communities in such an area;

(iii) the landscape of that locality or such an area;

(iv) the environment of that locality or such an area;

(b) the social and cultural benefits associated with crofting.

(3) For the purposes of subsection (1) above “reasonable purpose” shall include‑

(a) the using, letting or disposing of the land proposed to be resumed for –

(i) the building of dwellings,

(ii) small allotments,

(iii) harbours, piers, boat shelters or other like buildings,

(iv) churches or other places of religious worship,

(v) schools,

(vi) halls or community centres,

(vii) planting,

(viii) roads practicable for vehicular traffic from the croft or township to the public road or to the seashore,

(viiia) the generation of energy; or

(ix) any other purpose likely to provide employment for crofters and others in the locality.

The hearing

[4] At the start of the hearing Mrs Leslie accepted that although the respondent was not present the court required to be satisfied that resumption was appropriate and the hearing should continue, to be followed by a site visit. The court then heard evidence from two witnesses for the applicants: Ewen MacPherson, care of the Scottish Government Agriculture, Food and Rural Communities Directorate, Estates Office, Budhmor, Portree, Isle of Skye and Hugh MacLeod Ross, care of Staffin Community Trust, Church of Scotland Annexe, Staffin, Isle of Skye. We found both of the witnesses credible and reliable.

The witnesses

[5] Mr MacPherson confirmed that he is a Senior Agricultural Officer within the Rural Payments and Inspections Division of the Scottish Government and a member of the Royal Institute of Chartered Surveyors. Since 1997 his duties have included estate factoring in Caithness, Argyll and now Skye, where he has been the factor of Kilmuir Estate since 2015.

[6] Following an initial approach from Hugh Ross of the Staffin Community Trust, Mr MacPherson had been kept informed about discussions with the relevant crofters about the proposed resumption of land from Stenscholl common grazing for a small development of affordable housing and commercial units. He was aware that one crofter, who held a half share in the common grazings, was not willing to sign a written agreement consenting to the proposal, but it was understood that he would not formally object. He felt that this was not sufficient to stop the development as the other 14 shareholders, holding 13⅟₂ shares, had all signed a proforma supporting it. It had been explained to Mr MacPherson that an access corridor at least 4 metres wide between the development and croft 28 Stenscholl (the objector’s croft) had been incorporated into the plan. Action therefore continued: a valuation of the land was obtained; a formal minute of consent was signed by all the crofters except Mr Iain MacLeod; planning permission was granted; the sale contract entered, and the application for resumption was made. Only following that application did he receive any objection to the proposed development from Mr MacLeod, although on 8 May 2017 Mr MacLeod had visited Mr MacPherson’s office to object to the inclusion of a roadside footpath on 28 Stenscholl linking the development to the school. Mr MacPherson had no recollection of Mr MacLeod objecting to the location of the proposed development at that meeting.

[7] Mr MacPherson went on to say that Mr MacLeod currently has three ways to access the common grazings from his croft and he will still have three such accesses if the development goes ahead. An offer to drain the ground and to provide a surface of hardstanding material had been made in response to Mr MacLeod’s concern that the proposed access corridor is too narrow and will get churned up because it is on boggy ground. The proposed corridor will be at least 4 metres wide which should be ample for Mr MacLeod’s herd of no more than 15 beasts. The Trust and the Estate have made various offers to address the concerns raised by Mr MacLeod but he was not interested.

[8] When asked, Mr MacPherson agreed that the common grazings are over 312 hectares in extent and are in good condition. They provide open rough grazing of which the first “three to four acres” or more, which includes the area proposed for development, are on slightly firmer ground than the rest which is deep peat. Mr MacLeod and one, possibly two other crofters have stock on the common grazings, and all crofters have equal rights to use the whole area. Mr MacLeod has no more right to the proposed development site than any other crofter.

[9] With regard to Mr MacLeod’s statement that his cattle are “hefted” to the area which the landlords propose to develop, Mr MacPherson stated that he was previously aware of the concept of “hefting” in relation to sheep. He understood that Mr MacLeod’s cattle are likely to stay near to his croft, on the north side, as well as adjacent to the disputed area, but they can range free and are more likely to come back in the winter when they are hungry. Cattle will find their own space or “family area” so conflict with someone else’s cattle is unlikely and removing a small area of the grazings will have absolutely negligible effect as the cattle will go in and round to the area where they normally go.

[10] We allowed a new plan, production 29, to be lodged in process which Mr MacPherson confirmed was a plan of the proposed development annotated with the landlord’s latest proposals in response to the objections from Mr MacLeod. He explained that Mr MacLeod and his cattle can currently access the common grazings through a gate at the southeast corner of the field adjacent to the proposed access track; direct from his croft on the other side of the road, or from his croft above the proposed development site. He believes that in summer the cattle can go direct from the croft to the area above the proposed development site, which Mr MacLeod said at a site meeting last May is where they graze. In winter Mr MacPherson understands that Mr MacLeod takes the cattle along the road from his agricultural buildings on the inbye land and through the gate by the existing cattle grid. This grid is about 12-15 metres in from the edge of the common grazings, possibly because the land nearer the boundary is wetter.

[11] The witness explained that originally the access corridor had been intended to be just that but when Mr MacLeod raised the issue of it being churned up he had felt that they should try to reach agreement, so he had suggested to Mr Ross that they should offer a hardcore standing as the proposed track is wetter at the start and could be trampled. Also, the original plan was for the development to be open to the road, with a fence on the other side of the road, and he had suggested they provide an access track on the common grazings side of the road, with drains, as drains can be culverted quite easily. At the site meeting Mr MacLeod did not seem willing to negotiate and made no counter proposals; he just wanted the case to go to the Land Court.

[12] Mr MacPherson went on to say that the new proposal is to move the fence from across the road to the front of the development to prevent cattle from getting into the development. This would mean putting in a cattle grid with a side gate and access could then be above the proposed development site, or through the side gate and along the road. This would mirror the arrangement at the school and would be do-able although it means two cattle grids at the bellmouths into the development which has a cost implication. There would also be a new hardstanding area and culvert as marked in pink on the plan, production 29. Cattle already cross at about this point although it is not currently culverted.

[13] Removing the proposed development site from the common grazings would mean the crofters losing a small area. Although it includes an area used for feeding there is another such area on the other side of the road and cattle will just go round the proposed development site. The site is part of an area with slightly better soil (not deep peat) where the respondent grazes his cattle but there would still be a considerable area, of up to 5 or 6 acres, remaining. The better access at present is the one on the site but the difference is not major. Working access would not be restricted although it would change. The site is in an area of outstanding natural beauty [Trotternish National Scenic Area] and he understood that Scottish Natural Heritage had been going to object to the development although this didn’t happen in the end. Mr MacPherson was of the opinion that moving the proposed development site to a standalone position would not get planning permission although he could not prejudge what the planners would decide.

[14] On being questioned by us, Mr MacPherson stated that he didn’t know what vehicular access is taken by Mr MacLeod but the proposed access corridor would be a potential option in future, especially if hardcored. The Court could decide how much of the access corridor needed hardcore, which would be to metalled track standard, but there would be a cost implication for the developer. A new culvert would be of negligible benefit from a SEPA perspective as there is not much flow there. The existing culvert has not been cleaned for years and cleaning is unlikely to make much difference. He agreed that creating a gate at both ends of the proposed access corridor would be an appropriate alternative for the maintenance of the access corridor ground in good condition.

[15] Mr Hugh Ross, a development officer with the Staffin Community Trust, then gave evidence. He acknowledged that he is a shareholder in the common grazings and explained that this had been declared to all interested parties and at every meeting. He confirmed that the Trust has offered to buy the proposed development area for affordable housing, a health centre and small commercial units. They have invited tenders for the work, to be received by 30 January 2020. They have also been applying for funding which includes significant European funding which will not be available after October 2020, and funding from the Scottish Land Fund and the Rural Housing Fund which has to be used by 2021.

[16] Mr Ross attended the site meeting held in May 2019 and had corresponded with Mr MacLeod beforehand about access to the common grazings and the potential impact on his business. Mr MacLeod had previously been encouraged to put forward his views at a township meeting with the architect but preferred to wait until any planning application was made. Hardcore and drainage was offered at the 2019 site meeting but Mr MacLeod preferred to “take his chances with the Land Court”. Mr Ross confirmed that the proposed access corridor would be at least 4 metres wide; from memory he thought it was to be 4.5 metres wide, which would be wide enough for a tractor. He felt that the Trust had gone out of its way to provide an additional access point to the common grazings and could not accept the argument that croft 28 would be adversely affected by access issues.

[17] We asked about the proposals regarding additional cattle grids. The Trust is taking professional advice about the costs, as they would prefer to limit the number of cattle grids because of cost but they recognise that this is a working township and would want to meet reasonable demands. They don’t want to restrict access but would prefer not to have both to install cattle grids and to hardcore the proposed access corridor, for cost reasons. The cattle grids would be preferable on cost grounds but they are in the Court’s hands.

[18] Mr Ross believes that advice is that the development could be moved along the road but he questioned how big the gap would have to be and pointed out that SNH might choose to object to any new plan. Moving the site would incur additional costs, not just for revised planning permission but in lost funding, which would be likely to make the project unviable.

Submissions

[19] Mrs Leslie on behalf of the applicants reminded us that the application is for resumption of a very small area of the common grazings, being well below 1% of the total area, and claimed it is clearly within the public interest for the development to go ahead. Mr MacLeod has only one half share and all the other shareholders are in favour of the development. Even the respondent does not appear to dispute the need for new housing but he does not favour the chosen location. He has expressed concerns about restrictions to his access to the common grazings but the court has heard clear evidence that there is no intention to restrict his access. The landlords and the Staffin Community Trust have made a number of proposals for accommodation works which he has refused to consider.

[20] Mrs Leslie went on to point out that funding for the project is time-limited and further delay could “scupper” the development which would not be in the interests of the community. Moving the proposed development site would at best cause delay, add costs and risk a failure to get planning permission given the concerns already raised by SNH. Against that, we should take into account the fact that the veracity of Mr MacLeod’s concerns has not been tested. For example, he has lodged a number of photos but we don’t know what they are, when they were taken or who took them, and we have not been given the opportunity to enquire into such matters as he has not come to court.

[21] It is the applicants’ position that although Mr MacLeod may need to make small changes to his current practices these will not be significant enough to threaten the viability of his crofting business. He currently has three accesses to the common grazings and he will retain three afterwards, with the accommodation works necessary to safeguard these being done. In all the circumstances therefore the respondent’s position appears to have been over-stated and he has not come to court to explain why the proposals do not meet his needs. The applicants move that the resumption application be granted, subject to conditions regarding access but having due regard to concerns about the cost of having to implement multiple solutions.

[22] Mrs Leslie then went on to make submissions on expenses. She acknowledged that it is our normal practice in resumption applications to award expenses to the crofters whether or not they are successful, but noted that in this case the crofter has caused significant delay and only said at the last minute that he would not attend the hearing. The applicants had asked for a decision to be made on the basis of written submissions last July, which if granted could have enabled the expense of a hearing to be avoided. Rule 29 of the Rules of the Scottish Land Court 2014 gives us the option of making an order in favour of the applicant which may include an award of expenses, but this would possibly be a step too far in the circumstances, so the applicants’ motion was for no expenses to be due to or by any party.

The Inspection

[23] The court inspected the proposed development site on Tuesday 10 December 2019 after the hearing in Portree Sheriff Court earlier that day. We were met at the existing cattle grid by Ewen MacPherson, who had given evidence in court earlier. He pointed out the various areas we had been told about in the evidence given earlier in the day.

[24] He identified a post in the ground near the public road as marking the northeast corner of the proposed development site, which he had measured as 4.5 metres from the boundary fence. The sites of the new cattle grids were identified and we took the opportunity to walk over some of the proposed development site to gain an impression of the area to be removed from the common grazings. We walked along the public road to a crossing point which showed signs of being used recently as an access to the grazings, as the culvert seemed to be covered and cattle had obviously used this area although there were none present that day. We were told that we were not too far away from the proposed new hardstanding and covered culvert shown on the plan, production 30, by the public road to the south of the proposed development site. We could identify this as good access to the grazings.

[25] The land which would form the proposed access corridor between the site and croft 28 Stenscholl was wet, but it was a very wet day and the river was in spate, and we could see the advantage of the crofters having this access route available. We would however wish it to remain an access route and not an area for livestock to congregate, which could be achieved by having a gate at either end of this corridor to keep it for access only and to prevent it from becoming unusable due to overuse.

[26] We were able to identify Mr MacLeod’s steading at the turn off from the A855 to the road to the grazings. We could see that the school was fenced and had cattle grids protecting it from livestock and we could see why the new proposal for the development was taking a similar approach. With the new proposals in place we could not see how it would be much of an inconvenience for Mr MacLeod to adjust to the development; it would not require such changes to his crofting practice so as to “affect the sustainability of his business”, as he suggests.

The decision

[27] Mr MacLeod did not attend the hearing on 10 December after being given the opportunity last summer to confirm his agreement to a proposal that an oral hearing was not required, so under our rules, as pointed out by Mrs Leslie in relation to expenses, one option open to us would be to repel any objection pled by him and grant the application. However, this application is for a resumption of land from the common grazings and therefore affects more than one crofter. In terms of section 20(1) of the 1993 Act we are to satisfy ourselves that any resumption is for a reasonable purpose, even in applications where there are no objections, and we are also obliged to set such terms and conditions for the resumption as we think fit. Our role in such applications is therefore more inquisitorial than may sometimes be the case in legal matters and we considered it appropriate to hear evidence from the applicant regarding both the reasonable purpose and any terms and conditions to be set.

[28] In her closing submissions Mrs Leslie highlighted that Mr MacLeod appears to accept that the proposed development, and therefore the resumption required to enable it to go ahead, is for the good of the community. In his written statement dated 4 December 2019 he concludes “I do understand the need for new housing in the Staffin area and from the beginning of the process have stated that I am not against the building of new houses, just to the current proposed positioning.” The purpose of the development, which is to provide affordable housing and small commercial units, clearly falls within the definition of a reasonable purpose (section 20 (3) refers). By providing homes and services to the local community, including crofters, it would also appear likely to have a positive impact on the matters described in subsection 1AC, but the court has to consider whether these benefits are outweighed by any adverse impacts on these matters.

[29] In this case the application is for the resumption of land from the common grazings and only one of the 14 crofters affected has made any objection. Mr MacLeod’s croft, 28 Stenscholl, is closest to the chosen site and is likely to be affected more than others and most of his objections concern issues regarding access for his cattle to the common grazings. The landlords have offered accommodation works which will be available to all but seem likely to be of most benefit to Mr MacLeod. The latest proposals from the landlords now include a side gate and measures to prevent cattle accessing the new properties as a direct response to the concerns raised by him, and we consider these accommodation works to be appropriate and proportionate. We have concluded that the accommodation works shown on production 29, together with an additional gate at the end of the proposed access corridor furthest from the public road, all as now shown on production 30, will be sufficient to mitigate the adverse consequences foretold by Mr MacLeod and our order therefore requires these works as conditions for resumption.

[30] Mr MacLeod also suggested that his business will be adversely affected because his cattle are “hefted to the area concerned in the proposed development”. He goes on to say that providing an area of hardstanding at either access point would not alleviate his concerns because of the nature of the ground in those areas, but we noted during our inspection that there is such an area near the current access to the common grazings by the public road and we therefore consider a similar area to the south of the proposed development, as shown on productions 29 and 30, is an appropriate replacement. We note that the proposed development site is a very small part of the common grazings and even if Mr MacLeod’s cattle are accustomed to staying in this corner they will still have access to the greater part of the area they currently use.

[31] For completeness we should note that we have considered the potential impact on the landscape and the environment, but we consider that these aspects of the proposed development have already been dealt with in the process of applying for planning permission. There are no additional factors specific to crofting which would require us to conclude that resumption, having been found to be for a reasonable purpose and for the good of the public and the crofting community, should not be granted.

[32] We have considered the submissions from the applicant on expenses and, in the particular circumstances of a hearing which proceeded under rule 29, only one of the fourteen crofter respondents having lodged any answers and therefore being expected to appear before us, we agree that the fairest way to deal with expenses is to find no expenses due to or by any party.