Decision of the Scottish Land Court

Robert & Louise Meeres (Appellants) v The Crofting Commission (Respondents)

Case reference SLC 101/17
before
Lord Minginish, Chairman
2 October 2017

[1] SLC/101, 102 and 103/17 are three appeals against the refusal by the Crofting Commission of whole-croft decrofting directions in respect of crofts of which the appellants, Mr & Mrs Meeres, are owner-occupiers. They have come to me for consideration, in terms of Rule 59 of the Rules of the Scottish Land Court 2014, as to whether they “demonstrate a basis upon which the order or determination in question might realistically be expected to be changed or set aside”. That consideration involves assessing whether the applications disclose a reasonable purpose under sec 25(1)(a) of the Crofters (Scotland) Act 1993 (“the 1993 Act”) or a basis upon which the Commission could have exercised their discretion in favour of the appellants in terms of sec 24(3).

[2] With regard to the first of these, the applications are unusual in that they do not specify a reasonable purpose of the kind listed in sec 20(3)(a) of the 1993 Act but, rather, proceed on the basis that decrofting is in itself a reasonable purpose in that it produces, it is argued, favourable economic and social outcomes. A flavour of the appellants’ position is given by the following quotations from the grounds of appeal (which are identical in all three cases):

“As with our croft house which has been decrofted, we want the land to be decrofted also and to be allowed the choice to sell in open market conditions which don’t have restrictions of crofting legislation.”

“I feel that in the 21st century an individual should have the right to be able to make decisions regarding their crofts freely and within regulations that exist for farms and smallholdings outwith the extra crofting legislation.”

“Please I ask you to consider the future of the Highlands and its population and give us the right to be under crofting tenure or not. Allow these decroftings and give the people of these crofting communities the credit and the freedom of choice to make the right decisions for their own business and their community.”

[3] In my view what is meant by “reasonable purpose” in secs 20(3) and 25(1)(a) of the 1993 Act is a particular project or scheme for which the land in question is to be used. The list contained in sec 20(3) is a list of examples of such projects. The simple wish to escape crofting tenure is not such a scheme or project. Accordingly reasonable purpose has not been shown and sec 25(1)(a) does not apply.

[4] What of the Commission’s discretion under sec 24(3)? It has already been held by this court that the wish to be free of crofting in and of itself is not an adequate basis for the exercise of that discretion so as to grant decrofting, at all events where there is a crofting community. That was what the Court held in the case of Steven v Crofters Commission 1985 SLCR 30, where the applicant sought whole-croft decrofting (quoting from the rubric of the report) “so that she could be free, without interference from the Crofters Commission, to bequeath her croft to anyone of her choosing”. The Court said (at page 39) that the submissions on behalf of the appellant were “really tantamount to a general attack upon the legislation itself which, until altered by Parliament, this Court is bound to apply”. Although that case was decided under sec 16 of the Crofters (Scotland) Act 1955 as amended by sec 13 the Crofting Reform (Scotland) Act 1976 and the submissions being commented on by the Court in the passage quoted related to the effect of the 1976 Act, the decision is, nevertheless, in point in the present case.

[5] All of this appears to be well-known to the appellants, which is unsurprising given that Mr Meeres has been the Commission’s Assessor for Rogart, Golspie and Dornoch for 10 years (although he seems to have become distinctly unenamoured of them over that time, as appears below). Thus he acknowledges that his applications are unusual, indeed potentially ground-breaking:

“I realise my applications may set a precedent but only if that is what the crofting community want. If it’s not then nothing will change and although my crofts are quite sizeable, considering the landmass which is under the crofting umbrella, it is a very small parcel of land. If more crofters decided that decrofting their crofts is the way forward then I see no reason that this direction cannot be looked upon as a positive step.”

[6] More than that, for all his criticisms of the Commission (e.g. “[they] appear to know the price of everything but the value of nothing”), he appears to acknowledge that they do not have the power to grant what he and his wife are asking for. Thus he says “Within the body of the Crofting (Scotland) Act there is no provision allowing freedom of choice to move into or out of crofting tenure in order that a British citizen/taxpayer may fully protect and enhance his/her financial and social interest and the community interest in general”.

[7] Since that is, in my view, a correct statement of the law and since that freedom of choice is all these applications are asking for it follows that I have to refuse the appeals in terms of Rule 60 of our Rules.