Decision of the Scottish Land Court

Rosedrena Mary Innes (Applicant) v The Crofting Commission (Respondents)

Case reference SLC 2/17
before
Lord Minginish, Chairman and John Smith
9 October 2017

[1] This is an application for a finding that land in the ownership of the applicant and known as Lower Tarrel, Tarbat, Ross & Cromarty is not subject to crofting tenure in terms of the Crofting (Scotland) Act 1993 (“the 1993 Act”) as amended. There is no contradictor as such but the application has been intimated to the Crofting Commission since the suggestion that the land is a croft derives from an entry in their Register of Crofts. The Commission have lodged answers and productions setting out the history of matters so far as their records disclose and their understanding of the relevant law but remaining neutral as to whether the subjects are a croft. The parties are content to have the matter decided by the Court without a hearing.

[2] The subjects, which extend to some 60 acres, appear to have been in the ownership of the applicant’s husband’s family (before passing to her) and (notwithstanding subsequent references to an “assessed rent”) untenanted since 1919. Production 5 comprises an exchange of correspondence between the Crofters Commission, as the present respondents then were, and the occupier of the subjects in the second half of the 1950s, starting when the Commission were compiling the Register of Crofts required by sec 15 of the Crofters (Scotland) Act 1955 (“the 1955 Act”). At that time the subjects were occupied by a Miss Christina Ross, who completed a return for the Commission which showed her to be both proprietor and tenant and stated a rent of £39 10/-. A covering letter dated 11 May 1956 explained something of the history of the holding: how it had once been part of the Cadboll Estate; how, over 100 years previously, it had come to be occupied by her grandfather free of rent; how he and members of his family had brought the land into a state of cultivation and how her father had bought the land during the First World War. Despite this history of rent-free occupancy and subsequent ownership that letter said “the rent is now assessed at £39 10/-.”

[3] Later that year Miss Ross had an application for Cropping Assistance to the Highland Agricultural Executive Committee turned down because the subjects were “termed a croft” (there is a suggestion in the papers that Cropping Assistance was for small farmers rather than crofters). She reported this to the Commission who responded, on 20 December 1956, apologising for having wrongly informed said Committee that the subjects were a croft, whereas their owner-occupied status meant that they should not be entered on the Register of Crofts. Miss Ross, perhaps misunderstanding the basis on which said Committee had refused her Cropping Grant, responded on 28 December 1956 asking the Commission to reconsider their decision and enter the subjects on the new Register as a croft. That letter explained that the subjects were owned jointly by her and a married sister who was living away. On 22 January 1957 the Commission wrote asking her to give particulars of any tenancy between her and her sister, as joint owners, and herself, as tenant. There is no evidence of this having been responded to and the next production is a letter from Miss Ross dated 23 January 1959 again asking the Commission to enter the subjects as a croft. That letter refers to her status as owner-occupier, to the fact that the subjects were jointly owned with her sister and to an “Assessed Rental” of £39 10/-. It met with the response, dated 24 February 1959, that “In terms of the Crofters (Scotland) Act, 1955, only a tenant of a croft can be a crofter and as you and your sister are joint owners of the above holding your name cannot be entered in the Register as a crofter in respect of it.”

[4] Notwithstanding this refusal to enter Miss Ross as a crofter, however, the subjects came to be entered on the Register of Crofts. How and why this happened is not known but production 13a is a copy of an undated letter from the Commission Secretary, Mr D J MacCuish, enclosing formal notification of registration for Miss Ross’s approval. She acknowledged this with thanks by letter dated 29 July 1960 (production 14), her request having finally been granted. Accordingly the subjects have been on the Register of Crofts since at least that date. The entry made at the time, and since transferred to a computerised database, shows the subjects to be “Presently occupied by proprietor” but nevertheless states a rent of £39 10/-.

[5] The Commission’s resistance to entering the subjects on the Register of Crofts was based on their understanding that only tenanted holdings were crofts. This is entirely in accordance with the scheme of the Small Landholders (Scotland) Acts and the 1955 Act itself. The discussion of, and decision on, that matter in the much later case of Highland Primary Care NHS Trust v Thomson 1999 SLCR 32, referred to in the Commission’s submissions in the present case, supports that view. Accepting that as being the case, the position is that the subjects were entered on the Register erroneously; they were not a croft.

[6] On earlier consideration of this matter we drew parties’ attention to sec 3(1)(f) of the 1993 Act, which, under the heading “Meaning of croft and crofter”, says;

“Subject to subsection (2) below and to section 3ZA(2)(a), in this Act “croft” means–

(f) as from the relevant commencement date, every holding –

(i) entered in the Register of Crofts on that date which has been so entered for a continuous period of at least twenty years ending with that date; and

(ii) in respect of which no application or reference seeking a declaration or order that the holding is not a croft is on that date pending before any court.”

“[T]he relevant commencement date” was 25 June 2007, the date on which sec 21 of the Crofting Reform etc. Act 2007 came into force; subsec (1A) of the 1993 Act and The Crofting Reform etc. Act 2007 (Commencement No. 1) Order 2007.

[7] The further submissions which parties subsequently lodged did not assist our consideration of matters greatly. The applicant’s position is that it would be manifestly unjust for there to be no ability to go beyond the entry in the Register when it is known that the entry is wrong. The Commission state that they have no view as to the legal effect of sec 3(1)(f); their submission is largely confined to answering a number of comments made by the applicant to do with the Commission’s records and they finish by saying “It is submitted that there is insufficient information to indicate that … the Register of Crofts, is inaccurate”.

[8] In fairness to the drafters of these submissions, there is probably not a lot more to be said. The legislation gives us no power to correct or reduce an entry in the Register of Crofts and sec 3(1)(f) is clear in its terms and unqualified (subsec (2) of sec 3 and sec 3ZA(2)(a) have no bearing on the matter). Therefore it seems to us that the subjects are a croft within the meaning of the 1993 Act and the application must, therefore, be refused.

[9] That does not necessarily leave the applicant without a remedy. She could apply to the Commission for a whole-croft decrofting direction and ask the Commission to exercise their discretion in terms of sec 24(3) so as to rectify matters.