Practice Note (No. 4)
Resumption Applications — Answers by a Respondent
In an Application by a landlord for an Order authorising him to resume a part of a croft or common grazing in terms of section 20 of the Crofters (Scotland) Act 1993, the Court will — unless all potential Respondents have signed a Minute of Consent — issue an Order specifying the period within which any persons claiming an interest must lodge any Answers to the Application.
This Practice Note is addressed to those who are named as Respondents in such Applications and who will have to consider whether to put in Answers. The Practice Note is issued for general guidance, not limited to any specific case. It is not intended positively to encourage claims but it is intended to make clear to crofters their responsibility to take positive steps on their own behalf. The primary task of any Court is to act fairly to decide disputed matters on the basis of the evidence put before it. Crofters should not assume that the Land Court will automatically protect them if they do not take any action to protect their own interests.
It is not compulsory to lodge Answers. Any responses sent in to the Court should make clear whether they are intended to be formal Answers to the Application. However, they can take the form of a letter (preferably typed) or, of course, be in a more formal style — possibly prepared by a solicitor.
The following points should be considered:
In terms of section 20 of the 1993 Act the Land Court may authorise resumption “for some reasonable purpose having relation to the good of the croft or of the estate or to the public interest”. You should decide whether you think that the purpose for which resumption is sought is a reasonable one. It may be the case that although you do not think the purpose is reasonable you consider that the resumption will not prejudice you in any way. Even if no answers are sent in, the Court will still act in the public interest by looking closely at the whole circumstances to be satisfied that the landlords have shown a reasonable purpose for taking the land out of crofting. It is expected that landlords will set out their purpose clearly in the Application with the precise area of land to be resumed clearly identified and any conditions or undertakings proposed by them in exchange for resumption clearly set out.
The Court will consider whether to impose conditions even if no Answers are lodged. Landlord applicants are expected to make clear in the Application what conditions, if any, they invite the Court to impose. A normal condition is to oblige the landlord to erect a stockproof fence on the boundary of the area of ground being resumed. However, there may be cases where the benefit to the crofters from having the ground fenced would not justify the cost and the Court will not always impose a fencing condition. If you think there is some reason for a fencing condition which might not be obvious to the Court you should put that in your Answers. You should bear in mind that the Court may wish to deal with the matter on the basis of the written material presented to it and without visiting the site. If you think any other conditions should be imposed, tell the Court in your Answers. Any conditions proposed should be conditions which have to do with the site itself.
If in doubt it is as well to make sure that the Court knows your views.
In terms of section 20 the Court can also determine the amount of compensation due for the agricultural loss of the area of ground in question. If you wish to claim such compensation you should indicate so in your Answers but you should be aware that in the great majority of cases the amount of compensation for agricultural loss is so small as to be negligible, and often accepted as nil.
Share in development value
In addition to “compensation” for loss of ground, the Act also provides, by section 21, that you and any other crofters interested in the land to be resumed are entitled to claim a “share in the development value” of the land resumed. The amount to be shared is one-half of the difference between the open market value of the land (less any compensation paid under section 20) and the crofting value. The crofting value, like the agricultural loss, is usually so small that it can be ignored. This means that crofters can usually expect to share half of the development value. Of course, the development value may itself be small.
If you wish to claim a share of the development value, you should tell the Court in your Answers that you make a claim and state what you consider that value to be. If your value differs from that contained in the application, then arrangements may be made to hear evidence about the value. You will be invited to put your evidence to the Court along with any other evidence you found on. The Court will not attempt to guess at the value for itself. The Court requires to have evidence before it can make a finding.
If any crofter entitled to a share under section 21 makes a claim, the Court will assess the total amount and may order that it be divided amongst all the crofters who appear entitled to share — even if the other crofters have not all put in claims. You should, however, decide for yourself whether to make any claim. There may be circumstances where the Court will only make an award to a crofter who has actually made a claim. For example, a landlord may have put forward an alternative scheme which most crofters are prepared to accept instead of making a claim. Another example might be where the amount was so small that the Court would only order payment to those who had actually troubled to make a claim. Unless you tell it, the Court cannot be expected to know that you wish to claim a share or, for example, that you think the value differs from that suggested by the landlord. It is up to parties to a case to put fully to the Court evidence supporting any claims they wish to make. If no Answers are lodged the Court may decline to make any Order as to share in value. If a claim is made but the landlord’s evidence is not disputed, the Court will normally proceed on the figures put forward by the landlord. That will be so even where those figures clearly fall short of what it would have felt able to award had proper evidence of value been presented.
Sometimes a landlord may propose a scheme under which a share of the rent he is to receive for the resumed ground in future will be paid over each year to the sharing crofters. This is usually intended to be in substitution for the right to immediate payment of a share of market value under section 21. If there is no opposition the Court is likely to assume that the scheme is acceptable to all concerned. It would then make no order for a lump sum cash payment under section 21. It may be that the proposal is one which gives some benefit in kind, such as improved roads, instead of a share under section 21. Such proposals may well be sensible as a way of dealing with things and may provide good value in the long run. However, such schemes can give rise to problems — particularly if circumstances change. You should be aware that the Land Court does not have any statutory power to enforce alternative schemes. Its power is to deal with payment of compensation and share in value at the time the land is resumed. It is up to you to satisfy yourself that any alternative proposal is reasonable, practicable and in some way enforceable.
If you are in doubt about any details you may want to discuss things first of all with your landlord. He may well be able to clarify matters to your satisfaction. You can always go direct to a solicitor.
Of course, you may have already reached an agreement with the landlord about the application. The landlord may rely on that agreement as an answer to any claim you make to the Court. If you have made an agreement you should give careful attention to the nature and terms of that agreement before putting forward any claim. However, the question of whether any particular agreement does exclude a further claim would be a matter for the Court to decide. If in doubt it can be discussed with a solicitor.
Although Court staff will try to give appropriate advice on matters of pure procedure it is not their job to give advice on the detail of individual cases.