The Crofting Commission has announced its advice that owner-occupier crofters are unable to apply for decrofting directions, but an examination of the legislation points to the opposite result

On 26 February, the Crofting Commission announced that, based on legal advice sought and obtained by them, it did not appear competent for them, on the application of an owner-occupier crofter who is occupying their croft, to make a direction that the croft (or part of it) shall cease to be a croft.

Accordingly, they are no longer accepting any new applications to decroft from owner-occupier crofters until further notice. In the meantime, they will hold all current applications for decrofting from owner-occupier crofters in abeyance, as they believe that to issue a direction in such cases would entail them acting outwith their powers, as set out in the current legislation.

It would appear that the legal advice in question suggested that under a provision in the Crofters (Scotland) Act 1993, as amended by the Crofting Reform (Scotland) Act 2010, crofts occupied by owner-occupier crofters are deemed not to be vacant and therefore s  24(3), which deals with decrofting, cannot apply to occupied owner-occupied crofts, as that section applies “where a croft is vacant”.

I believe that a different interpretation can be put on this which should allow owner-occupier crofters to continue to apply to the Crofting Commission for decrofting directions without question.
First, it is assumed that the provision in the 1993 Act whereby it is considered that crofts occupied by owner-occupier crofters are deemed not to be vacant is s  23(10). That reads:

“For the purposes of this section and sections 24 and 25 of this Act, a croft shall be taken to be vacant notwithstanding that it is occupied, if it is occupied otherwise than by―

(a) the tenant of the croft;

(b) the owner-occupier crofter of the croft;

(c) the subtenant of a sublet to which section 27 applies; or

(d) the tenant of a let to which section 29A applies.”

I do not believe that this necessarily means that a croft occupied by an owner-occupier crofter, or any of the three tenants listed, can never be classed as vacant under provisions of the 1993 Act. This provision is really just stating that if someone who does not fall within the four categories listed is in occupation of the croft, that croft shall be treated as vacant notwithstanding the occupation in question.

Section 23(12A) is the provision that the Crofting Commission state was, as they understand it, intended “to amend subsection 24(3) in order to extend the existing decrofting provisions to owner-occupier crofters”. I believe that it does arguably achieve that purpose. It reads:

“Where the owner-occupier is an owner-occupier crofter, this section and section 24 have effect as if―

(a) the owner-occupier crofter were required under subsection (1) of this section, within one month of becoming such an owner-occupier crofter, to give notice to the Commission of that fact; and

(b) the reference to a landlord in subsection (2), and any reference to a landlord in section 24, included a reference to an owner-occupier crofter.”

I suggest that the reference back to subs (1) (quoted below), which relates to situations where a croft has become vacant, means that in effect an owner-occupier crofter is deemed to be occupying a vacant croft for the purposes of s  24 (which relates to decrofting in the case of vacancy).

Thus an application for decrofting by an owner-occupier crofter is competent and should be processed as such by the Crofting Commission.

It has been suggested to me that s  23(12A) “allows an owner-occupier crofter to be treated in the same way as a landlord; for instance, he would be the right person to make an application. But it does not resolve the necessity in s  24(3) for the croft to be vacant before an application to decroft can be made”.

I agree that this allows an owner-occupier crofter to be treated in the same way as a landlord, and that they would be the right person to make an application. However, I disagree that this subsection does not resolve the necessity in s  24(3) for the croft to be vacant before an application to decroft can be made. I refer to my comment above on the reference in s  23(12A) back to subs (1).
This is saying that s  23 (vacant crofts) and s  24 (decrofting in case of resumption or vacancy of croft) shall have effect as if the owner-occupier crofter were required under subs (1) of s  23 to give notice to the Commission.

The emphasised words highlight that this is not something the owner-occupier crofter actually has to do – i.e. they do not have to physically give notice to the Commission – but they are treated for the purposes of the legislation as if they were required to give this notice.

Section 23(1) of the Act reads: “Where―

(a) the landlord of a croft receives from the crofter a notice of renunciation of his tenancy or obtains from the Land Court an order for the removal of the crofter; or

(b) the landlord of the croft either gives to the executor of a deceased crofter, or receives from such an executor, notice terminating the tenancy of the croft in pursuance of section 16(3) of the 1964 Act; or

(c) for any other reason the croft has become vacant otherwise than by virtue of a declaration by the Commission in the exercise of any power conferred on them by this Act;

the landlord shall within one month from―

(i) the receipt of the notice of renunciation of the tenancy, or

(ii) the date on which the Land Court made the order, or

(iii) the date on which the landlord gave or received notice terminating the tenancy, or

(iv) the date on which the vacancy came to the landlord’s knowledge,

as the case may be, give notice thereof to the Commission.”

By, in effect, being deemed to have given notice under this subsection, the owner-occupier crofter is deemed to have given notice to the Commission that the croft is vacant. This then allows s  24(3) to apply, as the croft is for the purposes of that section vacant.

Indeed, the effect of s  23(12A) is that an owner-occupied croft is quite simply always “vacant” for the purposes of decrofting under s  24(3).

There is no doubt that the 1993 Act is badly drafted in places, resulting in it being open to different interpretations. However, I believe that the Land Court is more likely to take a pragmatic approach to that interpretation, based on the spirit of the Act and intention of the Scottish Parliament. The Crofting Commission should not be halting procedures based on one possible interpretation where the effect of so doing will be dramatic on the lives of those crofters and third parties affected by it. Until such time as the issue is formally and legitimately challenged in the Land Court, which may never happen, the Crofting Commission should withdraw the stance it has taken and continue to process applications for decrofting directions by owner-occupier crofters in the manner that they were doing prior to the 26 February announcement.

The Author
Brian Inkster, principal, Inksters Solicitors
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