It’s often assumed by town dwellers and visitors to Scotland that crofts are part of history. They are, but they’re also part of modern life.
Currently, there are over 20,000 crofts in Scotland, spread across the old ‘crofting counties’ of Argyll, Caithness, Inverness, Ross & Cromarty, Sutherland, Orkney and Shetland. All crofters have rights and duties under crofting law.
One aspect of crofting legislation very much relevant to modern-day life is that crofters who want to build new homes (or undertake various other developments) on their croft land have to have the land removed from crofting tenure. The main way to do this is by applying to the Crofting Commission for a decrofting direction.
With such applications, the Crofting Commission will weigh up different factors: for example, the public-interest benefits of building much-needed rural housing versus any detriment to the local crofting community or unmet local demand for croft land.
That’s the background. A recent court case concerns a decision by the Crofting Commission not to grant a decrofting direction, and the ability of a crofter to challenge the discretion the Commission has when making such decisions. The case (called MacGillivray vs The Crofting Commission) has rumbled on for over five years.
Without going into the legal minutiae, the impact of the Scottish Land Court’s recent ruling is that it is clear that the scope to challenge a Crofting Commission decrofting rejection is smaller than many crofters might assume or hope.
In practice, this decision emphasises that crofters who want to develop some of their croft should not regard decrofting as straightforward or a foregone conclusion. Nor should they assume they will have the grounds to challenge a Crofting Commission decision successfully.
In contrast, crofters should work on the basis that, when applying to decroft land, they have just one shot at goal.
That shot must therefore be a fine one – with the application meeting all the legal requirements, anticipating the factors the Crofting Commission may consider, and countering any possible objections.
In addition, for those seeking to buy property in the crofting counties – as a main home or a holiday property – the case underlines the need for specialist advice and care with any property built on a croft or former croft.