Crofting Commission Policy Plan - Fit for purpose?

Crofting is a subject that fascinates me and I'll be coming back to regularly, I expect, but the aspect that's taken my interest today is the Crofting Commission's recently approved statutory Policy Plan (copy downloadable from here.)

Mandated by the recent Crofting Reform (Scotland) Act 2010 (s.2(2) inserting new s.2C into the Crofting Act 1993), the purpose of the plan is to explain the CC's policy on how they will, in practice, exercise their various regulatory powers. Such plans are, in principle, a very good idea as bridging the gap between the bald statutory powers ("the Commission shall have power to grant consent ..." etc.) and how Joe Public can actually expect the law to be applied in their particular case. So let's have a look and see whether the plan lives up to expectation in that most controversial aspect of crofting of all - decrofting (removing land from the crofting law regime so that it can be developed for non-crofting use).

By way of (very simplified) background, there are four types of decrofting only two of which are of practical significance:

(1) "statutory house site" decrofting: you have the absolute right to decroft one already existing house on a croft, no questions asked. The only scope for CC discretion is the size of garden that will be allowed with the house. (In fact, most croft houses have already been decrofted by now);

(2) "reasonable purpose" decrofting: something for which you've got planning permission and the CC is persuaded there's no compelling reason to gainsay the planners and keep the site in crofting. The typical example is a housing development targetted at people not involved in crofting or agriculture.

In the mid 2000s, there was concern too many "reasonable purpose" decroftings were being granted with too much land being lost to crofting as a consequence. This was all tied up with issues about affordability of housing in rural areas, second homes etc. and indeed the whole property bubble that burst in 2008. It's called "speculation" (including in the CC plan) in a sort of vaguely pejorative way but without being anywhere legally defined. Anyway, long/short was the 2010 Crofting Act (s.43) added to the CC's powers to refuse reasonable purpose decroftings by reference to new politically correct sounding - but legally rather elusive - criteria such as the "sustainability" of the local environment and landscape (can a landscape be "sustainable"?) and the "social and cultural benefits of crofting". Having only come into force on 1 October 2011, none of this new stuff has been tested in the Land Court yet (as the pre-2010 law had) so this is precisely the sort of thing the CC's plan should be there for to explain what it means in practice.

This was thrown into sharp relief by a recent case drawn to my attention by Inkster's crofting law blog. A Mr and Mrs MacGillivray obtained planning permission for ten houses on a site they owned just north of Ballachulish Bridge. As the site was croft land, the MacGillivrays' next move was to apply to the Crofting Commission for a "reasonable purpose" decrofting direction. In fact, the CC threw out the application on a technicality. That doesn't preclude them from submitting another one but, crucially, any new application will have to be considered under the post-2010 Act decrofting provisions with all their new talk of sustainability of the environment and landscape and social and cultural benefits etc. Now, we would expect the CC's policy plan to give us a steer how in practice all that will play out with the MacGillivrays' planning permission at Ballachulish so let's see if it does.

The MacGillivrays' site as seen on Google Streetview

The relevant paragraphs of the plan for reasonable purpose decroftings are 56-59 (page 15). And the core of that is paragraph 58:-

58          Policy:  The Commission aims to protect land from being lost to crofting.  When considering applications to decroft land for a reasonable purpose, the Commission will normally refuse applications where it is established that the  general interests of the crofting community would be adversely affected.  In applying this policy, the Commission will take into account the demand (for a croft tenancy) for the land subject to the decrofting application.  Unless there is evidence to the contrary the Commission takes the view that there will generally be a demand for an available croft or part croft.

Apart from appearing in the last sentence to erect a presumption of demand (meaning the applicant for decrofting has to prove there's no demand for the land from neighbouring crofters, hence no reason to retain it in crofting) which I'm not sure is legally justified (comments on that from more experienced crofting lawyers, please), that's just a statement of the law as it existed before the 2010 Act changes.

But read on to paragraphs 60-62. Headed "Croft House Site and Garden Grounds", you'd expect these to be covering statutory house site (SHS) decrofting (unchanged by the 2010 Act: absolute right to decroft one house on a croft with no questions asked) with a sentence or two about the CC's policy on the extent of garden ground that will be allowed (as I recall, the rule of thumb used to be 0.1 hectare). But they're not. They're an awkward muddle of SHS decrofting without anything about garden size (para. 61) mixed in with a description of the commonly occurring syndrome of where the original croft house has been decrofted (SHS) and sold off while the croft land passes into new ownership (or tenancy) to someone who now doesn't have a house on it. For the new owner/tenant to get a new house-site decrofted (important because it's difficult to get mortgage finance otherwise), that will have to be a reasonable purpose decrofting meaning that the CC has the discretion to refuse. Para. 62 looks as if it aims to set out the CC's policy on these cases but then it seems to drift off into talking about larger housing developments, referring as it does to housing for "community purposes". I suspect the plan was written (or revised) by someone who doesn't properly understand decrofting but finally, in the last sentence, we seem get to the nub of the CC's attitude to reasonable purpose decrofting:-

"In all cases, the Commission will consider whether decrofting is an attempt to create building plots, or other speculative development which may lead to an application being rejected if it is considered to be potentially detrimental to crofting, the crofting community, the landscape or the environment, or the social and cultural benefits associated with crofting."

There's that s word: "speculative". It's not defined in the plan but according to my dictionary it's "characterised by speculation, esp. financial speculation" and the latter word is "investment involving high risk but also the possibility of high profits". My dictionary also has for speculate "to buy or sell securities, property, etc., in the hope of deriving capital gains" which tones down the risk element so just about every non-social housing development is "speculative". But note that the plan does not say it's the CC's policy to reject a decrofting application if it's speculative. (Nor does the 2010 Act despite what it says in para. 6 of the plan.) What the plan says is that, if the development is speculative, it may refuse decrofting if it would be "potentially detrimental to crofting, the crofting community, the landscape or the environment, or the social and cultural benefits associated with crofting". Which seems to imply that if a development is not "speculative", then the CC will not take account of the new criteria introduced by the 2010 Act and the old law will continue to apply to it.

The MacGillivrays' site on the OS Six Inch map of 1903

Maybe it's unfair to apply the scalpel of statutory interpretation to a policy plan. The point here is that, if we allow that the MacGillivrays' plans at Ballachulish are "speculative", does the plan give any guidance as to how the Crofters Commission will act in response to considerations such as the environment and landscape? Will it, for example, call for some sort of impact assessment from Scottish Natural Heritage, for example? But the plan contains no such guidance making it for all practical purposes absolutely useless as simply repeating the words of the statute it is supposed to explicate!

I shall be very interested to see how the CC responds to the MacGillivrays' next decrofting application. And even more interested to see how the Land Court responds to the post-2010 decrofting law and the CC's policy plan (which the LC "may" take into account, but doesn't have to) if or, almost inevitably, when the MacGillivrays' or another similar case gets there on appeal.