Pairc Crofters V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord President,Lord Eassie,Lord Malcolm |
| Neutral Citation | [2012] CSIH 96 |
| Court | Court of Session |
| Published date | 19 December 2012 |
| Year | 2012 |
| Date | 19 December 2012 |
| Docket Number | XA116/11 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Eassie Lord Malcolm | [2012] CSIH 96 XA116/11 XA117/11 OPINION OF THE LORD PRESIDENT in the Reference of Devolution Issues by the Sheriff of Grampian, Highlands & Islands at Stornoway in the cause of PAIRC CROFTERS LIMITED and PAIRC RENEWABLES LIMITED Appellants; against THE SCOTTISH MINISTERS Respondents: _______ |
For the respondents: Clancy QC, Poole: SGLD
19 December 2012
Introduction
[1] Pairc Crofters Limited (Pairc Crofters) is heritable proprietor of the Pairc Estate in South East Lewis. Pairc Crofters has leased the estate to Pairc Renewables Limited (Pairc Renewables). The Pairc Trust (the Trust) is a company limited by guarantee which represents the crofting community in Pairc. The Trust has applied to the Scottish Ministers under Part 3 of the Land Reform (Scotland) Act 2003 (the 2003 Act) to exercise a right to buy croft land on the Pairc Estate. It wishes to buy both the interest of Pairc Crofters as owner and the interest of Pairc Renewables as tenant. On 21 March 2011 the Scottish Ministers granted the application. Pairc Crofters and Pairc Renewables appealed by summary application to the sheriff at Stornoway. By interlocutors dated 23 June and 12 October 2011 the sheriff referred to this court two devolution issues arising from the appeal. The Scottish Ministers are convened to the reference as respondents. The Trust has not compeared.
The questions referred
[2] The following are the questions referred:
1 Is Part 3 of the Land Reform (Scotland) Act 2003 (the 2003 Act) incompatible with the appellant's Convention rights under Article 6(1) and/or Article 1 of Protocol 1 (A1P1) and outwith the legislative competence of the Scottish Parliament?
2 Are the Crofting Community Right to Buy (Ballot) (Scotland) Regulations 2004 (the 2004 Regulations) incompatible with the appellant's Convention rights under article 6(1) and/or A1P1 and outwith devolved competence?
The 2003 Act, Part 3
The right to buy
[3] The 2003 Act provides a right to buy croft land. Croft land, in general, consists of crofts as defined by section 3 of the Crofters (Scotland) Act 1993 and land over which croft tenants have grazings (2003 Act, s 68). The right to buy may also cover "eligible additional land" held by the croft landowner which is contiguous with the croft land (s 70).
[4] The right to buy also extends to a tenant's interest in a lease over croft land other than a croft tenancy or a tenancy of a dwellinghouse. The purchase of such an interest brings the lease to an end and is, in effect, a resumption of the land (s 69A). This is the provision under which the Trust seeks to purchase the interest of Pairc Renewables. For convenience, I shall refer to a heritable proprietor and to a tenant whose interest can be bought as a "landowner."
Crofting community body
[5] The right to buy can be exercised only by a crofting community body (s 73(1)). Such a body must be a company limited by guarantee. Its articles of association must provide inter alia that the company can exercise the right to buy under Part 3, that the majority of the members of the company must be members of the crofting community and that such members shall have control of the company (s 71(1)). The Scottish Ministers must confirm that the body's main purpose is consistent with furthering the achievement of sustainable development (s 74(4)).
[6] The Act makes elaborate provision for the membership of the crofting community body. In general, the membership consists of those who are resident on croft land or on land contiguous with it, or are tenants of croft land who live in the locality (s 71(5), (6)). The statutory definition can be varied if, in the opinion of the Scottish Ministers, it is inappropriate (s 71(5)(b)).
The application and the representations thereon
[7] The crofting community body must apply to the Scottish Ministers in writing and in the prescribed form for consent to the purchase (s 73(2), (5)). The prescribed form requires the applicant to specify inter alia details of the manner in which purchase of the land will further sustainable development and the reasons why the granting of the application would be in the public interest (Crofting Community Body (Prescribed Form of Application and Notice) (Scotland) Regulations 2009 (SSI No 160) (the 2009 Regulations), reg 2, Sch 1, parts 9 and 13). The crofting community body must send a copy of the application to the landowner (s 73(6)(a)) and where there is a lease, as in this case, to the tenant (s 73(6)(aa)).
[8] Section 73 provides inter alia as follows:
"(8) On receipt of an application, Ministers shall-
(a) invite-
(i) [the landowners] ...
(ii) the owners of all land contiguous to land which consists of the subjects of the application;
(iii) the Crofters Commission; and
(iv) any other person whom Ministers consider to have an interest in the application,
to send them, so as to be received not later than 60 days after the sending of the invitation, views in writing on the application; and
(b) send a copy of the invitation to the crofting community body...
(10) Ministers shall, as soon as may be after receiving an application, give public notice of it and of the date by which, under subsection (8)(a) above, views are to be received by them and, in that notice, invite persons to send to Ministers, so as to be received by them not later than 60 days after the publication of the notice, views in writing on the application ...
(12) Ministers shall-
(a) send copies of any views they receive under this section to the crofting community body; and
(b) invite it to send them, so as to be received by them not later than 60 days after the sending of that invitation, its responses to these views.
(13) Ministers shall, when considering whether to consent to an application under this section, have regard to all views on it and responses thereto which they have received in answer to invitations under this section."
The granting of consent
[9] Section 74 provides inter alia:
"(1) Ministers shall not consent to an application under section 73 above unless they are satisfied-
(a) that the croft land to which the application relates is eligible croft land ...
(i) that the crofting community body complies with the provisions of section 71 above;
(j) that the exercise by the crofting community body of the right to buy under this Part of this Act is compatible with furthering the achievement of sustainable development ...
(l) that the crofting community so defined are, in relation to the subjects of the application, an appropriate crofting community;
(m) that the crofting community so defined have approved the proposal to exercise the right to buy; and
(n) that it is in the public interest that the right to buy be exercised ...
(2) For the purposes of subsection (1)(n) above, the public interest includes the interest of any sector (however small) of the public which, in the opinion of Ministers, would be affected by the exercise of the right to buy, and such a sector includes a community as defined for the purposes of section 34(1)(a) above and a crofting community as defined for the purposes of section 71(1)(a) above."
[10] The Scottish Ministers may grant consent subject to conditions (s 80).
The ballot
[11] The crofting community's approval (s 74(1)(m)) is determined by a ballot conducted by the crofting community body. The Community Right to Buy (Ballot) (Scotland) Regulations 2004 (SSI No 228) (the 2004 Regulations) (cf (s 75)) require that the ballot is "secret" and is "conducted in a fair and reasonable manner" (reg 2). The crofting community body must retain all completed voting papers and related documentation so that it is available for inspection by inter alios the landowners (reg 8). The Regulations do not give landowners any control over how the ballot is conducted, when it is held, how the ballot question is framed or how the electorate is ascertained.
[12] For the crofting community to approve of the proposal a majority of all community members voting and a majority of croft tenants of the land must vote in favour. The Scottish Ministers have issued Guidance covering the conduct of the ballot (Crofting Community Right to Buy under Part 3 of the Land Reform (Scotland) Act 2003, June 2009). The Guidance suggests that a ballot should be supervised by an independent professional person appointed for that purpose, such as a returning officer. The crofting community body followed that guidance in this case.
Reference to the Scottish Land Court
[13] At any time before the Scottish Ministers have determined the application, the Ministers, a member of the crofting community or a landowner may refer "any question ... relating to the application" to the Scottish Land Court (s 81(1)). Section 81 further provides as follows:
"(3) The Land Court
(a) shall advise Ministers of its finding on any questions so referred; and
(b) may, by order, provide that Ministers may consent to the application only if they impose ... such conditions as the court may specify.
(4) If the Land Court considers any question referred to it under this section to be irrelevant to Ministers' decision on the application to which it relates, it may decide to give no further consideration to the question and find accordingly."
Purchase of eligible additional land - without the landowner's consent
[14] A crofting community body may buy eligible additional land (s 70, supra) without the landowner's consent, but only if the Land Court so determines (s 77). The Land Court may authorise the purchase of such additional land only if it is satisfied inter alia that the purchase is essential to the development of the crofting community (s 77(3)(a)) and that such development is compatible with furthering the achievement of sustainable...
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