Small landholdings in Scotland: legislation review

Footnotes

1. Scottish Government Rural and Environmental Science and Analytical Services, 'Results from the June 2016 Agricultural Census'. Available at: http://www.gov.scot/publications/results-june-2016-scottish-agriculture-census/ Smallholdings are a mix of owner-occupied or are tenanted secure 1991 Act and small landholdings, of which there are around 20 000 in Scotland today.

2. Agricultural Holdings Legislation Review Group, 'Review of Agricultural Holdings Legislation: Interim Report' (2014), p.79. Available at: http://www.gov.scot/Resource/0045/00452838.pdf ( AHLRG - Interim Report)

3. Agricultural Holdings Legislation Review Group, 'Review of Agricultural Holdings Legislation: Final Report' (2015), Recommendation 23. Available at: http://www.gov.scot/Publications/2015/01/5605 ( AHLRG - Final Report)

4. Ibid, paragraph 219.

5. Land Reform Review Group, 'Land Reform Review Group Final Report - The Land of Scotland and the Common Good' (2014), p.195. available at: http://www.gov.scot/publications/land-reform-review-group-final-report-land-scotland-common-good/ ( LRRG Final Report)

6. See Annex 2 for a list of legislation for small landholdings.

7. The former counties of Argyll, Caithness, Inverness, Orkney, Ross and Cromarty, Sutherland and Zetland (see section 61(1) of the Crofters (Scotland) Act 1993) (1993 Act).

8. The Royal Commission of Inquiry into the Condition of Crofters and Cottars in the Highlands and Islands (known as the Napier Commission) was established in 1883 to investigate conditions causing hardship to crofters and cottars which were the root of widespread unrest in the Highlands and islands. Disputes were the result of tenants concerns about high rents, lack of rights and eviction to make way for larger farm operations. The Napier Commission Report was published in 1884, with documents available from the following link: https://www.whc.uhi.ac.uk/research/napier-commission.

9. Crofters Holdings (Scotland) Act 1886 (1886 Act), Part I, s(1-3)

10. Ibid, Part II, s(4-6)

11. Ibid, Part IV, s(8-10)

12. Ibid, Part IV, s(34).

13. The "Crofters Acts" are defined in section 31 of the 1911 Act as the Crofters Holdings (Scotland) Act 1886, the Crofters Holding (Scotland) Act 1887, the Crofters Common Grazings Regulation Act 1891 and the Crofters Common Grazings Regulation Act 1908.

14. See section 2 of the 1911 Act.

15. Amended to '3 kilometres' by the Agriculture (Adaptation of Enactments) (Scotland) Regulations 1977 (S.I. 1977/2007).

16. In Lewis these amounts were £30 and 30 acres; see section 27 of the 1911 Act.

17. S 26 of the 1911 Act. See also James Scott, 'The Law of Smallholdings' (1993), pp. 4-5. It was possible to have a holding of between 2-300 acres where the rent did not exceed £50. In 1912, £50 was equivalent to £4000 (approx.).

18. Section 7 of the 1911 Act.

19. Section 2(2) of the 1911 Act.

20. Section 2(1)(iii) of the 1911 Act.

21. Primarily section 32 of the 1911 Act.

22. See section 32(2) of the 1911 Act.

23. Section 32(2) of the 1911 Act.

24. Section 32(11) of the 1911 Act.

25. Smallholders and small farms are distinct from statutory small landholders: the former includes owner-occupier small holdings, owner-occupied and tenanted farms of 50 acres or less.

26. James Scott, 'The Law of Smallholdings' (1993), pp. 4-5

27. 2016 Agricultural Census

28. In 1928 the Report of the Committee on Land Settlement in Scotland (the Nairn Committee) had recommended that the government discontinue the creation of small landholdings on privately owned estates.

29. See, for instance, Highland Primary Care NHS Trust v. Thomson 1999 S.L.C.R. 32

30. a letting of land for a term of years, or lives of the tenant, or for lives and years

31. Scottish Government figures indicate a marked reduction in employment figures in agriculture from 127 000 (1931) to 63,473 (2016) people.

32. Crofters (Scotland) Act 1955, section 3, and see also transitional and saving provisions in section 39(5). The 1955 Act was repealed and replaced by the Crofters (Scotland) Act 1993, which consolidated the law on crofting.

33. With effect from 4 February 2010 Section 3A(1) of the Crofters (Scotland) Act 1993 (inserted by the Crofting Reform etc. Act 2007) allows Scottish Ministers to designate new areas in Scotland where crofts can be created, with the approval of the Crofters Commission. The Crofting (Designation of Areas) (Scotland) Order 2010 designates certain areas for this purpose.

34. See section 8 of the 1886 Act (read with section 12 of the Small Landholders and Agricultural Holdings (Scotland) Act 1931(1931 Act)) and section 30 of the 1993 Act; see also Strachan's Trustees v Harding 1990 SLT (Land Ct) 6.

35. As either a landholding or as a statutory small tenancy.

36. See section 1 of the 1886 Act, as read in accordance with subsequent legislation on small landholdings.

37. See section 7 of the 1886 Act, as read in accordance with section 18 of the 1911 Act and section 22 of the 1931 Act.

38. See section 2 of the 1886 Act, as read in accordance with section 19 of the 1911 Act.

39. See section 32(15) of the 1911 Act, as read in accordance with section 13 of the 1931 Act.

40. The tenant or small landholder can only exercise his right to buy when the owner proposes to sell the tenanted land.

41. The ability to require a landlord to sell the farm to their tenant or small landholder without the land being on the open market.

42. Paragraph 215 and Recommendation 23 , of the AHLRG - Final Report

43. Paragraphs 13 and 15, Section 27 - LRRG - Final Report.

44. All the small landholders on Arran we have spoken with report that they have had to rely on a second income in order to sustain their agricultural lifestyle.

45. The maintenance obligation is similar to that of secure tenants under the 1991 Act to maintain fixed equipment, however the small landholder has to carry the additional cost of replacement; legal provisions under crofting law are the same.

46. The legislation states that the holding may be bequeathed to "one person". This, and certain Scottish Land Court cases, suggest that this means that the holding cannot be bequeathed to two or more persons to be shared amongst them. See, section 16(2) of the 1886 Act as read in accordance with the 1911 and 1931 Acts; see also Anderson v. Barclay-Harvey 5 SCLR 65; and James Scott, 'The Law of Smallholdings' (1993), p.122, although cf Scott, p.60 on joint tenants where an existing crofter, existing year to year tenant or qualified leaseholder held a holding on a joint tenancy basis immediately before they became classed as landholders on 1 April 1912.

47. Generally those are the categories of persons listed in section 2 of the Succession (Scotland) Act 1964, Statutory small tenants may bequest their tenancy to the same categories of persons as landholders (section 32(1) of the 1911 Act).

48. Section 16 of the 1886 Act, as read in accordance with the 1911 and 1931 Acts.

49. See section 16 of the 1964 Act.

50. "Agricultural lease" includes a lease of a holding within the meaning of the Small Landholders (Scotland) Acts 1886 to 1931 (section 16(9) of the 1964 Act.

51. Section 21 of the 1911 Act (as amended by the Succession (Scotland) Act 1964).

52. Under section 21 of the 1911 Act, the persons to whom a landholder may apply to assign his lease are their son-in-law or any one of the persons who would be, or would in any circumstances have been, entitled to succeed to the estate on intestacy by virtue of the Succession (Scotland) Act 1964 (see section 2 of the 1964 Act).

53. Representatives of the late Hugh Matheson v Master of Lovat 1984 SLCR 82 - landlord's implied consent to an assignation.

54. Section 32(1) of the 1911 Act. & Representatives of the late Hugh Matheson v Master of Lovat 1984 SLCR 82.

55. A new entrant would need to be a member of the family to succeed to the tenancy or to have the tenancy assigned to them by the current tenant.

56. See section 8 and the schedule of the 1911 Act (as read in accordance with section 12 of the 1931 Act),

57. See paragraph 1 of the schedule of the 1911 Act.

58. Section 12 of the 1993 Act.

59. Section 1 of the 1886 Act (as read in accordance with the 1911 and 1931 Acts).

60. See section 5 and paragraphs 6 and 8 of schedule 2 of the 1993 Act.

61. See section 1 of the 1886 Act (as read in accordance with the 1911 and 1931 Acts).

62. See section 3 of the 1931 Act

63. See section 5 and paragraph 5 of schedule 2 of the 1993 Act.

64. See Part 2 of the Housing (Scotland) Act 2006, and in particular section 93 of that Act.

65. Land immediately around the farm house and including any associated adjacent farm buildings; excludes fields etc

66. Although see section 32(11) of the 1911 Act as regards statutory small tenants.

67. Section 1(7) of the 1886 Act (as read with the 1911 and 1931 Acts)

68. Section 11 of the 1911 Act.

69. Mackintosh v. Lumsden, 1 S.L.C.R. 92

70. See sections 5 and 6 of the 1911 Act (as enacted).

71. See section 29 of the Land Settlement (Scotland) Act 1919 (as enacted)(1919 Act).

72. Funding for capital projects eligible under the Small Farm Grant Scheme can cover all aspects of the project, including the cost of materials, transportation of materials, costs of contractors and your own labour. This is a competitive scheme and eligibility is not a guarantee of success. Available at: https://www.ruralpayments.org/publicsite/futures/topics/all-schemes/small-farms-grant-scheme/

73. See section 6 of the 1886 Act (as read in accordance with the 1911 Act); although in practice there are few recent cases if any of either party applying to court to resolve such issues.

74. See section 32(8) of the 1911 Act.

75. Mackinnon v Duke of Hamilton's Trustees 6 S.L.C.R 119; 1918 S.C. 274

76. Section 6(2) of the 1911 Act (as read in accordance with the 1911 Act).

77. See section 3 of the 1931 Act.

78. See section 6 of the 1993 Act.

79. As of the date of this report the relevant provisions of the Land Reform (Scotland) Act 2016 (2016 Act) are not yet in force.

80. See section 8 of the 1886 Act (as read in accordance with section 12 of the 1931 Act).

81. See section 8 and the schedule of the 1886 Act

82. See section 10 of the 1886 Act (as read in accordance with the 1911 and 1931 Acts).

83. Strachan's Trs v Harding 1990 SLT (Land Ct) 6 is an example of the Scottish Land Court valuing the improvements on a small landholding.

84. The Law of Smallholdings, James Scott, 1933, Ch 6, Distinctive Rights of Smallholders, p80

85. See section 23 of the 1911 Act.

86. The Law of Smallholdings, James Scott, 1933, Ch 6, Distinctive Rights of Smallholders, p85 ; Wight v Morison 10 SLCR 91

87. Hannan v Dalziel (11 SLCR 15)

88. In certain circumstances recourse may be had to arbitration.

89. Section 33 of the 1911 Act.

90. James Scott, 'The Law of Smallholdings' (1993), p.243

91. Section 3 of the Crofting Reform (Scotland) Act 2010 (2010 Act).

92. Scottish Parliament's Rural Economy and Connectivity Committee
9 Nov 2016. Available at: http://www.parliament.scot/parliamentarybusiness/report.aspx?r=10620&mode=pdf;
16 Nov 2016. Available at: http://www.parliament.scot/parliamentarybusiness/report.aspx?r=10632&mode=pdf

93. Section 17 of the 1911 Act (as read in accordance with the 1919 and 1931 Acts). The functions of the Board of Agriculture were transferred to the Secretary of State for Scotland and then devolved to Scottish Ministers: see Secretaries of State Act 1926, Reorganisation of Offices (Scotland) Act 1928, Reorganisation of Offices (Scotland) Act 1939, and the Scotland Act 1998.

94. Agricultural Law in Scotland, Crispin Agnew of Lochnaw, Ch 22, Small holdings and statutory small tenancies, Vacant Holdings, p 259

95. Ibid, p 260

96. Section 7 of the 1886 Act

97. Agricultural Law in Scotland, Crispin Agnew Of Lochnaw, Ch 22, Small holdings and statutory small tenancies, Vacant Holdings, p 263

98. Stair Encyclopaedia: The Laws of Scotland , page 367

99. Section 4 of the 1993 Act, as amended

100. Section 2 of the 1886 Act (as read in accordance with the 1911 and 1931 Acts).

101. See section 2 of the 1886 Act and section 19 of the 1911 Act.

102. Lands Improvement Holdings Landmatch Sarl v Cole, 2015 S.L.T. (Land Ct) 137 held in favour of the tenant on the basis that the resumption would not be reasonable and that there was no prospective buyer of the land intended for development.

103. Section 2 of the 1886 Act.

104. The Crofting (Designation of Areas) (Scotland) Order 2010

105. Sections 3A and 3B of the 1993 Act (as amended). Holdings tenanted under the Agricultural Holdings (Scotland) Acts 1991 and 2003, whether in the crofting counties or in new areas designated, cannot be converted to crofts without the written agreement of both owner and tenant.

106. See section 12 of the 1993 Act.

107. Crofters are required to submit regulatory applications to the Crofting Commission to make changes to their croft including apportionment of common grazings land, assignation and letting.

108. Para 140, Scottish Government Report to Parliament: Economic Condition of Crofting, 2011-2014. Available at: http://www.gov.scot/Resource/0047/00473575.pdf

109. Scottish Parliament's Rural Economy and Connectivity Committee, 9 Nov 2016. Available at:
http://www.parliament.scot/parliamentarybusiness/report.aspx?r=10620&mode=pdf;
18 Nov 2016. Available at:
http://www.parliament.scot/parliamentarybusiness/report.aspx?r=10632&mode=pdf

110. See section 7 of the 1911 Act (as amended).

111. See the Small Holdings Colonies Act 1916, the Small Holdings Colonies (Amendment) Act 1918, and the Land Settlement (Scotland) Act 1919.

112. See the Secretaries of State Act 1926, Reorganisation of Offices (Scotland) Act 1928, Reorganisation of Offices (Scotland) Act 1939, and the Scotland Act 1998.

113. Scottish Parliament's Rural Affairs, Climate Change & Environment Committee, the predecessor of the Rural Economy and Connectivity Committee

114. Scottish Parliament's Rural Economy & Connectivity Committee

115. Argyll, Inverness, Ross & Cromarty, Caithness, Sutherland, Orkney and Shetland

116. Also described as council farms or county farms; Note: there are small holdings in England under private tenancy agreements as there are in Scotland, but DEFRA does not collect data on them as a distinct group.

117. Department of Environment, Food & Rural Affairs

118. Section 39

119. Chartered Institute of Public Finance and Accountancy

120. Department for Environment, Food & Rural Affairs, 'Local Authority Rural Estate Asset Management Planning - Good Practice Guidance' (2015). http://www.aces.org.uk/images/editor/TRIG_REPORT-FINAL-WEBpdf.pdf

121. Welsh Government, 'Annual report on Local Authority Smallholdings in Wales 2014 - 15. Available at: http://gov.wales/docs/drah/publications/160317-smallholding-report-2014-15-en.pdf

122. Section 59(2)

123. Department of Agriculture, Environment and Rural Affairs Northern Ireland

124. Scottish National Party Manifestos. 2011, available at: http://votesnp.com/campaigns/SNP_Manifesto_2011_lowRes.pdf; and 2016, available at: https://d3n8a8pro7vhmx.cloudfront.net/thesnp/pages/5540/attachments/original/1485880018/SNP_Manifesto2016-web_(1).pdf?1485880018

125. AHLRG - Final Report. Available at: http://www.gov.scot/Publications/2015/01/5605

126. 1991 Secure Act tenancies

127. LRRG - Final Report p 192

128. 2016 Act, Part 11, s124

129. Crofters (Scotland) Act 1993, The Crofting Reform (Scotland) Act 2010 , Crofting Reform etc. (Scotland) Act 2007, The Crofting (Designation of Areas) (Scotland) Order 2010

130. Factor or land agent

131. There is some uncertainty about the numbers of small landholding landlords

132. There are 2 types of small landholder - the landholder and the statutory small tenant; landholders provide all of their infrastructure and statutory small tenants will have part or all of their infrastructure provided by their landlord.

133. E.g resumption of a small landholding under section 2 of the 1886 Act, as read in accordance with section 19 of the 1911 Act.

134. This position is in contrast to other tenancy types; crofters and secure 1991 Act tenants already have a right to buy.

135. land under their houses

136. Peter Porter quote from Small Landholder #1, Arran

137. The Crofters (Scotland) Act 1993; the Crofting Reform etc Act 2007; Crofting Reform (Scotland) Act 2010

138. The Scottish Government advised small landholders on Arran about the new service run by the Scottish Agricultural College. The Croft and Small Farm Advisory Service is available for crofts and small farms engaged in primary agriculture farming less than 30 ha.

139. The Forestry Commission's ( FC) estate on Arran is 10 378 ha and of this 7 025 ha is planted. The remaining 3 713 ha is open ground and of that 28.57 ha is being managed for agricultural purposes. Of this agricultural land the FC operates a range of agricultural lets including 1991 Act tenancy, forest worker holdings, grazing or seasonal lets and various lets under the 2003 Act. FC advised the Scottish Government that none of the land listed is let as a small landholding and that they not aware of having used this form of tenure in the past.