Pairc legal challenge rejected

1 March 2013

The long running dispute over the right of the crofters of the Pairc Estate in Lewis to buy their croft land looks closer to reaching a conclusion, following the recent ruling of the Court of Session against the landlord. Barry Lomas, current owner of the Pairc Estate, had argued that his rights as landlord had been infringed under Human Rights legislation and the power of the Scottish Government to legislate for  such a purchase was outwith their legislative competence. The Sheriff Court in Stornoway referred the question to The Court of Session on the basis of these issues, who unanimously disagreed with Mr Lomas and upheld the decision of the Scottish Ministers to give the go ahead to the purchase.

The ability of the Crofters of Pairc to attempt to buy the croft land came about as a result of the Land Reform (Scotland) Act 2003, which enabled crofting communities to purchase croft land regardless of whether the landlord was willing to sell. They were also able to buy the rights to the tenancy that had been granted to a renewable energy company – a potentially lucrative source of income from the land. Certain administrative hurdles have to first be cleared; including the requirement for a crofting community body to be formed and a ballot with the majority of eligible voters favouring the purchase. The decision then goes to the Scottish Ministers for approval, who amongst other things look at whether the purchase will be of benefit to the community – whether it is in the public interest, and whether there will be sustainable development.

The landlord’s argument had two main points: that Part 3 of the Land Reform (Scotland) Act 2003, was incompatible with his rights under the European Convention of Human Rights, specifically the right to peaceful enjoyment of property (Article 1 of Protocol 1), and the Article 6 right to a fair hearing (in this context, the ballot system used under the Crofting Community Right to Buy (Ballot) (Scotland) Regulations 2004). He also submitted that if this was incompatible, it would therefore be outwith the legislative competence of the Scottish Parliament to make such legislation in the first place under the terms of the Scotland Act 1998.

In answering these questions, the Court found that there was adequate scrutiny of the application by the ministers, and sufficient opportunity for the Landlord to put forward their views as part of the decision making process. The varied stages including consulting the landlord, and interested parties, along with the ability of the Landlord to refer the matter to the Land Court was found to be sufficient safeguards for the Landlord in terms of Article 1 Protocol 1. Within the breadth of criteria to be considered by the Ministers in an application, this includes the public interest and sustainable development, which was questioned by counsel for Mr Lomas as being ‘not law’, being too vague to have legal force. This was also rejected.

Furthermore, the prescribed ballot procedure was said to have complied with the regulatory framework, and to expect further procedural safeguards in these circumstances was ‘unrealistic and disproportionate’.

Providing Mr Lomas does not take his challenge to a higher court, the decision would appear to leave the path clear for the crofters of Pairc to finally buy the land they work on. It may also deter future attempts by landlords who are anti-sale from mounting a legal challenge to prevent a crofting community buyout. It remains to be seen whether, ten years on from the introduction of the legislation, further crofting communities will now attempt a buy-out as a result of this decision.

Whether you are a crofter who would like more information on the procedure involved in crofting community buyout, or a crofting landlord who wishes to know what their rights are under the legislation, Inksters can assist you. Brian Inkster in Glasgow and Eilidh Ross in Inverness are experienced crofting law practitioners. You can contact them by email or call us on 0141 229 0880.

This is an extended version of the article that appears in the March edition of the Island News & Advertiser


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