The use of common grazing land near Stornoway airport by crofters has been stopped, opening up the development potential of the land. The Court of Session has determined that the land was in fact subject to compulsory acquisition by the Secretary of State for Air during World War Two, overturning the crofters’ earlier Land Court victory.
Historical common grazing rights
Crofters used the land as common grazing before World War Two. In 1940, the Government took it over, along with the airport, to support the war effort. Although no statutory compulsory purchase process was used, the transfer was governed by a number of written agreements between the Secretary of State and the crofters. Ownership of the land was registered after the war, backdating the Secretary of State’s date of entry to the land to 1 June 1941.
The crofters referred the question of compensation for the Secretary of State’s acquisition of the land to the Land Court in 1945, under the terms of the written agreements. The Land Court issued an order for compensation in December 1945 in the sum of £13,057.14s - the same price included in the backdated disposition of the land.
The airport (including the former common grazings land) returned to civilian use after the war. In 2001, the airport and the former common grazings were sold by the Government to Highlands & Islands Airports Ltd (HIAL). In 2018, HIAL asked the Land Court to declare that the crofting rights had been extinguished by the Secretary of State’s compulsory acquisition.
Crofters’ Victory in the Land Court
In February 2019, the Land Court decided the crofters did still hold crofting rights over the land. Our summary of this decision can be found here.
The Land Court’s decision was based on the following factors:
- no formal statutory process of compulsory acquisition had been followed by the Secretary of State when the former common grazing land was taken over by the Government;
- the disposition transferring title to the Secretary of State was not in the statutory form required for compulsory acquisitions, and was instead consensual between the parties; and
- the written agreements referred to the compulsory acquisition as “interfering” with the crofters’ rights, which suggested something short of a complete extinction of them.
HIAL's Victory in the Court of Session
HIAL, which wishes to build affordable housing on the land, appealed the Land Court’s decision to the Court of Session, which allowed the appeal, finding the relevant land had been subject to compulsory acquisition.
HIAL’s key argument was that the referral to the Land Court in 1945 on the issue of compensation for the crofters could not have been undertaken unless there had been a compulsory acquisition. Despite the lack of documentation to support a compulsory acquisition process having been followed, the Court of Session agreed.
The relevant legislation makes it clear that “it is dealing with compensation for land ‘to be acquired compulsorily’”, and the 1945 Land Court decision made clear that it was assessing “compensation for land which was compulsorily acquired under statute”. The written agreements themselves referred to assessing compensation for “compulsory acquisition”.
In light of all of this, the only explanation could be that the Land Court was assessing compensation due to the crofters after the land had been acquired by the Secretary of State.
The Court of Session did not agree with the Land Court’s decision that the Secretary of State’s taking control of the land merely “interfered” with the crofters’ rights, and instead took the view that the compensation was paid for the “future permanent loss” suffered by the crofters. Using the statutory form of compulsory acquisition disposition was not necessary, as its use was permissive, not mandatory. Nor did it find persuasive the fact that no documentation could be found to support the argument that a formal compulsory purchase process had been carried out. The references in the Minutes of Agreement and the Land Court’s 1945 decision were, in the court’s opinion, sufficient.
The takeaway
Following the original decision of the Land Court in February 2019, we expressed the view that the Land Court “is not prepared to depart from the established modes by which land can be removed from crofting tenure or ‘read between the lines’”. However, the Court of Session concluded that the evidence “points firmly to the opposite conclusion” from that which the Land Court had reached. It could prove difficult in the future to challenge historic compulsory purchases on the basis that formalities were not followed, if there is other evidence that suggests that both parties understood that a compulsory acquisition was taking place.
With additional reporting by Alec Fair.