Highlands and Islands Airports Limited (HIAL) has failed to persuade the Scottish Land Court that crofting rights relating to an area of land adjacent to Stornoway Airport had been extinguished in the 1940s. HIAL had hoped to sell the land for the construction of new housing, but the Court has ruled that it should remain within crofting tenure.

Wartime requisition of land

The dispute concerned an area of land which, prior to the Second World War, formed part of the common grazings of crofts adjacent to the newly established airport at Stornoway on the Isle of Lewis. Common grazings are areas of land used by a number of crofters who hold a right to graze stock on the land and cannot be developed without the land being resumed from crofting tenure.

In 1940, the government took over the airport as part of the war effort. The government also took over some surrounding land, including the area under dispute, to expand the airport and form an RAF base.

No statutory compulsory purchase process was carried out. Instead, the requisition of the land was regulated by Minutes of Agreement. Under these Agreements, reference was made at the end of the war to the Land Court to determine compensation due to the crofters whose common grazings had been curtailed by the requisition.

After the war, RAF Stornoway was disbanded and the airport returned to civilian use. In 2001, the government sold the land to HIAL, which wanted to build new housing on part of the land around the airport, including the land forming part of the common grazings.

Accordingly, HIAL asked the Land Court to declare that the land stopped being subject to crofting legislation when it was taken over as part of the war effort. Had this been successful, it would have allowed HIAL to sell or develop the land without requiring the prior consent of the crofters. The crofters objected to HIAL’s application and the judgment of the Land Court was issued in January 2019.

The legal arguments

HIAL put forward two arguments in support of their position.

First, they argued that the requisition by the government during the Second World War was a form of compulsory purchase, as a result of which the crofters' rights had been extinguished. Second, they argued that if the land had not been acquired by the government compulsorily, then the crofters had, by entering into the Agreements, voluntarily relinquished their rights.

The crofters argued that no legal process had been followed to remove land from crofting tenure. For land to be released from crofting controls, there must be either:

  1.  A "resumption order" made by the Court on the application of the land owner to restore full control of the land to them; or
  2.  A "decrofting direction" made by the Crofting Commission on the application of either the landlord if the croft lies vacant and no new tenant can be found, or a crofter who has exercised their right to buy their croft; or
  3.  A compulsory purchase.

HIAL had, the crofters argued, not set out any argument for the means by which the land was removed from crofting tenure. There was no court order, and no compulsory or voluntary relinquishment of crofting rights in relation to the land.

No removal from crofting

The Land Court found in favour of the crofters, and refused to give the declaration sought by HIAL.

In the Court's view, no statutory process for compulsory purchase had been followed. Therefore, the Court's view was that it could not come to its decision based on what would have happened if such a process had been followed. As no accepted method for removing land from crofting controls had been carried out, it follows that the land in question must remain subject to such controls.

The case shows 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' to retrospectively fit a particular set of circumstances into one of the accepted means of removing crofting controls.

With additional reporting by Ian Crombie.

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