The Scottish Land Court has refused an application by the owners of Pentland Estate to resume two landholdings occupied by tenant farmer James Telfer for the purpose of creating a film studio.
The origins of crofting law, from which small landholder tenure is derived, are found in the Crofters Holdings (Scotland) Act 1886, and Pentland Estate’s application was brought under Section 2 of the 1886 Act.
The court had regard to the examples set out in Section 2 (which are things that a developing or expanding crofting or smallholding community might need, e.g. the building of houses) and did not agree that the purpose of the resumption - resuming ownership of land - was a reasonable purpose in relation to the good of the estate.
Section 2 does not have a public interest provision and, whilst the court agreed that the project had the potential to bring employment and all sorts of economic activity in its wake, it could not consider this in reaching its decision.
The case has clear ramifications for the estimated 74 remaining small landholdings that are still subject to the 1886 Act.
Applications to resume land from this tenure for the purposes of development will only be allowed if the development is for the good of the estate, with no regard being had to what is in the public interest, potentially limiting what estate owners can do with their land.
What is interesting is, had the application been to resume land subject to crofting control under the Crofters (Scotland) Act 1993 (which does have a public interest provision), the decision may very likely have gone in Pentland’s Estate’s favour.
It is now open to Pentland Estate to appeal the decision to the Court of Session.