Land Compulsion and Crofting Tenure: Highlands & Islands Airports Ltd v Committee for the Combined Common Grazings of Melbost and Branahuie [2020] ScotCS CSIH_8

Introduction

The case of Highlands & Islands Airports Ltd v Committee for the Combined Common Grazings of Melbost and Branahuie ([2020] ScotCS CSIH_8) addresses a significant legal issue concerning land tenure and compulsory acquisition in Scotland. The applicants, Highlands & Islands Airports Ltd, sought to sell specific portions of land at Stornoway Airport to a local residential developer. However, the crux of the dispute revolved around whether this land remained subject to crofting tenure, a form of land ownership unique to Scotland that provides certain rights and protections to crofters.

The Scottish Court of Session was tasked with determining whether the land in question had been subject to a compulsory acquisition in the 1940s, which would have nullified any existing crofting rights without requiring further consent from the Land Court. The initial ruling by the Land Court had indicated that such compulsory acquisition had not been demonstrated.

Summary of the Judgment

Delivered by Lord Carloway, the Lord President, the Inner House of the Court of Session overturned the Land Court's earlier decision. The Court held that the land at Stornoway Airport was indeed subject to compulsory acquisition under statutory powers during World War II. As a result, any crofting rights associated with the land were extinguished without necessitating further approval from the Land Court under section 25 of the Small Landholders and Agricultural Holdings (Scotland) Act 1931.

The Court found that, despite the absence of explicit documentation detailing the compulsory acquisition process, the nature of the agreements and the context strongly implied that statutory powers had been employed. Consequently, the compensation paid out was deemed sufficient to nullify any remaining crofting interests.

Analysis

Precedents Cited

The judgment references several key cases and statutory provisions that influenced the Court's decision:

Highlands and Islands Oil and Gas Co v Bourbloch Common Grazings (1995 SLCR 110): Affirmed that compulsory acquisition without formal consent terminates crofting rights.
Macdonald v Prentice's Trustees (1993 SLT (Land Ct) 60): Emphasized that only agreements with the actual landowner can affect crofting rights.
Sorbie v Kennedy (2016 SC 271): Established that acquiring title entails becoming the landlord with corresponding rights and obligations.
Town-Council of Oban v Callander and Oban Railway Co (1892) 19 R 912: Demonstrated that compensation extinguishes crofting rights even without formal acquisition procedures.

Legal Reasoning

The Court employed a multifaceted approach to ascertain whether compulsory acquisition had occurred:

Interpretation of Agreements: The Court scrutinized the Minutes of Agreement and Reference from the 1940s, noting references to compensation assessment under the Acquisition of Land (Assessment of Compensation) Act 1919, which is inherently linked to compulsory acquisitions.
Presumption of Statutory Compliance: Utilizing the maxim "omnia praesumuntur rite et solemniter esse acta," the Court presumed that statutory procedures were followed unless evidence suggested otherwise.
Compensation as Indicative of Compulsion: The nature and structure of the compensation, covering permanent loss of rights and property, underscored the forced nature of the land acquisition.
Absence of Formal Documentation: While the Land Court initially highlighted the lack of formal documentation, the Court of Session countered this by emphasizing the context and implied statutory framework.

Ultimately, the Court concluded that the compensation mechanisms employed were consistent with compulsory acquisition, thereby nullifying any persisting crofting rights.

Impact

This judgment has far-reaching implications for land tenure and compulsory acquisition in Scotland:

Clarification of Compulsory Acquisition: Reinforces that statutory compulsion can nullify land rights even in the absence of explicit formal procedures.
Strengthening Government Powers: Affirms governmental authority to acquire land for public purposes, ensuring that compensations are deemed sufficient when such acquisitions occur.
Protection of Crofting Rights: While it underscores the strength of crofting protections, it also delineates the boundaries wherein these rights can be overridden by statutory powers.
Future Land Transactions: Serves as a precedent for future disputes involving land sales and the validity of existing land tenure systems.

Complex Concepts Simplified

Compulsory Acquisition

Compulsory acquisition refers to the power of the government to take private land for public use, such as infrastructure projects, even if the landowner does not consent. In this case, the government sought to acquire land for military and later civilian airport use.

Crofting Tenure

Crofting tenure is a system of land ownership unique to the Scottish Highlands and Islands, providing crofters with rights to use land for agriculture and living, protected by specific laws to prevent arbitrary loss of these rights.

Section 25 of the Small Landholders and Agricultural Holdings (Scotland) Act 1931

This section stipulates that any agreement which deprives a crofter of their rights must be approved by the Land Court. This ensures that crofters are fairly compensated if their land rights are terminated.

Maxim: Omnia Praesumuntur Rite et Solemniter Esse Acta

A legal principle meaning "all things are presumed to have been done duly and with the necessary formality," used to infer that statutory procedures were followed unless evidence proves otherwise.

Conclusion

The **Highlands & Islands Airports Ltd v Committee for the Combined Common Grazings of Melbost and Branahuie** judgment serves as a pivotal point in Scottish land law, particularly concerning crofting tenure and compulsory acquisition. By affirming the use of statutory powers to nullify crofting rights, the Court of Session has delineated the boundaries of governmental authority and the protections afforded to crofters.

This decision not only clarifies the circumstances under which crofting rights may be overridden but also reinforces the necessity for clear evidence when challenging land acquisitions. The judgment underscores the interplay between statutory powers and traditional land tenures, ensuring that while crofting rights are robustly protected, they are not impervious to legitimate public interest acquisitions.

Moving forward, stakeholders involved in land transactions and crofting pledges will need to pay close attention to the procedural and substantive elements that underpin compulsory acquisitions, ensuring that all statutory requirements are meticulously followed to safeguard rights and facilitate lawful land management.