Effect of resumption
Resumption may not be the most common method of dealing with crofting tenure to allow a renewable energy project to proceed, but it can be utilised, perhaps for smaller renewable projects where only a small area of a croft is affected by the project.
An application for resumption is made to the Scottish Land Court under Section 20 of the Crofters (Scotland) Act 1993 (the “1993 Act”). If successful, the effect of resumption is to remove the resumed area from the control of the crofting legislation. The land is fully resorted to the landlord’s control, who can then develop it themselves or enter into agreements with third parties. It essentially frees the land from the constraints of the crofting legislation.
Resumption binds successors to the croft, so new crofters inheriting or otherwise occupying the croft are still bound by the original resumption order.
Time period for resumption
If resumption is used for a renewable energy project, it is usually for a temporary period linked to the lifetime of the project. The period for temporary resumption can be extended on the application of the landowner.
At the end of the temporary resumption period, the land is restored to crofting tenure.
Who can object?
Any crofters who have not consented can object. The application must also be notified to the Crofting Commission, who can oppose the application, but the ultimate decision as to whether resumption is authorised lies with the Land Court. Just because the crofters have consented, does not mean the court will automatically authorise the resumption – they need to be satisfied the legal test is met.
The legal test
The Land Court must be satisfied that the resumption is for a ‘reasonable purpose’ having regard to the good of the croft, the good of the estate, the public interest and the interests of the crofting community in the locality of the croft. The 1993 Act lists the generation of energy as a reasonable purpose. Still, the fact that this is included as a reasonable purpose does not mean the development is actually a reasonable purpose in the circumstances. The landlord must still prove that.
Compensation
The Land Court also ensures that the crofters are properly recompensed and the 1993 Act sets out provisions for compensation. In addition to compensation for agricultural loss, a crofter is also entitled to a share in the value of the land resumed. (Section 21(1)).
Will there be a hearing?
Even when agreement has been reached with the crofters, a hearing may still be required so that the Land Court can address the questions of reasonable purpose and valuation. It is the function of the court to decide those issues, notwithstanding any agreement between the parties and it is still at the discretion of the Land Court to refuse the application if the legal test for resumption is not satisfied.
Registration
An application will trigger first registration of the croft in the Crofting Register. The Land Court cannot authorise the resumption unless an application to register the croft is made within six months of the date of the application to the Land Court for resumption. Common practice is to make the application for first registration at the same time as the resumption.
If you have any questions relating to this please do get in touch with Stephanie Hepburn or another member of our Crofting team.