'Definitive register' best answer to croft land disputes

Published on Sunday 15 November 2009 20:23

KEITH Graham, the retiring principal of the Scottish Land Court, tells John Ross why he favours reform

A DEFINITIVE register of crofts would help resolve future boundary disputes, according to the man who has seen more than his fair share of complex crofting wrangles.

Keith Graham will retire from the Scottish Land Court in January after 37 years' service, including 27 as principal clerk.

In that time, he has witnessed hundreds of legal arguments over land, often heated and usually highly involved, confirming the oft-quoted description of a croft as an area of land surrounded by rules and regulations.

The job has taken him on more than 300 excursions out of his Edinburgh base, often for a week at a time, and seen him cover about 101,000 miles by car – not to mention by trains, planes and some hair-raising island-hopping ferry trips.

Mr Graham, 62, left Edinburgh University with a Bachelor of Laws degree and was apprenticed to Sir Alastair Blair and others in the firm of Davidson & Syme between 1968 and 1970. He was an assistant in Cuthbertson Riddle & Graham between 1970 and 1972.

Deciding he wanted a change, Mr Graham applied for a post advertised at the then Scottish Secretary's offices. He was asked what he knew about crofting law and when he replied "absolutely nothing", was told "don't worry, you'll soon learn it".

And learn it he did. He became a legal assessor with the land court in 1972 and ten years later was principal clerk and on the way became an accredited specialist in agricultural law and crofting law.

He is the author of Graham on Scottish Land Court Practice and Procedure, the joint editor of Greens Annotated Acts – Crofting (Scotland) Act 1993 and Crofting Reform etc Act 2007, editor of Current Law Statutes – Transfer of Crofting Estates (Scotland) Act 1997 and the Land Reform (Scotland) Act 2003 and the joint editor of the crofting law section of the Stair Memorial Encyclopaedia of the Laws of Scotland.

He was also a founder member of the Crofting Law Group in 1994 and has been its secretary and treasurer ever since.

The biggest change in legislation he has seen was the 1976 Act, which gave crofters the right to buy their land. The move led to the Land Court appointing extra staff to deal with the expected deluge of applications.

"We predicted we would be swamped with cases," Mr Graham says. "Then we sat, and sat, and sat, and got one purchase application, another two to three in 1977 and a trickle since then."

More recently, land reform legislation has seen crofters take over whole estates, such as Assynt, North Harris and South Uist. It has thrown up some interesting cases, not least the crofters in South Uist, who became landlords with the estate takeover, and involved in a Land Court case against fellow crofters over the extension of a golf course at Askernish.

The range of cases the court dealt with during Mr Graham's time there varied from a dispute over rent on a 20,000-acre farm to a boundary challenge on a croft measuring less than an acre.

Often the disputes were heated – and sometimes sad. Mr Graham's most tragic case involved a father and son who had fallen out over a croft, an argument that led to breaches of the peace, shotguns being brandished and a sheriff court case.

"As the father and son sat in court, the son stared at his father continuously throughout the hearing and the father stared at the ceiling all of the hearing," he recalls. "You could feel the tension and hatred between them even sitting on the bench.

"But a lot of cases involve crofts that have been in a family for generations and people feel very strongly about them.

"Someone sees their grandfather and father crofting up to a certain boundary and then all of a sudden someone comes along and challenges that; they can get uptight about it."

The crofting community is currently being exercised by the Crofting Reform Bill, currently making its way through parliament. After the former Scottish Executive's attempted reform was heavily criticised, a committee of inquiry was set up in 2006 under Professor Mark Shucksmith. Mr Graham was a legal adviser to the committee.

The present Scottish Government has since developed draft proposals and intends bringing a Bill to Parliament by Christmas.

The environment minister, Roseanna Cunningham, has already dropped controversial occupancy proposals that would have meant houses built on former croft land had to be used as main residences.

That was supposed to tackle the problem of speculation of croft land and the number of crofts being used for second or holiday homes. But responses to the consultation process show that, five years on, crofting communities are still divided on this and other major issues that the Bill is designed to tackle.

Is Mr Graham surprised at the length of time it's taking to sort out the reform bill? "No," he states. Would he care to expand on that? "No."

He does agree that some kind of reform is needed to tackle problems such as speculation, but does he think that issue will ever be fully resolved?

"I don't know if they will ever sort it out 100 per cent," he says. "They might get something organised to get a way around it."

Plans to establish a new crofting register have generally been supported, but the consultation revealed there is division over what type of information could be held on such a document, while many feel the 250 cost of registering is excessive.

North Assynt Estate said the suggestion that crofters will have to meet the cost of creating such a register was "discriminatory or unfair – crofters should not be required to bear the cost of state regulation".

But Mr Graham believes that a register would be beneficial to the crofting community. "One thing that strikes me as extremely useful to have is a definitive register of crofts which would map out boundaries," he says.

"It has led to comments due to costs involved – crofters see that they will have to maybe pay a surveyor to make a proper plan of their croft and pay a fee for the registration.

"But at the end of the day we have so many problems with the existing register. People come here and say it shows their croft being five acres and when they measure out the boundaries it is four acres and they say, 'Where's my extra acre?'"

He adds: "It would be a great advantage. To get something like the land register would be a good thing, but it will take time and cost a bit of money."

Looking ahead, Mr Graham says that, with his Law Society accreditation having another three years to run, and his practising certificate valid until next September, he is open to some consultancy work when he does leave the Land Court.

Other than that, he intends to spend more time with his wife and grandchildren.

But don't expect him to buy a croft.