DIVISIONAL COURT

(Sheriff MacLeod)

CASTLE AND OTHERS v PHILP

(Application RN SLC/1/09 – Order of 17 June 2009)

CROFT – RIGHTS IN COMMON GRAZINGS – RELATIONSHIP BETWEEN OWNERS OF LAND COMPRISING COMMON GRAZINGS AND CROFTERS WITH SHARES IN COMMON GRAZINGS – WHETHER ONE OF LANDLORD AND TENANT – WHETHER CONSENT OF OWNERS OF COMMON GRAZINGS REQUIRED TO RENUNCIATION AND RELETTING OF CROFT TENANCIES

The applicants were owners of part of the Avernish Common Grazings, near Kyle of Lochalsh. The respondent was tenant of croft 5 Avernish. Croft 5 had historically had a share in said Common Grazings but in May 1998 the then tenant had renounced her tenancy and the croft had become vacant. In November 2001 Lochalsh Estates Limited, who were the landlords of the Avernish crofts and owners of most the land comprised in the Common Grazings, relet croft 5 to the respondent’s brother who subsequently assigned the tenancy to the respondent. The respondent having subsequently applied to the Crofters Commission for an apportionment of part of the Common Grazings, the applicants applied to the Court for an Order declaring that the respondent did not hold a share in the Common Grazings. In support of their application they argued that both the renunciation by the previous tenant and the reletting of the croft by Lochalsh Estates Limited had been incompetent because they had proceeded without the consent of the applicants or their predecessors in title. At all events, whatever the position regarding the croft might be, any letting of a share in the common grazings without their consent was incompetent and invalid.

Following dicta of the Full Court in Crofters Commission v Arran Ltd 1996 SLCR 103,the Court held that the relationship between the owner of land comprised in common grazings and crofters holding shares in the common grazings was not one of landlord and tenant but that the position was that the right in the common grazings was a pertinent of the croft tenancy and that the only sense in which it was let was as one of the rights making up the tenancy of the croft. There was no separate tenancy as between the crofter and the owner or owners of the common grazings over which the right applied. The consent of the applicants and their foresaids to either said renunciation or reletting had not, therefore, been required and the application was dismissed.

The Note appended to the Court’s Order is as follows:-

[1] The applicants are owners of part of the Avernish Common Grazings, near Kyle of Lochalsh. The respondent is tenant of croft No. 5 Avernish, although his status as such is, at least to some extent, questioned by the applicants in this application.

[2] The applicants seek an Order declaring that the respondent “does not hold a share in the common grazings at Avernish in respect of part of which the Applicants are co-proprietors”.

[3] The relevant facts are as follows:-

(a) The inbye land forming croft No. 5 Avernish is owned by Lochalsh Estates Ltd. They are also the owners of part of the land comprised in the Avernish Common Grazings.

(b) The remoter history of the area of the Avernish Common Grazings now owned by the applicants is not disclosed to us but for a period ending in or around July 1987 it was owned by a Robert James Scott Morton who at or around that time disponed it to his son Robert John Walls Morton and his daughters, Mrs Jean Frances West and Mrs Shelagh Watson Castle equally, the two daughters being two of the present applicants. Said Robert John Walls Morton having been sequestrated in 1995, his share was disponed to his said sisters equally with entry as at 15 February 1997. By disposition dated 10 and recorded in the General Register of Sasines for the County of Ross and Cromarty on 18 March 2003 Mrs West and Mrs Castle disponed said area of the common grazings to themselves and to their respective husbands, the other two applicants in the present case.

(c) Historically croft 5 has had a share in the Avernish Common Grazings, including the area thereof now owned by the present applicants.

(d) For a period from 1 November 1988 to 28 May 1998 croft 5 was tenanted by Mrs Anne Fraser. Mrs Fraser renounced the tenancy with effect from the latter date. It is not disputed that throughout her tenancy she held a share in the common grazings as aforesaid. As at the date of her renunciation, Mrs West and Mrs Castle owned the area of land now owned by all four applicants but they were not consulted about said renunciation and had no involvement in it.

(e) Following a period during which the tenancy of said croft seems to have been vacant, Lochalsh Estates Limited purported to relet it to Alastair James Philp, brother of the present respondent, with effect from 28 November 2001. At that time said part of the common grazings continued to be owned by Mrs West and Mrs Castle. Again they were not consulted about the reletting and had no involvement in it.

(f) With effect from 15 October 2004 said Alistair Philip assigned the tenancy of the croft to his brother, the present respondent.

(g) The respondent has applied for an apportionment of part of the common grazings. The applicants dispute his right to do so and have brought the present application in order to have the position determined.

[4] Against that background what the applicants say is that neither the purported renunciation by Mrs Fraser in May 1998 nor the purported re-letting of the croft by Lochalsh Estates Ltd in November 2001 were valid, at least in so far as purporting to renounce or grant grazings rights in the common grazings, because Mrs West and Mrs Castle, who were owners at the material time, played no part in these transactions.

[5] The respondent’s position is that, once constituted, a right in common grazings is a pertinent of a croft and as such is, at least for most purposes, an inseparable part of it so that not only is the right good against singular successors in the ownership of the land comprising the common grazings but survives renunciation and reletting of the croft tenancy without necessity for the consent of the owner of the common grazings to either.

[6] Both parties having taken preliminary pleas, they consented to having these pleas resolved on the basis of written submissions and without the need for a hearing, as is permitted by Rule 49 of our Rules. The ensuing submissions have been full and helpful, the applicants’ having been prepared by their solicitor, Mr Andrew Murchison, Inverness, and the respondent’s by his brother, the said Mr Alistair Philp. We need not set out the submissions at length; their substance will be sufficiently clear from the following discussion. Although stated to be one to competency, we think the respondent’s first plea-in-law is really to relevancy and we will treat it as such. As is customary when dealing with competing preliminary pleas we start by looking at the applicants’ position.

[7] The applicants’ principal case is that consent to the renunciation and reletting of croft 5, or at all events the grazing right pertaining thereto, was required because the relationship between the owner of land comprising common grazings to which the Crofters (Scotland) Act 1993 (hereinafter referred to as “the 1993 Act” or “the Act”) applies and a crofter holding a right or rights in that common grazings is one of landlord and tenant.

[8] In advancing that position the applicants’ agents have had to contend with two Full Court cases strongly founded upon by the respondent. These are Crofters Commission v Arran Ltd 1996 SLCR 103and Crofters Commission v The Scottish Ministers 2001 SLCR 82in the former of which, particularly, the Full Court conducted a very full and careful analysis of the nature of common grazings the result of which may be thought to be against the present applicants.

[9] In defending their position the applicants’ agent takes as his starting point what was said by the Full Court in MacQueen v Wills and Others (RN SLC/63/07; decision of 15 April 2009) at paragraph [38] to the effect that crofting is fundamentally a relationship of landlord and tenant and that a pertinential right attaching to a croft has to derive from the landlord.

[10] Of the Arran case he says that the conclusion of the Court at page 137, that the expression “share in common grazings” is not limited to some form of tenancy of the land itself or to rights in, as opposed to over, the land, is not inconsistent with his own analysis because the Court “appears to accept … that common grazing rights do include ‘some form of tenancy’ of the land itself or right in land.”

[11] Of the Scottish Ministers case Mr Murchison says that in so far as it is relied upon by the respondent “to suggest that a common grazing right is automatically and always held in the nature of a servitude right of property (and never as a tenancy right)” he disagrees and argues that such a view is at odds with the decision of the Full Court in Trustees for the Proprietors of Halistra Common Grazings v Lambert 1997 S.L.T. (Land Ct.) 7 certain passages from which were quoted with apparent approval in the Arran case at pages 136—137 following upon which the Court (in Arran) said of rights in common grazing: “They are rights which may be constituted in various ways. They are part of the croft tenancy as rights of grazing”. Particular reference is made by Mr Murchison to the Court’s analysis in Halistra at page 11A-B where the Court refers to the crofters losing their “tenanted grazing rights” when they became owner-occupiers of their crofts and to “the grazing rights which they enjoyed as tenants”.

[12] In our view the applicants’ argument on this point is misconceived. It proceeds, in our view, upon a misunderstanding of what the Full Court was saying in the Arran Ltd case. We expand on that below but first we comment on how and where rights in common grazings fit into statutory framework of the 1993 Act.

[13] Although socio-economically the term would now also be used to include an owner-occupier, for most legal purposes a crofter is, and always has been, a tenant. What he is tenant of is, of course, his croft: sec 3(3) of the 1993 Act says simply “In this Act “crofter” means the tenant of a croft”. The Act makes no provision for a crofter being, separately from his croft, the tenant of common grazings but, rather, sec 3(4)(a) provides that “any right in pasture or grazing land held or to be held by the tenant of a croft, whether alone or in common with others … shall be deemed to form part of the croft”.

[14] It is clear, therefore, that, however the rights came to be constituted, by virtue of the sec 3(4)(a) they are to be regarded as part of the croft. It should also be noted that what sec 3 is dealing with is the definition of “croft” and, as part of that, “crofter”. Accordingly where something is deemed to be part of a croft in terms of that sec 3(4) it will continue to be part of that croft until that status is terminated by one of the limited number of ways in which, in terms of the Act, that can be done. (One of these ways is resumption under sec 20 and in that regard although sec 20(4) talks of resumption of land from common grazings and the Court grants orders in these terms, what is truly being resumed is the crofters’ grazing rights over that land; the land is not being resumed from a tenancy, rather the rights to graze over it are being resumed from the tenancy of the individual crofts).

[15] Various consequences flow from rights in common grazings being deemed to be part of a croft. One is that when the tenancy of a croft is assigned or, following upon vacancy, relet, that tenancy will include the whole rights formerly comprised in the croft, including the rights in the common grazings, without need for these to be dealt with separately.

[16] Another is that the crofter enjoys the same security of tenure quoad his rights in the common grazings as he does in the rest of the croft. A consequence of that in turn is that his rights in the common grazings are good against singular successors in the ownership of the common grazings; something which the applicants’ agents do not dispute.

[17] The statutory position so far as rights in common grazings are concerned seems, therefore, to be that these rights are held from the landlord of the croft but enforceable against the owners for the time being of the land comprised in the common grazings, whomsoever they may be.

[18] Turning from the general to the particular, we are not told anything in the present case which would take it out of the ordinary. Nothing is said about how or when the Avernish Common Grazings were formed, who owned the land at the time, or how the grazing rights were created. It is not said that it is anything other than a typical common grazings to which the 1993 Act applies. In particular the applicants do not aver that there was a separate letting of the rights in the common grazings; indeed if they did make such averments the situation might not come within the purview of the 1993 Act at all because the grazing rights would not necessarily be pertinents of the crofts: Ross v Graesser 1962 S.C. 66 per Lord President Clyde at page 74 and discussion thereof in Arran Ltd at pages 129-130 and 132.

[19] Absent some such separate arrangement which may or may not come within the purview of the 1993 Act, it seems to us that the holder of rights in common grazings holds these rights as the tenant of his croft holding and not in some other capacity; as we put it in MacQueen v Wills supra (at para [39])the only “tenurial nexus” which a crofter has is with his landlord, meaning by that the owner of the inbye land of his croft (we come to the more sophisticated definition contained in sec 61(1) of the 1993 Act below).

[20] That seems to us to be what the Full Court was saying in Crofters Commission v Arran Limited for example at page 135 where the Court has been discussing certain provisions in crofting legislation which may, taken alone, point to a concept of the crofter as tenant of the grazings and goes on to say of these provisions:-

“However we consider that the terminology used can be explained in part by the fact that the interest of the graziers in the grazing ground was as tenants of their crofts. The rights in the grazing were certainly as tenants of heritable property, their crofts, of which the grazing rights were a pertinent. We also note that the term landlord is defined by section 61 in relation to a croft as including a person entitled ‘to take possession of the croft’.” (Emphasis added)

[21] It is, in our view, in that sense that the use of the terms “tenanted grazing rights” and “grazing rights which they enjoyed as tenants” in the Halistra case are to be understood: the crofters concerned held the rights as tenants but as tenants of their crofts and not of the common grazings.

[22] It is true that in common crofting parlance landowners of common grazings are often referred to as landlords but that, we think, has come about simply because in the majority of cases the landlord of the inbye crofts and owner of the land comprising the common grazings are one and the same person. In that connection the following passage from the Court’s decision in Arran(at page 124), giving a historical perspective, is of interest:-

“Plainly crofters were tenants of their holdings. The landlord of these holdings would normally be the owner of land used as grazings. They obtained their rights in the grazings in virtue of some tenancy agreement. However that is consistent with the grazing rights being a recognised pertinent of their own holding. Our understanding of the pattern of croft holding at that time was that the only rent paid would be for the individual holding with the value of the rights in the grazings taken into account. That too is consistent with the share in common grazings being recognised as a right to graze; part of the pertinents of the croft.

We have found nothing in the reports or Institutional Writers prior to the Crofters Common Grazings Regulation Act 1891 and nothing in our understanding of the history of crofting up to that time, to suggest that common grazings were ever thought of as regulated by tenancy agreements independent of the individual holdings.”

[23] That analysis also corresponds with the modern reality, where no one, to our knowledge, regards rights in common grazings to which the 1993 Act applies as a separate tenancy independent of the crofts to which they relate. That finds its outworking in practical ways such as the practice of this court when fixing fair rents under sec 6(3) of the Act to consider any right in common grazings as one element in the fixing of an overall croft rent. And we are not aware that it is practice for crofters who find themselves in the situation of the Avernish crofters to pay rent to more than one landlord. Certainly it is not averred that that is the practice in Avernish itself.

[24] In terms of sec 61(1) the landlord of a croft is defined as “any person for the time being entitled to receive the rents and profits, or to take possession of, the croft”. Where what we have called “the inbye land” is owned by more than one person that would, of course, lead to a plurality of landlords but the fact that the land comprising the common grazings is owned by a person or persons other than the owner of the inbye land would not. The applicants in the present case are not in our view persons who are entitled to receive the rents and profits of the Avernish crofts nor take possession of them. The position of the owner of common grazings to which the 1993 Act applies is, rather, that of a person whose land is burdened with the grazing rights.

[25] To the extent that the applicants’ argument is that the crofters are tenants not of the land in the applicants’ ownership but of a grazing right over it, it seems to us to be inconsistent with the provisions of sec 3(4) which seems to us to integrate those rights into the leases of their crofts.

[26] The applicants also rely on the situation which arises after apportionment of a share in common grazings as showing that the relationship is one of landlord and tenant. However, in Arran Ltd (at page 129) the Full Court interpreted sec 3(5) of the Crofters (Scotland) Act 1955, the predecessor of sec 3(4) of the 1993 Act, as recognising that “apportionment brings about a change in the nature of the crofters’ relationship with the common grazing area. After apportionment it is the “the land” which is deemed to form part of the croft: before apportionment it is “the right in the land”. That being so we think that no assistance is to be derived from the post-apportionment situation when one is trying to analyse the pre-apportionment relationship of grazier and land owner.

[27] We therefore reject the applicants’ case in so far as based upon the existence of a landlord and tenant relationship between themselves and the shareholders in the Avernish Common Grazings.

[28] The applicants also argue that if, contrary to their main submission, the relationship between grazier and landowner of common grazings is not one of landlord and tenant, Lochalsh Estates Ltd could not in any event validly relet the grazing right without the consent of Mrs West and Mrs Castle. That is because, it is said, there needs to be a legal relationship or nexus between the owner of the land and the party purporting to grant rights over it entitling the latter to do so. More simply the right to graze over Mrs West’s and Mrs Castle’s land was not Lochalsh Estates’ to grant: nemo dat quod non habet.

[29] That is in our view a wrong analysis of the situation. The correct starting point is in our view Mrs Fraser’s time as tenant. It is not disputed that she had a grazing right over the land now owned by the applicants. On our foregoing analysis when she renounced the tenancy of the croft that right did not die, it continued to adhere to the tenancy of croft 5 and was available for reletting as part of that croft. At the time of the reletting Lochalsh Estates Ltd did not themselves hold a right to graze over what was then Mrs West’s and Mrs Castle’s land by virtue of being landlords of croft 5. The grazing right was already part of the rights effeiring to the tenancy of croft 5. Although at that time not in exercise by anyone, these rights continued to be available to a new tenant. When a new tenant was found it was not a question of Lochalsh Estates not being entitled to grant the grazing right but rather one of their not being entitled to withhold it: it was their’s neither to grant nor withhold – it was irrevocably, save for the exercise of the available statutory procedures, a right attached to the tenancy of croft 5. Accordingly this part of the applicants’ case also fails.

[30] The result is that we sustain the first plea-in-law for the respondent, although we treat it as one to relevancy rather than competency, and repel that of the applicants. It is not necessary for us, therefore, to consider the respondent’s averments of a case on personal bar. The application is dismissed.

[31] If, as we understand, it is the respondent’s application for an apportionment which has triggered this application, although sec 52(4) appears to confer no locus standi on the landowner, it will, of course, be open to the applicants to make representations to the Crofters Commission as part of that procedure.

Expenses

[32] Although success has been clear-cut, we have followed our usual practice of allowing 21 days for motions on expenses.

For applicants: Messrs Murchison Law, Solicitors, Inverness

For respondent: Mr A Philp