THE COURT

(Lord McGhie, Mr D J Houston)

MACDONALD v JOHANSEN and ANOTHER

(Application RN SLC 102/01 – Order of 29 June 2010)

CROFTING – ACQUISITION BY TENANT – RIGHT TO BUY –ORDER FINDING TENANT ENTITLED TO ACQUIRE BUT CONTINUING FOR FURTHER PROCEDURE – DELAY – MORE THAN TWO YEARS ELAPSING – WHETHER ORDER CEASED TO HAVE EFFECT – CROFTERS (SCOTLAND) ACT 2003 SEC 17(1)

The Court pronounced an Order in 2003 making a finding that certain subjects were crofts and authorising the applicant to acquire these subjects. Following normal practice after a dispute on entitlement, the Court reserved right to each party to apply to the Court for a determination of the consideration payable and conditions relating to the conveyance rights. The respondent appealed by way of special case but this was eventually abandoned. In April 2008, the applicant returned to the Court by way of Minute seeking a further Order in terms of the initial crave. The respondent opposed the Minute contending that in terms of section 17 the original order had ceased to have effect.

HELD that section 17 applied to an order authorising acquisition even when the Court had expressly continued the case and that the Court had no jurisdiction to extend the time allowed

The note appended to the Court’s order is as follows:

[1] The debate raised two issues of construction of section 17(1) of the Crofters (Scotland) Act 1993 and it is unnecessary to say much about the factual background. The applicant had sought an Order in terms of section 13. After a proof the Court pronounced an Order on 3 July 2003 making a finding that certain subjects were crofts and authorising the applicant to acquire these subjects. As is the normal practice of the Court when the substantive issue appears to have been one of entitlement, the Order reserved the right to each party to apply to the Court for a determination of the consideration payable and the conditions of the conveyance and lease back of the shooting rights. The respondent sought to challenge the decision by way of special case. This was abandoned. It was accepted by the respondents that 1 March 2005, the date when that procedure was abandoned, should be treated as the effective date of our Order for the purposes of the debate. It was not contended by the applicant that any later date would be relevant although mention was made of expenses being determined by order of 24 October 2005.

[2] At the end of April 2008, the applicant returned to the Court by way of Minute seeking a further Order in terms of the initial crave. By that time the land had been sold and it is convenient for us to refer to the new owner as “the respondent”. The original owner, the first respondent, took no part in the debate. It was not suggested that, for present purposes, anything of substance turned on the change, although it was recognised that it might be one of the matters to be considered if we came to exercise a discretion under section 17. The respondent opposed the Minute contending that in terms of section 17 the original order had ceased to have effect.

[3] At debate in Edinburgh on 6 May 2010 the applicant was represented by Ms C Coutts, advocate, and the respondent by Mr C R K Sandison, advocate.

Authorities

Davie v Countess of Sutherland’s Trustees 2005 SLCR 137
Galbraith v Bray’s Trs. 1978 SLT(Land Ct) 3
Gatty v Maclaine 2001 SC (HL) 1
Gilmour v Master of Lovat 1979 SLT (Land Ct) 2
Grant v Sykes 1983 SLCR 65
Waugh v Thrumster Estate Ltd SLC/156/05 (28 July 2009)

Statutes

Crofters (Scotland) Act 1993
Human Rights Act 1998

The following provisions of the 1993 Act were referred to in debate:

Section 13(1). The Land Court, on an application made to it under section 12(1) of this Act, may make an order—

a. authorising the crofter to acquire such croft land as may be specified in the order, subject to such terms and conditions as, failing agreement with the landlord, may be so specified, and requiring the landlord to convey the land to the crofter or his nominee in accordance with such terms and conditions; or

b. refusing the application.

Section 17(1). An order of the Land Court under section 13(1)(a) or 15(1) of this Act shall have effect for a period of 2 years from the date of intimation of the order or for such other period as may at any time be agreed to in writing by the crofter or, as the case may be, the cottar and the landlord or as may be determined by the Land Court on the application of either party.

Section 17(2). Where an order has been made by the Land Court under the said section 13(1)(a) or 15(1) in relation to croft land or the site of the dwelling-house on or pertaining to a croft or under the said section 15(1) in relation to the site of the dwelling-house on or pertaining to the subject of a cottar, then, so long as the order has effect—

c. the crofter shall not be entitled under section 30(1)of this Act to compensation for any permanent improvement made on the croft land or site; and

d. the landlord of the croft shall not be entitled under section 30(6) of this Act to recover from the crofter compensation for any deterioration of, or damage to, any fixed equipment provided by the landlord in respect of the croft land or site; or

e. the cottar shall not be entitled under section 36(1) of this Act to compensation for any permanent improvement made on the site,

being compensation to which the crofter and the landlord or, as the case may be, the cottar would be entitled but for this subsection.

Submissions

[4] Both parties presented full written submissions. For the respondent, Mr Sandison, presented a helpful step by step analysis of the statutory provisions. Ms Coutts made submissions as to the effect of the provisions and provided detail of the relevant circumstances of the present case. It became plain that there were two essential questions. Was the Order authorising purchase an order which was caught by the provisions of section 17(1) and, if so, was the power given to the Court under these provisions one which could only be invoked within the initial two year period?

[5] Although the particular facts and circumstances are irrelevant to the question of construction, they do provide an example of a type of situation which Parliament can be taken to have had in mind. It is clear that following the end of the appeal process, the applicant was actively pressing the landlord for progress on a regular basis. The landlord had plans for the estate and on the face of the written material available to us, it can be seen that there were continuing discussions about the landlord’s proposals. There were difficulties over access to various small areas of untenanted land surrounded by the crofts. When it appeared that no real progress was being made, the present Minute was lodged. Subsequently, when there was word of the land being sold, an abortive attempt at interdict was made by the applicant. In course of the interdict proceedings the first respondent’s solicitors wrote to confirm that the respondent was aware of the terms of the Order of 3 July and would abide by its terms. Early in 2010 the landlord presented various applications for resumption which, in their effect, would cover virtually all the croft land. Put shortly, this was not a case where there was any actual uncertainty as to the crofter’s intention to exercise his right to purchase.

Was the Order caught by section 17(1)?

[6] Mr Sandison submitted that it was clear that the decision of the Court of 3 July 2003 was an order. That was what it purported to be. It was in no sense conditional or provisional. It was an order which, in its own terms and on its face, without more, authorised the acquisition of the croft. It plainly was an order “under section 13(1)(a)”. It fell squarely within the terms of section 17(1). It was important, he said, to note that the Act in the proviso to section 14(2), itself distinguished between an “order” and a “final order” under section 13(1).

[7] For the applicant it was contended that the order should be regarded as a “part order”. He had asked for an order under section 13(1)(a) in terms which made it clear that the order sought covered all the heads set out in that provision. No such order had yet been made. It was submitted that the essential feature of section 13(1) was the requirement to convey. That was said to be the enforceable part. The Court’s order of 3 July should properly be seen as simply a finding. It did not order anything to be done. What was required for the purposes of section 17 was an enforceable order. The Court had made a reservation which allowed both parties to come back to the Court. The reservation was a benefit to both because the conditions and the rent were important matters to be determined.

Discussion of the first issue

[8] Although the debate did not attempt to analyse the different parts of our Order of 3 July, there is an obvious distinction between the finding of the Court as to the status of certain subjects as crofts and the authorisation of acquisition. It is clear that the latter was an order made under section 13(1)(a). Section 17 provides that “An order under section 13(1)(a) shall have effect for two years”. It was not disputed that the plain meaning of such a provision was that the order ceased to have effect after two years.

[9] The argument that section 17 was only intended to apply to certain types of orders made under section 13 was based implicitly on the proposition that the intention of Parliament was clearly to that effect. We are satisfied that this matter can be approached broadly on the basis that if the intention to limit the application of section 17 to orders which exhausted the matters set out in section 13(1) was, indeed, clear we would be entitled to ignore the ordinary English sense of the language used. But identification of the intention of Parliament, in this context, requires identification of the purpose behind the provision.

[10] There is an obvious difference between an order authorising the crofter to acquire specified land and an order requiring the landlord to convey such land. But, it is far from clear that the purpose served by section 17 is affected by such difference. Viewed broadly, section 13 can be described as providing a tenant with a formal process to enable him to acquire his croft from an unwilling landlord. The final stage in that process is for the landlord to apply to the Court for an order authorising the Principal Clerk to execute the conveyance. Such a conveyance is to have the like force and effect as if it had been executed by the landlord. An order under section 16 is not caught by section 17.

[11] The substantive purpose of section 17 appears to have been to deal with a tenant who has put the formal process in place but has not brought it to a conclusion within two years. We note, for example, that subsection (2) makes certain specific provisions in relation to improvements and fixed equipment which apply only so long as the order under section 13(1)(a) – or section (15)(1) – “has effect”. After two years the landlord is no longer to have this process hanging over him. Viewed in that light, although there is, no doubt, a distinction between an order authorising acquisition and one which also orders the landlord to convey the subjects, they can both be seen to be no more than stages on the way to obtaining a conveyance. The distinction sought to be drawn by Ms Coutts between an order which was effectively just a finding and one which was enforceable, is not a distinction of substance in relation to any identified purpose.

[12] A time limit running from the date of an order authorising acquisition might, at first glance, be thought to give a shorter period than two years by comparison with an order requiring the landlord to convey because, of course, more requires to be done following the order authorising acquisition. But it is clear that this is not an accurate view of the matter. If, following an order authorising acquisition, the applicant takes the next step of obtaining an order to convey, the two year period will be effectively extended to run from the date of that order. The crofter has, in effect, four years from the date of an order authorising acquisition to bring matters formally to a conclusion. This is consistent with the idea that as long as he is taking formal steps to enforce his right, there is no uncertainty.

[13] In short, we see no purpose served by a two year limit on an order for conveyance which is not equally served by such a limit on the order authorising acquisition. In these circumstances, we can find no justification for reading section 17 as doing other than covering any order made under section 13(1) as it bears to do.

Can the Court extend the period after two years?

[14] It may be noted at the outset that it was accepted by the parties that if the Court did have a discretion under section 17 in the present case, it would be appropriate to defer exercise until hearing evidence of any changes of circumstances and of the events which followed the granting of the order.

[15] For the respondent it was submitted that, as a matter of principle, it was not open to the Court to create a new period of effectiveness of the acquisition order after it had ceased to have effect. This was supported by reference to the language of section 17(1) and by reference to possible practical considerations. The Act provided a specified period. The Court could determine an alternative period but where it did not do so, the statutory period remained and should be given full effect. It was obvious that where parties were agreed to extend the period there was no need for a fixed limit. It was quite another matter for a Court to revive a lapsed order. The law of heritable property was a paradigm area of the law in which there was the greatest possible need for legal certainty. During the two year period, parties had to restrict their plans to comply with the order. After that period, the rights in and to the croft in question simply reverted to the status quo ante. It was argued that it could not have been the intention of the legislature that the person who had obtained the original acquisition order should be permitted to let it simply lie without action to enforce or extend it. To allow such party to come back at the discretion of the Court by a time limited only by the long negative prescription would wholly undermine the certainty of each party’s position.

[16] Counsel submitted that the idea of an order having retrospective effect – to run back to the expiry of the two years – was an alarming prospect in relation to property rights. However, there was no authority under the section for two periods. He also made the point that it was misleading to talk of parties both having a right to go back to the Court under the reservation. The landlord could not go back to cancel the order. Only the tenant could attempt to enforce it. That was why it was necessary to have provisions such as those of section 17.

[17] Mr Sandison contended that the construction of the section was constrained by the provisions of section 3 of the Human Rights Act 1998 and the provisions of Article 1 of the First Protocol to the European Convention on Human Rights (“ECHR”). The right of a landlord to seek to resume part of a croft was a valuable right: Davie v Sutherland’s Trustees. It was a right defeated by the crofter’s right to buy. The landlord’s rights were restored when an order under section 13 ceased to have validity. He was back in the pool of landowners whose tenants were not attempting to exercise a right to buy. A fresh application should be required. This would give the landlord all the original rights he had to challenge the crofter’s right. In particular he had the right to rely on the statutory defences set out in section 13(2). The power of the Court to protect the landlord’s rights by exercise of a discretion was not sufficient. A landlord was entitled to the protection prescribed by law and not merely to discretionary protection. If the Court could reduce the landlord’s rights by exercise of an unqualified discretionary power, this would be a breach of Article 1. We understood Mr Sandison to suggest that this was a trite proposition of law under the ECHR jurisprudence but no authority for it was cited to us and we made it clear that we could not accept it as self-evident. Mr Sandison elaborated the proposition by contending that one important consequence was that if a landlord wished to challenge an adverse finding by the Court in terms of section 13(2) he could do so by appeal under reference to the statutory criteria. If he wished to challenge the exercise of discretion under section 17(1) the challenge would be on different principles – referred to for convenience as the Wednesbury principles. This, he said, fatally undermined the contention that the discretion gave adequate protection. Property rights could not be left to the discretion of a Court without statutory criteria.

[18] For the applicant it was contended that the reservation in the order took effect instead of section 17. The Court had reserved rights to both parties. The reservation was not caught by section 17 and could not simply disappear. However, she accepted that the reservation could not be treated as equivalent to setting a period within the meaning of section 17. It was not an order made by the Court under that section, but it superseded that section until matters were brought to conclusion.

[19] Counsel made reference to Gilmour v Master of Lovat and Galbraith v Bray’s Trustees as examples of cases where there had been a reservation. She also referred to Grant v Sykes. She accepted that in none of these cases could it be said that the question of any time limit on the Court’s power had been in issue. However, the point had been expressly considered in Waugh v Thrumster Estate Ltd and she relied on the decision in that case.

[20] After some discussion of the terms of the proposed undertaking by the landlord offered in the context of interdict proceedings in the Sheriff Court, Ms Coutts agreed that while it might be a factor relevant to an exercise of discretion it had no bearing on the debate issue. She accepted that it had, at the time, been rejected by the applicant as “meaningless and unenforceable”. It was agreed that there was nothing else that might have been regarded as an agreement between the crofter and the landlord in terms of section 17(1) and that no question of personal bar arose.

[21] The current Minute had been presented in reliance on the reservation in the order of 3 July. But, if the Court did not accept this as sufficient to override the provisions of section 17, it was submitted that the Court could, and should, now exercise its discretionary power to extend the period in terms of that section. Ms Coutts contended that such a motion could be moved at any time. There was nothing in the terms of the section to restrict it in the way contended for by the respondent. The problem of uncertainty was exaggerated. There was no real uncertainty. The effect of the reservation was clear and parties could come back at any time to seek clarification. If nothing had changed, there would be no point in requiring a fresh application. If matters had changed the Court could take account of the change. She did not accept the proposition that such a discretionary right gave rise to any breach of Article 1 of the First Protocol. She was aware of no authority to that effect. She did not require to address the detail of Article 1. It was, she said, misleading to talk of the respondents as now being part of a pool of landowners free of section 13. As the substantive rights of the tenant had been determined, the pool they were in was of persons whose rights were subject to the provisions of section 17 and the discretionary power of the Court.

[22] She contrasted the provisions of section 17(1) with those of section 10(2). Where Parliament meant something to be done within a particular period it could, and would, say so. There would be no need for creation of periods of effectiveness. If the Court made an order under section 17 its effect would simply be to extend the period of two years. But the point was academic. Any change of circumstances could be taken into account. The discretion gave ample protection to both parties. She stressed that substantive issues had been decided by the Court in making the order of 3 July. There would be no purpose in having to start again.

Discussion of the second issue

[23] We are satisfied that the terms of the reservation in the Order of 3 July 2003 have no bearing on the issues before us. It was agreed that they were not capable of being treated as equivalent to an order fixing an alternative period in terms of section 17(1). The suggestion that they superseded the provisions of that section, in some way, was not persuasive. Accordingly, the Minute will only be competent if we are able to pronounce an order under section 17 to allow the authorisation to purchase to remain effective.

[24] The intention of Parliament in section 17(1) can be described in various ways but a main purpose must have been to avoid the uncertainty as to rights in heritable property which might arise if a crofter obtained an order to acquire his croft and did not enforce it. Leaving a right to apply to the Court to fix a period at any time would not avoid that uncertainty but might be thought to provide a practical method of controlling it. There are balancing considerations and identification of Parliament’s intention cannot be resolved on a simple broad brush approach. We need to consider the precise terms of the provision and the practical implications.

[25] One important factor is the express provision in relation to agreements that they could have effect “at any time”. This demonstrates that Parliament was aware of the problem. It was recognised that there was a distinction to be drawn between acts done before and after expiry of the normal period. We consider that on a fair reading of the provision, following conventional grammatical rules, it is clear that the reference to “at any time” is limited in its application to agreement in writing by crofter, or cottar, and the landlord. It does not apply to the provision relating to the Court which is not qualified in any such way.

[26] Viewing the section in broad terms as intended to identify a stage when the order should cease to be effective, Parliament might reasonably be assumed to have proceeded on the view that if an alternative period was not fixed before the expiry of the specified period it would simply be too late to do it afterwards. The order would have ceased to have effect. There is no mention of any power to revive it. Parliament might also have relied on the well known guide to construction that where something is expressly included in one context but no mention is made of it in a closely related and similar context, it may be assumed that the intention was to exclude it from the latter.

[27] These are not strong pointers but, in the context of an assumption that Parliament was alive to the problem, they are important because they both point in the same direction and there is nothing in the terms of section 17(1) itself which can be relied on as pointing clearly in the opposite way.

[28] The substantive provision, in so far as it relates to the power of the Court, is that the order “shall have effect for a period of 2 years from the date of intimation or for such other period as may be determined by the Land Court on the application of either party”. On the face of it the section is attempting to define the time during which the order is to be effective. The corollary is that it identifies the point when the order is to be taken to cease to have effect. That is to be at the expiry either of the period specified by the Act or a period nominated by the Court. The applicant’s argument requires the provision to be understood as meaning that if the order has ceased to have effect the Court is being given a power to restore its effect. We are satisfied that there is a clear distinction between a power to identify a period during which an order is to have effect and a power to restore an order which has ceased to have effect. We find nothing in the section to point to the latter intention.

[29] We recognise that in Waugh the Court placed considerable weight on the obvious inference that in absence of any express limitation on time it was intended that the application could be made at any time. The Court also had in mind that it was possible to see reasons why Parliament might have intended to leave the matter open. The Court thought it might be hard on a crofter in some circumstances to have to start all over again. The Court concluded that an application under section 17(1) did not require to be made before the two year period had expired. This view was not essential to the decision in the case but it was a conclusion arrived at after hearing and considering detailed submissions. Although we are not formally bound by the terms of such a prior expression of opinion by the Court we would not lightly depart from a conclusion expressed after hearing submissions. However, we do note that the Court expressly described the question as a “more difficult” one and did go out of its way to make the point that the conclusion was not necessary to the decision: para [75]. This is important because consideration of the detail of the practical consequences of the alternative courses of seeking to persuade the Court to exercise a discretion as opposed to making a fresh application, demonstrate that one is not necessarily any “harder” for a crofter than the other.

[30] In the present case Mr Sandison placed considerable stress on Article 1 of the First Protocol and it is necessary to deal with that issue. He suggested that a decision to determine that the order should continue to have effect after it had ceased to have effect would be a positive interference with potentially valuable property rights at the discretion of the Court and without any form of safeguard by way of criteria, compensation, or otherwise. Although reference had been made to ECHR in the Waugh case,he had been the pleader and he modestly suggested that the argument might not have been as fully explored in that case as it could have been. In any event, it appeared to play no part in the reasoning of the Court.

[31] We accept that, on the expiry of the two year period without any application to the Court for extension having been made, the authorisation given to the crofter to acquire the croft ceased to have effect. At that point, the landlord’s rights as owner “revived”, untrammelled by the effects of the crofter’s authorisation to purchase. Such rights included the right to seek to resume part of the subjects in terms of section 20. That is potentially a valuable right. It might prove, in any particular case, to have little value if the Court decided that the crofter’s right to acquire the subjects should take priority over the resumption. However, section 17 was plainly intended to deal with interests in property. Any decision by the Court after expiry of the original period would be likely to have an adverse effect on the landlord’s property rights as they stood at the expiry of the two year period provided by the Act. We accordingly can accept that Article 1 of the First Protocol is engaged in these circumstances. However, we are not prepared to go as far as to hold that the existence of a discretionary power in the Court would necessarily be a breach of that Article. Determination of breach involves a balancing exercise. The submissions we heard were not sufficient to persuade us that breach was a necessary consequence.

[32] The context is important. The rights which revived on expiry of the two year period were, on any view, rights subject to a crofter’s rights under section 12 and the related provisions. If section 17 did fall to be read as giving the Court power to fix a further period, then the rights which revived would have to be seen as rights which were potentially subject to that discretion. The discretion may be viewed as essentially a procedural one where the crofter has, by due Court process, established a right to acquire specific subjects. The Court has simply to decide whether, by reason of any change of circumstances, the crofter should be forced to repeat that process. In the exercise of any discretion the Court would be entitled, and indeed obliged, to consider the statutory grounds of objection under section 13(2). They are plainly relevant. If, in light of any change of circumstances, it appeared that these grounds were now made out, the Court would be bound to have regard to them. If there was no such change there would be no purpose in refusing to give effect to the previous decision and forcing the crofter to prove matters afresh. It may be assumed that Parliament had in mind such practical matters. In that context, it would have been entirely understandable if Parliament had seen fit to leave to the discretion of the Court the question of whether such rehearing was, or was not, to be required.

[33] Mr Sandison suggested that the difference between an appeal against any findings of the Court in relation to the statutory defences provided by section 13(2) and the limited scope for review of the exercise of a discretion was fatal to the applicant’s argument. Both could proceed by way of special case but different grounds would apply, depending on the type of challenge open. The grounds for challenge of the exercise of a discretion were more limited that those for challenge of a substantive decision applying a statutory test. However, we are not satisfied that the more limited scope for challenge of a discretion in itself leads to a breach of Article 1. For example, the conflict between the exercise by a crofter of a right to buy and a landlord’s attempt to resume is one which inevitably requires exercise of a discretion to determine which should have priority in any particular circumstances.

[34] That said however, the submissions made under reference to ECHR did cast a powerful light on the practical effects of the distinction between determining when an order should cease to have effect and deciding whether an order which had ceased to have effect should be restored to full vigour. Although, we accept Ms Coutt’s submission that the submission for the respondent created something of a mountain out of a molehill, we are also of the view that there is a distinct molehill which cannot simply be ignored. Put shortly, we are not satisfied that the task of persuading the Court to exercise a discretion under section 17(1) would necessarily be any easier than presenting a fresh application. The task facing the Court might well be more difficult because the exercise of a discretion may well be a more complex one than applying the relevant statutory provisions direct.

[35] It seems clear that the Court in Waugh was not asked to make a comparison of the practical consequences of a requirement to persuade the Court to exercise a discretion instead of making a fresh start. It seems that case would have been a straightforward one, had there been a relevant discretion, as the application was actually made within two years of the order and there was no suggestion of any relevant change of circumstances. But, when construing the Act, we must also have regard to more complex cases. It must be assumed that the landlord has substantive grounds for opposition otherwise matters would normally be expected to be resolved by agreement. It can be assumed that Parliament would have considered the practical implications and it is, accordingly, relevant to have regard to these implications when seeking to identify the intention of the statutory provisions.

[36] If the crofter’s right has ceased to be effective he can simply ask the Court to pronounce a fresh order. The Court will have to consider any objection in terms of section 13(2). It will have to consider that matter in light of circumstances as established at the time of its consideration and without regard to circumstances at the time of the original order. If the Court was required to make what would be effectively the same decision in the context of deciding whether to revalidate the original order, it would be likely to be invited to consider, not only the new circumstances, but the old circumstances and to consider the history of any changes. Parties would not know which circumstances would prove to be most telling, in relation to the exercise of a discretion, in any particular case.

[37] The question of resumption might seem to raise different considerations. If an order was made when there was no question of resumption, it might seem hard if the crofter was now facing a competition between his right to buy and the landlord’s right to resume. But, if that has arisen because the original order has ceased to have effect, the Court would, in any event, have to consider all the circumstances before it could exercise any discretion to allow the original order to continue to be effective.

[38] There is always a tension between a crofter’s right to buy and a landlord’s right to resume. Although the general practice of the Court has been to deal with these matters by reference to the chronological order in which they were raised, this is an exercise of discretion by the Court. The whole circumstances will always have to be considered. In a case such as the present, the fact that the effect of section 17 might be to force the tenant to start afresh would not prevent us from giving full weight to the actual chronology and the landlord’s awareness of the tenant’s intentions. That will be as important as the dates of formal applications to the Court.

[39] If the Court is to exercise a discretion it is almost inevitable that parties will invite us to take account of their conduct since the time of the original order. Crofters who had been in active negotiation with their landlord would reasonably expect the Court to view their position more favourably than if they had simply allowed the matter to slip from attention. Although that aspect of the matter might seem clear in the present case, the Act cannot be construed by reference to the particular circumstances of this case. There might often be a real dispute over the reasons for allowing the order to lose effect.

[40] We must construe the Act on the basis that its terms are known to the parties. Any crofter who has had to resort to the statutory procedure must be taken to be aware of all the relevant statutory provisions. This consideration does not, of itself, provide direct assistance to construction of ambiguous provisions. But it does mean that, in construing the Act, we need not be over concerned about the hypothetical consequences for unsuspecting crofters. If the Act limits the right to apply to the Court to one which is only available before the original order has ceased to become effective, crofters can apply to the Court in time to have a period fixed which will give it continuing effect. They know that they have two years to make effective their right. On any view of the Act, they cannot be sure of having a new period fixed after the normal period has elapsed.

[41] In short, although the Court in Waugh was plainly influenced by the consideration that it might be hard if a crofter, misled by his landlord, had to start all over again, we consider that more detailed consideration of the potential practical circumstances suggests that this consideration was much less formidable than it sounded. As the present case shows, an application under section 17(1) may well present a significant burden on the crofter. The parties agreed that if there was a discretion it would be necessary to have a proof to determine whether it should be exercised. It cannot be assumed that the exercise of examining all the relevant factors would necessarily lead the Court to exercise a discretion in favour of the crofter. There clearly could be a good deal of duplication of time and expense if the Court declined to fix a new period. The crofter might end up having to present much the same material in the context of a fresh application under section 13(1). The landlord might have to present much the same material in relation to his applications for resumption. Parliament might well have thought it simpler to leave the applicant to start again once any appointed period expired. We do not accept that the possibility of adverse consequences for a crofter, in some contexts, is a consideration which provides any assistance on the issue of construction.

[42] We should note for completeness that Waugh involved a question of whether a distinction had to be made between the date of an application under section 17(1) and the date of the Court’s determination in respect of such application. We did not hear submissions on that issue because the present application was itself made after the expiry of the statutory two year period. It may be said that all statutory provisions relating to applications to a court must be assumed to be intended to be applied in accordance with the practicalities of court processes and procedures. Accordingly we would not expect the question to present much difficulty. But, in the present case, we are dealing only with an application to the Court made after the original period had elapsed. We are satisfied that this is not within the intention of section 17(1)

[43] The effect of this conclusion is that, if agreement cannot be reached, the applicant will have to raise a fresh application to enforce any right to purchase. As we have indicated, such burden might be more apparent than real. There are, on any view, outstanding issues related to the terms and conditions of acquisition. The substantive issue of the extent of the crofts was dealt with in the Note attached to the Order of 3 July and was determined by a finding which did not purport to be made under section 13(1)(a). It will continue in effect. The main dispute will be about the landlord’s apparent desire to resume virtually all the croft land.

[44] Although a fresh application will give rise to the familiar conflict between a tenant’s right to buy and a landlord’s right to seek resumption and will give the resumption application an apparent priority in time, it may be said that the Court would have in mind the history of the tenant’s attempts to purchase the land long before any attempt was made by the landlord to resume. At any hearing most of the factors which will have to be canvassed would have been likely to have been relevant had we had to exercise a discretion under section 17. That is not to say that the outcome would necessarily be the same but simply that the procedural burden may not be greater. The issues may well prove to be more straightforward when they have to be addressed directly rather than as factors to be weighed in the exercise of a discretion.

Decision

[45] For reasons discussed above we are satisfied that the Order of 3 July 2003 in so far as authorising the tenant to acquire his crofts has ceased to be effective and that we have no power under section 17(1) to restore it. We accordingly sustain the second respondent’s first preliminary plea and dismiss the Applicant’s minute. We reserve all questions of expenses and allow motions thereon to be lodged within fifteen days.

For the Applicant: Ms C Coutts, Advocate; R W McClurg , Solicitors, Inverness

For the Respondents: Mr C R K Sandison, Advocate; Murchison Law, Solicitors, Inverness