FULL COURT

(Sheriff MacLeod, A Macdonald, J A Smith)

IMRIE v KERRIGAN

(Application RN SLC/11/06 – Order of 30 January 2008)

CROFT – BOUNDARY DISPUTE – AREA OF ONE CROFT PREVIOUSLY DECROFTED – WHETHER PART OF NEIGHBOURING CROFT ERRONEOUSLY DECROFTED ALSO – STATUS OF PLANS FORMING PART OF DECROFTING DIRECTIONS

The applicant sought a determination by the Court as to the boundary between her croft and a neighbouring croft. Part of the neighbouring croft, in the vicinity of the boundary, had previously been decrofted. By reference to a plan forming part of the decrofting direction and having heard evidence and carried out an inspection, the Divisional Court held that the effect of said direction had been to decroft erroneously a very narrow strip of the applicant’s croft also and that the true boundary had historically run through an area which was now decrofted. There was, therefore, now between the two crofts an area which was part of neither, it having been removed from crofting altogether. The Divisional Court therefore fixed the boundary of the applicant’s croft as the edge of the decrofted area. On appeal, the Full Court held that, at all events where it is by reason of ambiguity possible to do so, a decrofting direction should be read as confined to the croft to which it purports to relate since manifestly it was not intended to decroft land on a neighbouring croft and could not in any event competently have done so. Since it was possible to interpret the plan attached to the decrofting direction in this case as relating only to the croft to which it purported to relate the Full Court sustained the appeal but reserved its opinion as to whether, where there was no such ambiguity and the plan forming part of a decrofting direction unmistakably related to land forming part of another croft, any remedy other than reduction of the direction in the Court of Session was available.

The Note appended to the Court’s Order was, so far as relevant to the above, in the following terms:-

Introduction

[1] This is an appeal by the applicant against the decision of a Divisional Court on an application to determine the boundary between crofts 5 and 6 Calbost, South Lochs, Isle of Lewis.

[2] Croft 5 is situated to the north of croft 6 so the boundary between them runs in a generally east-west direction. Although the Divisional Court was asked to determine the whole of that boundary only one part of it was, and continues to be, the subject of serious dispute. That is the western end of the boundary, in the vicinity of the driveway which gives access to the house at number 6 from the public road.

[3] Croft 5 is tenanted by the applicant and croft 6 by the respondent, Mr Kerrigan, but said driveway and house are situated on a feu (using that term as it is commonly understood in the crofting context) of what was formerly part of croft 6. Mr Kerrigan’s title to that area takes the form of a Land Certificate issued on 7 May 2004. In anticipation of that title being granted an application for a decrofting direction was made to the Crofters Commission by the previous tenant of croft 6, Mrs Katie Bell MacLeod, which resulted in a decrofting direction being granted on 7 January 2004. That direction (a copy of which is production 65) is central to the issue at stake in this appeal. An additional area of adjacent ground, the subject of another decrofting application and direction, was “feued” to Mr Kerrigan in 2006 but it is not controversial in this appeal.

[4] What the Divisional Court found, so far as the part of the boundary in controversy is concerned, was that, although it was not possible to say where exactly on the ground the northern edge of the area decrofted in January 2004 was, it included, erroneously, a narrow but indeterminate “wedge”, for want of a better word, of croft 5. In other words the Court found that the boundary as it had existed prior to decrofting was now partly within the decrofted area. On the view that decrofting, even if done erroneously, had the effect of removing the land in question from crofting tenure, and hence from the jurisdiction of this court, the Divisional Court found, in terms of part (Four) of its Order that the boundary of croft 5, in this disputed area, is now that which is represented by the black lines delineating the northern edge of the decrofted area on the plan forming part of production 65. Part (Five) of the Court’s order defines the boundary between the crofts as the Court found it to have been prior to any decrofting, in other words up until 6 January 2004.

Substance and scope of the appeal

[11] On that basis what the appellant seeks, in essence, is to have set aside the finding of the Divisional Court that the present boundary differs from that which obtained at 6th January 2004.

[12] Answers to the appeal have been lodged on behalf of Mr Kerrigan. The position taken in these answers is one of agreement with the appellant’s proposition that no part of croft 5 has been decrofted by virtue of said decrofting direction and indeed the decrofting direction, given that the tenant of croft 6 could never competently have sought decrofting of any part of croft 5, is relied upon as evidence that the boundary between the two crofts was always as stated in part (Four) of the Divisional Court’s Order (i.e. the northern edge of the area delineated on the plan annexed to the decrofting direction). The respondent therefore disagrees with the Divisional Court’s conclusion that the decrofting direction erroneously decrofted part of croft 5 and says that the land in question was in fact part of croft 6. On that basis the respondent submits that part (Five) of the Divisional Court’s Order should be set aside, leaving the boundary of croft 5 both as at 6th January 2004 and now as identified in part (Four) of the Court’s Order. The respondent however makes no submission as to where the western end of that boundary is on the ground. In the event that we agree with the Divisional Court as to part of croft 5 having been erroneously decrofted, the respondent submits that it is incompetent for us to disturb part (Five) of the Divisional Court’s Order as that would amount to reduction of the decrofting direction and reduction is a remedy exclusive to the Court of Session.

[13] The appellant argues that because of considerations such as the scale of the plans involved and the like it was wrong of the Divisional Court to conclude, as it felt obliged to do, that the decrofting encroached on croft 5. In other words she invites us to find that the plan attached to the decrofting direction can be interpreted as being consistent with the boundary being where the Divisional Court found it to have been as at 6th January 2004 in terms of part (Five) of its Order. If it is possible so to understand that plan then, in the appellant’s submission, given that decrofting of part of number 5 could never have been competently intended in an application relating solely to number 6, that is the effect which we must give it.

Discussion and Decision

[33] The question we have to decide is whether the Divisional Court was entitled to conclude that the decrofting direction of 7 January 2007 had the effect of inadvertently decrofting part of croft 5.

[34] Our starting point has to be consideration of the terms of the decrofting direction itself.

[35] It refers only to croft 6 and narrates that the application is for decrofting of the site of the dwellinghouse and garden ground on that croft. An area of 0.092 ha is given for the site but the direction contains no bounding description of that area. Instead reference is made to an attached plan. The scale of that plan is 1:500. That scale, together with the thickness of the delineating lines and the absence of reference to physical features, makes it impossible to identify the boundaries of the decrofted area on the ground.

[36] The result of that direction is, on the face of it, to decroft from croft 6 an area extending to 0.092ha situated at the junction of the east side of the public road and the boundary with croft 5. It does not, on the face of it, have the effect of decrofting any part of croft 5.

[37] The Divisional Court’s problem was, however, where to locate that area on the ground. In order to do so it made the reasonable assumption that what was intended to be decrofted was the area physically occupied by Miss MacLeod when the plan which became the decrofting plan was drawn. As has been seen, that area, although not precisely defined by the Divisional Court, included a small area to the north of where the Divisional Court has determined the true boundary between the crofts to have been. That has led the Divisional Court to the conclusion that part of number 5 was inadvertently decrofted.

[38] The Court also sought assistance from the link between what Mr Kerrigan came to own and what had been decrofted.

[39] In that regard we accept, as the Divisional Court did at pages 48-49, that the intention was that what had been decrofted and what Mr Kerrigan came to own should be one and the same thing. But that takes us no distance at all in terms of identifying what was in fact decrofted (as opposed to what was intended to be decrofted) because, in terms of what Mr Kerrigan came to own, his Land Certificate and the plan attached thereto are of no assistance, the scale of said plan being even smaller than the scale of the decrofting plan.

[40] In our view in taking this approach of looking at such extraneous evidence, understandable although it was, the Divisional Court erred. It is not what was intended to be decrofted that matters but what has in fact been decrofted. And it is in our view possible to answer that from the decrofting direction itself, without resort to such extraneous evidence of the kind taken into account by the Court. What has been decrofted in our view is an area, within croft 6, as described at paragraph [36] above. We say “within croft 6” because the direction could not competently have decrofted land from croft 5 and does not in fact purport to do so. It follows that if there is uncertainty as to the precise location of that area it has to be resolved by reference to the croft boundaries rather than to anything else. If the croft boundary is itself in doubt the remedy is an application such as the present one which has now led to that doubt being resolved in terms of part (Five) of the Divisional Court’s decision. If the line of the croft boundary and the line of the decrofting plan then turn out not to match precisely then, in a marginal case such as this one, the latter has to yield to the former. In our view, therefore, the Divisional Court erred in fixing the croft boundary of number 5 by reference to the decrofted area rather than fixing the decrofted area by reference to the croft boundary.

[41] From time to time we encounter cases in which, notwithstanding the terms of a decrofting direction, the annexed plan plainly includes an area which is part of another croft. We say more about these below. But this is not such a case. Because of the features which we have mentioned at [35] above, the present plan can only be demonstrative: it lacks what is required to make it taxative, even if that were the intention. In that situation the Divisional Court ought not to have felt driven to the conclusion that the decrofting direction had produced an unintended and incompetent result.

[42] The respondent’s position in this appeal is that all of the land as occupied by him by virtue of his Land Certificate must be part of croft 6 because the decrofting direction applied only to croft 6. That is a simple submission but it does not take the respondent very far if the exact location of the decrofted area falls to be determined by reference to the true pre-existing boundary between the crofts, as we have just held it does.

[43] If Mr Kerrigan contends that, notwithstanding our decision as to the boundary of the decrofted area, he has heritable title going beyond that boundary and if that is disputed by Mrs Imrie that is a matter for the ordinary courts to resolve, the Land Court having no jurisdiction over questions of heritable title, although one would fervently hope that the parties will not become embroiled in further litigation on a matter of such little worth.

[44] Having come to the conclusion that the Divisional Court was not entitled to conclude that the decrofting direction of 7 January 2004 had the effect of inadvertently decrofting part of croft number 5, we have sustained the appeal, recalled parts (Four) and (Five) of the Divisional Court’s Order and replaced them with a single finding that the boundary of croft 5 in the disputed area is as was described in part (Five) of the Divisional Court’s Order and that quoad ultra the boundary between the two crofts is as described in part (Four) of that Order.

[45] On the approach we have taken – because of the facts and circumstances of this particular case – it has not been necessary for us to comment upon what the practice of the Court should be where a plan attached to a decrofting direction indubitably includes land which is part of another croft. In our Order and Note of 23rd August 2007 we said (at paragraph [9]) that the appeal raised potentially difficult and important questions as to how errors in decrofting directions should be dealt with by this Court and asked parties to bear that in mind when preparing their submissions. As it turned out the submissions we received were largely confined to the facts and circumstances of this case and it has subsequently proved possible to resolve the matter within the same limited compass. More generally, however, the current practice of the Court at divisional level - and the matter has not, so far as we are aware previously come before the Full Court - is to regard land belonging to another croft which has been mistakenly included in a plan forming part of a decrofting order as having been effectually, if erroneously, decrofted and to regard the result as being (a) that we have no jurisdiction over it while the direction is extant and (b) that the only remedy is an action for reduction in the Court of Session. What the Divisional Court did in this case, on the basis of its conclusion that some land had erroneously been decrofted from croft 5, was consistent with that practice. To some extent the appellant’s submissions seem to challenge that practice but, since it is not necessary to resolve that point in this appeal and since we have not had full argument on it, further consideration as to whether that is the correct approach must await determination in another case, suitable on its facts and in which we have the benefit of full submissions.

[46] We would say two things of general application by way of guidance arising out of the present case however. Firstly, as a matter of general principle, where a decrofting direction is dealing with an area adjacent to a croft boundary and the plan annexed, although ambiguous, is capable of being understood as showing an area confined to that croft then the precise location of the decrofted area falls to be fixed by reference to the croft boundary. Secondly, plans of a scale such as has been used here and containing insufficient reference to physical features on the ground to enable identification of the precise boundaries of the area in question on the ground are to be regarded as demonstrative only. The consequence of that in a marginal case is that they are to be taken as relating only to land on the croft in respect of which the decrofting direction has been sought.

[47] Returning to the result in this particular case, although that result has been to sustain the appeal we cannot leave the case without commenting on the painstaking care taken by the Divisional Court in going about its task. The process by which it came to its decision on the whereabouts of the disputed boundary, involving as it did very fine assessment and analysis of the evidence coupled with similarly meticulous site inspections, was a model of its kind. Nothing we have said or done in this appeal detracts from that.

Expenses

[48] We have allowed 14 days for motions on expenses.

For applicant: Party

For respondent: Mr K MacDonald, Solicitor, Stornoway