Decision of the Scottish Land Court

Jeremy S Luty (Applicant) v Iain a MacLeod & Others (Respondents)

Case reference SLC 117/17
before
Iain F Maclean, Deputy Chairman, and John A Smith
19 December 2017

Introduction

[1] In this application, the Applicant, the owner of a former croft house known as “Cabhalan”, 1 Quidinish (otherwise Cuidinish), Isle of Harris, craves an order under section 14(4)(b) of the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”) modifying the entry in the Crofting Register (“the register”) in respect of the croft 1 Cuidinish, of which the site of his house formerly was part. First registration of the croft in the register, under Croft Number C2742, was effected on 26 May 2016 and on 31 May 2016 the Crofting Commission (“the Commission”) notified the Applicant, in his capacity as the owner of adjacent land (not being land which is an adjacent croft), and as such a person mentioned in section 12(3) of the 2010 Act to whom such notification must be given, of the matters mentioned in section 12(4) of the 2010 Act, in conformity with section 12(1) of the 2010 Act. Section 12(4) of the 2010 Act provides that the matters referred to in section 12(1) of the 2010 Act are – (a) that the croft has been registered; (b) the description of the croft as it is entered in the registration schedule; (c) the names and designations of any persons entered in the registration schedule in accordance with section 11(2)(b) of the 2010 Act; (d) the right to challenge the registration by applying to the Land Court under section 14(1) of the 2010 Act; and (e) the period, mentioned in section 12(5) of the 2010 Act, before the end of which such a challenge must be brought.

Challenge to first registration

[2] Section 14(1) of the 2010 Act provides that any person to whom notice of first registration is given under section 12(1) of the 2010 Act, or who otherwise is aggrieved by the registration of the croft to which the notice relates, may apply before the end of the period mentioned in section 12(5) of the 2010 Act to the Land Court for an order under section 14(4)(a) or (b) of the 2010 Act. Section 14(4) of the 2010 Act provides that on receipt of an application under section 14(1) of the 2010 Act, the Court may (a) make an order that the entry in the register relating to the croft be removed, and (b) make an order that the entry in the register relating to the croft be modified. A third option, under section 14(4)(c) of the 2010 Act, is that the Court may make no order, i.e. refuse the application for removal or modification of the entry in the register. The period mentioned in section 12(5) of the 2010 Act is the period of 9 months beginning with the date on which the Commission issue notification of first registration under section 12(1) of the 2010 Act.

Challenges after the end of the 9 month period

[3] The Applicant’s application under section 14(1) of the 2010 Act was received by the Land Court on 11 September 2017. It was, accordingly, made some 7 months after the end of the 9 month period mentioned in section 12(5) of the 2010 Act. Section 14(2) of the 2010 Act provides that where an application under section 12(1) of the 2010 Act is made after the end of the period mentioned in section 12(5) of the 2010 Act, the Court may, on cause shown [our emphasis], deal with the application as if it had been made before the end of that period. The effect of registration of a holding situated in the crofting counties in the register is, by section 3ZA(2) of the Crofters (Scotland) Act 1993 (“the 1993 Act”) that – (a) the holding is, from the date of registration, a croft; (b) the land which comprises the croft is determined by the description of that land in the registration schedule of the croft; and (c) from the date of registration, any person for the time being entered in the registration schedule of the croft as the tenant of the croft is a crofter. Section 3ZA(5) of the 1993 Act provides that nothing in this section affects whether, before the date of registration, the holding was a croft or any person was the tenant of it.

The circumstances giving rise to the making of the present application

[4] The Applicant contends that the description (based on the ordnance map) of the land which comprises croft 1 Cuidinish in the registration schedule relative thereto in the register takes in some 25% of the area of his decrofted house site. Where a mistake in the register arises as a consequence of a mistake in the application for registration, the Keeper may rectify the register to correct the mistake on the application of the person who made that application (the “original applicant”) in terms of section 16(2) of the 2010 Act, but in the absence of such action on the part of the original applicant, a significant part of the plot upon which the Applicant’s house stands, by operation of section 3ZA(2)(b) of the 1993 Act, will be rendered subject to crofting tenure, regardless of the status of that land prior to first registration of croft 1 Cuidinish in the register, unless the Applicant succeeds in securing modification of the entry in the register relating to croft 1 Cuidinish.

Discussion – procedure

[5] Section 14(2) of the 2010 Act, then, confers upon us a discretion to deal with a challenge to first registration made after the end of the 9 month period mentioned in section 12(5) of the 2010 Act as if it had been made before the end of that period, but for us to exercise that discretion in favour of dealing with an application for removal or modification made after the end of the 9 month period, it is incumbent upon an applicant to show cause why we should do so, which seems to us to entail furnishing us with some explanation as to why his or her challenge to first registration was not made within the 9 month period, and making out a case for why its lateness should now be excused and the application permitted to proceed.

[6] This is the fourth such challenge to first registration made after the end of the 9 month period mentioned in section 12(5) of the 2010 Act we have received in recent months. In two of the three previous applications, the applicants initially overlooked the requirement to show cause why we should deal with a challenge to first registration made after the end of the 9 month period. Where it is apparent on the face of an application that it has been made after the end of the 9 month period, it is pars judicis (the part or duty of the judge) to notice and act upon this point, and in those two cases we afforded the applicants the opportunity to adjust their applications to attempt to address this deficiency before ordering further procedure.

[7] Here, the Applicant was alert to the necessity of showing cause why the Court should deal with his challenge to first registration notwithstanding that it was made after the end of the 9 month period mentioned in section 12(5) of the 2010 Act, and we discuss later on in this Note the merits of his position thereon. We would, however, wish to take this opportunity to emphasise that in any future application in which the challenge to first registration is made after the end of the 9 month period mentioned in section 12(5) of the 2010 Act, we shall expect the statement of facts in the application to include a paragraph explaining how it transpires that the applicant finds himself or herself now having to invoke the Court’s power, under section 14(2) of the 2010 Act, on cause shown, to deal with the application as if it had been made before the end of that period. It should be disclosed in that paragraph whether the applicant received notification of first registration under section 12(1) of the 2010 Act. If the applicant did not receive such notification, because he or she was not, as at the date on which the Commission issued notification under section 12(1) of the 2010 Act, a person mentioned in section 12(3) of the 2010 Act, this should be related, and the applicant should expound, so far as within his or her knowledge, upon the reasons why his or her predecessor as a person mentioned in section 12(3) of the 2010 Act omitted to apply, before the end of the 9 month period, to the Land Court for an order under section 14(4)(a) or (b) of the 2010 Act, and upon how it has come about that the applicant now is under the necessity of doing so in that predecessor’s stead.

Discussion – “cause shown”

[8] If the applicant did receive such notification, it reasonably may be anticipated that his or her explanation as to why no challenge was made before the end of the 9 month period will be subjected to particular scrutiny by the Court. The only application to date in which the Court wrote upon the issue of what constitutes cause in terms of section 14(2) of the 2010 Act is Mackenzie v Halcrow (RN SLC/127/16 – Order of 6 October 2016). In that application, the applicant was aware both that a mistake had been made in the registration of the boundaries of her brother’s neighbouring croft, and of the 9 month period before the end of which a challenge must be brought, but being busy with opening a new farm shop and café, she simply did not get round to addressing the problem in time. The Chairman (The Hon. Lord Minginish) held that this did not amount to cause shown, commenting that:

“In our opinion ‘cause shown’ requires something which justifies or at least excuses the failure to make the application timeously. Illness and consequent inability to deal with the matter would be an example. If merely being too busy with other things was to be an adequate reason the time limit would be rendered nugatory. It also has to be noted in the present context that a time period of nine months for bringing a challenge is a very long one; far longer than most statutorily prescribed time limits for bringing appeals. The applicant has accordingly not given good reason for the delay and the application is therefore rejected …”

The circumstances relied upon by the Applicant as showing cause

[9] Here, the 0.25 acre site of what had been the croft house of croft 1 Quidinish was conveyed to the Applicant by Feu Charter by the Trustees of the late Edward Charles Hitchcock in his favour dated 4 and 10 February and recorded in the Division of the General Register of Sasines applicable to the County of Inverness 5 April, all 1973 [Production 6]. The plan of the subjects annexed and subscribed as relative to the Feu Charter was the classic “floating rectangle” (for which see Professors George L Gretton and Kenneth G C Reid, Conveyancing (4th Ed.; 2011) at paragraph 12-16), impossible to relate to actual features on the ground. The plan had been prepared by the landlords’ estate factor, the late Douglas N Kesting, Solicitor, who had measured the site of the croft house during a visit to Harris and who noted, in his letter to the Applicant dated 14 September 1972 [Production 1], that the corners of the site “are clearly marked on the ground”. The same plan was utilised in the landlords’ application to the Land Court to resume the site of the croft house for the purpose of feuing it to the Applicant, and had been docquetted and signed as relative to the ensuing resumption order granted by the Court on 19 December 1972 [Production 4].

[10] When the croft was first registered, the Applicant received intimation of the fact of registration from the Commission and saw nothing untoward when he consulted the ordnance map entry in the register: on viewing it, he saw an excluded rectangle of what he assumed to be the correct dimensions situated where he expected to see it at the end of the access track leading to the public road, and he took it that all was well. He believed that the registration would have taken cognisance of the 1972 resumption order. Several months after the end of the 9 month period, the Applicant, who was planning an extension to his house in respect of which he required to apply for planning permission, started to grow concerned that the croft registration might have misrepresented the boundaries of his property, but it was only when he had a professional surveyor plot his title boundaries as against what appeared on the register that he was in a position positively to assert that the boundaries as depicted in the latter were wrong, and to indicate in what respects, by reference to a plan drawn up to illustrate what he claims in the present application to be the divergence between the two [Production 2A].

Responses received to the Applicant’s section 14(2) submission

[11] Before reaching a decision on the “cause shown” issue, we considered that it was only appropriate to extend to all parties who might have an interest the opportunity to comment on the Applicant’s explanation for the lateness of his application, and to bring to our attention such information as they considered relevant to the issue of whether the Court should deal with his challenge to first registration as if it had been made before the end of the 9 month period mentioned in section 12(5) of the 2010 Act, in exercise of the discretionary power conferred on it by section 14(2) of the 2010 Act. Responses were received by the Court from the Keeper (emphasising that in the event of the Court ordering rectification, the Court should specifically state in its determination that it had considered section 14(2) of the 2010 Act, so as to ensure that any such determination was capable of being given effect to in the register), the Commission and agents acting for the landlord of croft 1 Cuidinish, Mrs Mary J G MacLeod.

[12] The Commission, through their solicitor David Findlay, noted that:

“the resumed site plan appears to be what would be referred to as a ‘floating rectangle’ with no coordinates, and with the house as the only physical feature on the plan. It is not known if this is a problem, but it would in the Commission’s view be unreasonable to expect a lay person to be aware of the possible consequences of this within the 9 month period, particularly when the owner of the house has been in occupation for approximately 45 years apparently without any doubts or issues arising as to the boundaries of the house site.”

[13] The agents acting for Mrs MacLeod pointed out that the Applicant had, as a neighbour, been duly notified of the registration of croft 1 Cuidinish, and they argued that his misapprehension that its registration was of no relevance to him was insufficient to demonstrate cause as to why his challenge should be allowed to proceed outwith the usual period. They went on to explain that the subjects of their client’s application for first registration had been mapped by reference to the contents of her own title deed plan, a copy of which they produced to the Court, but that if it transpired that what they referred to in their email to the Court as the “excepted subjects” (which we take to be a reference to the Applicant’s house site) were:

“not accurately shown on our client’s title plan then she would certainly be prepared to give consideration to making an application to have the crofting register entry amended, subject, of course, to the consent of her croft tenant and satisfactory resolution with regard to any expenses occasioned in connection with such an application.”

They intimated that if the Court were to hold that the Applicant had shown cause why it should deal with his challenge to first registration as if it had been made before the end of the 9 month period, their instructions were to request that the application be sisted, to avoid unnecessary expense, in anticipation that agreement as to rectification might be reached.

Decision

[14] Do the circumstances relied upon by the Applicant show cause for allowing the application to proceed, notwithstanding it came some 7 months beyond the end of the 9 month period? This is not a case in which there was a failure to notify a person entitled to notification of first registration in terms of section 12(1) of the 2010 Act: the Applicant was duly notified of the matters mentioned in section 12(4) of the 2010 Act, and he was thus put on notice that the land all around his house site had been registered in the register and that the onus was on him, if he wished to challenge that registration, to apply to the Land Court under section 14(1) of the 2010 Act before the end of the period of 9 months beginning with the date on which the Commission issued notification under section 12(1) of the 2010 Act, being 31 May 2016. He did not do so, and to that extent may be regarded as the author of his own misfortune.

[15] Against that, however, we recognise on a practical level that, given the limitations of scale, it is entirely possible that a visual inspection of a map entry on the register may not flag up to the layman the existence of a discrepancy between what has been registered and the boundaries of his own adjacent property, and that if we were to answer that question in the negative here, whilst recognising that ultimately, every case will fall to be determined on its own particular facts and circumstances, it would be tantamount to holding that someone who receives intimation of a neighbour’s registration, but omits to go to the trouble and expense of instructing a professional surveyor to double-check that the registration is correct, may, by that omission, lose the right to challenge the registration upon the elapse of the 9 month period. In such circumstances, unless the original applicant for registration is prepared to co-operate by applying to the Keeper in terms of section 16(2) of the 2010 Act for rectification of the entry in the register, the only remedy for someone in the applicant’s position would be to apply to resume the area owned by him that was erroneously included in the croft registration, but that would not, of course, solve any associated consequential problem of an area erroneously excluded therefrom. The introduction of the register was supposed to make life easier for crofters (and for that matter their neighbours) by establishing definitively the location of croft boundaries; we do not think that we would be doing the crofting community any favours were we to so hold.

[16] Accordingly, we are persuaded that cause has been shown why the Court should deal with the application as if it had been made before the end of the 9 month period mentioned in section 12(5) of the 2010 Act, and we have so found. We have given the Applicant 21 days to respond to the croft landlord’s motion that the application be sisted (i.e. that the proceedings before the Court be stayed or suspended) for a period, essentially, as we understand it, to afford parties the opportunity to explore whether it may be possible for them to agree that the present situation may be resolved administratively, by way of application by the croft landlord (as the original applicant for registration) to the Keeper in terms of section 16(2) of the 2010 Act. We would conclude with the cautionary observation that what the circumstances disclosed in this application suggest is that it could be many years before some owners of land held on older Sasine titles, situated adjacent to registered crofts or common grazings, come to realise the existence of errors in the register that affect their properties.