Decision of the Scottish Land Court

John Macaulay (Applicant) v Mrs Mary Ann Morrison (Respondent)

Case reference SLC 119/15
before
Iain F Maclean, Deputy Chairman, and John A Smith
13 March 2017

Introduction

[1] The registration by the Keeper of the Registers of Scotland (“the Keeper”) of croft 1A Tolsta Chaolais in the Crofting Register on an application for first registration submitted by its then tenant Mrs Mary Ann Morrison provoked two challenges before the end of the 9 month period mentioned in section 12(5) of the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”). Both John Macaulay (Application RN SLC/119/15) and Mrs Mary A Taylor and Mrs Ena Jess (Application RN SLC/127/15) (collectively “the Applicants”) have applied to the Court for orders under section 14(4) of the 2010 Act modifying the resulting entry in the Crofting Register. Answers to those two applications were lodged by Mrs Morrison (“the Respondent”) and by Mark Tayburn, who is designed in his Answers as the crofter of croft 1C Tolsta Chaolais (“the Interested Party”). The Interested Party having, in his Answers, called into question the interest of the Applicants to challenge the first registration, we made arrangements, as contemplated in rule 11(2)(c) of the Rules of the Scottish Land Court 2014 (“the 2014 Rules”) for the cases to be heard together in debate on Tuesday 8 November 2016 within Stornoway Sheriff Court.

Appearance

[2] At the debate, Mr Macaulay, who is a retired solicitor, appeared on his own behalf, as he was entitled to do in terms of rule 100(1) of the 2014 Rules. Mrs Jess appeared on her own behalf, and with our permission, also for her sister, Mrs Taylor, who was prevented by family commitments from attending in person, in conformity with rule 100(3)(a) of the 2014 Rules, which provides that a party may, with the permission of the court, be represented by a member of the party’s family as defined in section 71 of the Agricultural Holdings (Scotland) Act 2003 (“the 2003 Act”) unless the court is satisfied that it would not be consistent with the just disposal of the case in accordance with rule 1 (Purpose of the rules etc.) of the 2014 Rules. The definition in section 71 of the 2003 Act extends to siblings. Kenneth J MacLennan appeared upon the same basis on behalf of his sister, the Respondent. The Interested Party was represented at the hearing, with our permission, by Lewis Kermack. Mr Kermack is someone well known to us. Although, as he told us, he does not currently hold a practising certificate, and so could not appear for the Interested Party assolicitor in terms of rule 100(2)(a) of the 2014 Rules, and he is not a member of the Interested Party’s family, so rule 100(3)(a) of the 2014 Rules is of no relevance to his situation, Mr Kermack did, until comparatively recently, appear regularly before the Land Court in the course of his employment as a solicitor with a prominent Edinburgh firm. Whilst in practice as a solicitor, Mr Kermack was an accredited specialist in agricultural law who also represented clients in a number of crofting cases, e.g., Kennedy v Stewart & Others (No. 1) 2008 SLCR 222 and (No. 2) 2008 SLCR 271; Nevis Estates Ltd & Others v Cameron 2010 SLCR 83, 117. Against that background, we were content to grant our permission to him representing the Interested Party at the debate under reference to rule 100(3)(b) of the 2014 Rules, which provides that a party may, with the permission of the court, be represented by any other person where the court is satisfied that the person is likely to be able to present the party’s case efficiently and to assist the court in reaching a just result in accordance with rule 1 of the 2014 Rules.

The Respondent’s interest to defend the applications

[3] Somewhat ironically, given that the debate in the two applications was fixed for the purpose of disposing of the Interested Party’s preliminary pleas directed at the interest of the Applicants to apply to us for orders under section 14(4) of the 2010 Act, an issue arose early in the course of the hearing as to whether the Respondent herself retained an interest to oppose the grant of such orders. It emerged that the Respondent was no longer the tenant of croft 1A Tolsta Chaolais, she having assigned it on 29 February 2016 to Frances Muriel Berrill, who is now entered in the Crofting Register as the tenant thereof. Ms Berrill was aware of the proceedings before the Land Court, but opted not to participate on the basis that she had no relevant information of her own to bring to bear on the subject of her croft’s boundaries and was content to accept the Court’s determination on that matter. Mr MacLennan explained that the reason for his sister’s continued involvement in the proceedings was that she was under obligation to Ms Berrill in terms of the parties’ bargain to ensure vacant possession of the whole subjects assigned to her and having also been a party to an agreement between the tenants of crofts 1A, 1B and 1C Tolsta Chaolais as to the respective boundaries of their crofts, upon the basis of which the Respondent had proceeded to apply for first registration of croft 1A Tolsta Chaolais, she felt bound by good faith to defend it when it was challenged. We did not have the benefit of full submissions upon the issue of whether such considerations were sufficient to qualify an interest to oppose the applications, but in the event, no practical issue arises, because at the hearing Mr MacLennan was content merely to adopt the submissions advanced by Mr Kermack for the Interested Party, and did not seek to advance any separate submissions of his own. His attendance at the debate did, however, prove to be of some assistance to us, because he was able to provide the information that enabled us quickly to dispose of a preliminary issue which arose shortly before the hearing, to which we shall revert later in this Note.

The statutory provisions on notification of, and challenge to, first registration

[4] The establishment of the Crofting Register was one of the innovations of the 2010 Act. Although the duty to establish and maintain a public register of crofts, common grazings and lands held runrig is placed by section 3(1) of the 2010 Act upon the Keeper, the Crofting Commission (“the Commission”) play a prominent role in the registration process. Section 7(1) of the 2010 Act provides that, subject to section 7(7) of the 2010 Act, which concerns applications for registration by the Commission themselves, an application for registration, and the fee payable in respect of such registration, is to be submitted to the Commission. Broadly stated, section 7(3) of the 2010 Act requires the Commission, as soon as reasonably practicable after receiving an application for registration – (a) in the case of an application for first registration, to check the information contained in or accompanying the application against the information relating to the croft, if any, in the Register of Crofts, and (b) to forward (i) the application, together with any comments they may have on it; and (ii) the fee payable in respect of it, to the Keeper. The Commission may, before forwarding an application for registration to the Keeper, require the applicant to provide them with such further information relating to the application as they consider appropriate (section 7(4) of the 2010 Act) and in terms of section 7(5) of the 2010 Act may refuse to forward an application for registration if – (a) a requirement made under section 7(4) of the 2010 Act is not met; (b) the application is frivolous or vexatious; (c) the fee payable in respect of the registration has not been tendered; (d) there is a material inaccuracy in the application; or (e) they consider that the Keeper would otherwise not accept the application under section 8(2) of the 2010 Act. Section 8(2) of the 2010 Act stipulates that the Keeper must not accept an application for registration if – (a) it relates to a croft which is not sufficiently described to enable the Keeper to identify it by reference to the ordnance map or such other map as the Keeper may require; (b) the information otherwise contained in or accompanying it would not enable the Keeper to make up or amend the registration schedule of the croft; (c) in a case where the application relates to a registered croft, the application does not bear a reference to the registration schedule of that croft; (d) payment of the fee payable in respect of such registration has not been tendered.

[5] The Keeper completes registration, in the case of a first registration, by making up a registration schedule for the croft in the Crofting Register in accordance with section 11 of the 2010 Act: section 9(1)(a) of the 2010 Act. By section 11(2) of the 2010 Act, the Keeper must enter in the registration schedule – (a) a description of the land which comprises the croft that must consist of or include a description of it based on the ordnance map or such other map as the Keeper considers appropriate; (b) the name and designation of, as the case may be – (i) any tenant of the croft; (ii) any owner-occupier crofter of the croft; (iii) any landlord of the croft; (iv) any owner of the croft; and (c) such other information as the Keeper considers appropriate. When the Keeper completes a first registration under section 9(1) of the 2010 Act, he must issue to the applicant a certificate of registration – (a) confirming the registration; (b) noting that it may be challenged under section 14(1) of the 2010 Act; and (c) containing such other information as the Keeper considers appropriate: section 9(2) of the 2010 Act. Section 9(4) of the 2010 Act imposes on the Keeper an obligation, when issuing a certificate of registration to the applicant under section 9(2) of the 2010 Act, at the same time to send a copy of it to the Commission.

[6] On receipt of a copy certificate of registration under section 9(4) of the 2010 Act, the Commission must, by section 12(1) of the 2010 Act, notify any persons mentioned in section 12(3) of the 2010 Act of the matters mentioned in section 12(4) 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; (e) the period, mentioned in section 12(5) of the 2010 Act, before the end of which such a challenge must be brought, being the period of 9 months beginning with the date on which the Commission issue notification under section 12(1) of the 2010 Act. The persons mentioned in section 12(3) of the 2010 Act are –

(a) the owner of the croft;

(b) the landlord of the croft

(c) the crofter of the croft;

(d) the owner-occupier crofter of the croft;

(e) the owner of any adjacent croft;

(f) the landlord of any adjacent croft;

(g) the crofter of any adjacent croft;

(h) the owner-occupier crofter of any adjacent croft;

(i) the owner of any adjacent land (not being land which is an adjacent croft);

(j) the occupier of any adjacent land (not being land which is an adjacent croft).

Section 12(8) of the 2010 Act imposes on the applicant, on receipt of the certificate under section 9(2) of the 2010 Act relating to a first application, an obligation to give public notice of the registration of the croft by – (a) placing an advertisement, for two consecutive weeks, in a local newspaper circulating in the area where the croft is situated; and (b) affixing a conspicuous notice in the prescribed form to a part of the croft.

[7] By subsection (1) of section 14 (Challenge to first registration) of the 2010 Act, “any person to whom notice is given under section 12(1), or who otherwise is aggrieved by the registration of the croft to which the notice relates”, may apply before the end of the period of 9 months mentioned in section 12(5) of the 2010 Act to the Land Court for an order under section 14(4)(a) or 14(4)(b) of the 2010 Act, being respectively an order that the entry in the register relating to the croft be removed and an order that the entry be modified. Section 14(5) of the 2010 Act provides that where section 14(6) thereof applies, the Court must, if making an order such as is mentioned in section 14(4)(b) of the 2010 Act, declare the boundary of the croft to be that which, in all the circumstances, it considers appropriate. Section 14(6) of the 2010 Act is stated to apply where – (a) the application challenging the registration raises a question as to the boundaries of the croft; and (b) the evidence available to the Court is insufficient to enable any boundary to be clearly determined.

The Interested Party’s preliminary pleas

[8] In his Answers to Application RN SLC/119/15 at the instance of Mr Macaulay, the Interested Party pleads that “The Applicant not being aggrieved by the registration of croft 1A, the Application should be found incompetent and should be dismissed.” In his Answers to Application RN SLC/127/15 at the instance of Mrs Taylor and Mrs Jess, the Interested Party’s preliminary plea is in somewhat different terms, being “The Applicants not having standing or interest and not being aggrieved by the registration of croft 1A, the Application should be found incompetent and should be dismissed.” The Interested Party’s preliminary pleas are formulated differently in his Answers to the two applications on account of the distinction which the Interested Party draws between the respective positions of Mr Macaulay on the one hand and of Mrs Taylor and Mrs Jess on the other. This distinction bears on the preliminary issue to which reference was made at the end of paragraph [3] above.

The preliminary issue in Application RN SLC/127/15

[9] Ten days before the hearing Mrs Taylor and Mrs Jess intimated by way of a letter to the Court dated 28 October 2016 a motion to have the Respondent’s application for first registration of croft 1A Tolsta Chaolais dismissed on account of two procedural irregularities said to have occurred during the registration process, namely:

The requirements to notify under sections 12(1) and 12(3)(i) of the 2010 Act and to give public notice by the means specified in section 12(8)(b) of the 2010 Act were mandatory and a failure to comply with them was fatal to the application for registration. Mrs Taylor and Mrs Jess acknowledged that the Respondent had given public notice of the registration of croft 1A Tolsta Chaolais, and that they had been able timeously to challenge the first registration by making an application to the Land Court before the end of the 9 month period mentioned in section 12(5) of the 2010 Act for an order under section 14(4)(b) of the 2010 Act. Nevertheless, they argued, they had been prejudiced by the former of those two failures because it meant that they came before the Court to challenge the first registration only as a “person . . . who otherwise is aggrieved by the registration of the croft” rather than as a person to whom notice is given under section 12(1) of the 2010 Act, into which category they properly fell as the owners of adjacent land (not being land which is an adjacent croft). By way of explanation, Mrs Taylor and Mrs Jess own the decrofted house site and garden ground which formerly formed part of the croft 1B Tolsta Chaolais and adjoins one of the five discrete and separate plots of land that together make up croft 1A Tolsta Chaolais, and it is not disputed that as such, they were persons to whom notice should have been given under section 12(1) of the 2010 Act.

[10] The Interested Party, by letter to the Court dated 1 November 2016, marked his opposition to that motion at the instance of Mrs Taylor and Mrs Jess. In setting out his grounds of opposition thereto, the Interested Party put in issue whether, as a matter of fact, there had here been any failure to comply with the provisions of section 12 of the 2010 Act. He floated the possibility that with Mrs Taylor and Mrs Jess both living in the Glasgow area and their addresses being unlikely to be known to the Commission, a recorded delivery letter addressed to them at their house in Tolsta Chaolais may have been sent but neither signed for nor collected. The Interested Party emphasised that the obligation to notify under section 12(1) of the 2010 Act rested with the Commission rather than with the Respondent. Mrs Taylor and Mrs Jess by email to the Court dated 1 November 2016 then moved the Court to require the Respondent – (a) formally to advise the Court “of all parties whom she has advised the Crofting Commission would require to be notified under [section 12(1) of the 2010 Act]” and (b) to produce a copy of all documentation she supplied to the Court.” At the hearing, Mrs Jess produced and lodged [as Production 8] an email dated 4 November 2016 she had received from Lorraine Lowrie, a Croft Registration Casework Officer employed by the Commission, in response to an enquiry she had made the previous day regarding the registration of croft 1A Tolsta Chaolais. It confirmed that the two neighbours written out to by the Commission following registration of croft 1A Tolsta Chaolais in the Crofting Register were the occupiers of crofts 1B and 1C Tolsta Chaolais, and explained that:

“With regards to the administrative process followed by the Commission for notifying neighbours, we would always write out to anyone identified on the application form as a neighbour however we would also look at the map and see if we could identify any other neighbours and if we are able to, we would write out to them also. I should point out however that the Commission’s Register of Crofts is not map based, which is why a separate Crofting Register showing defined boundaries was set up, and we do not always have definitive information in our records that would establish other crofts or other land which was adjacent to the croft. This is why we encourage applicants to provide as much information as possible with regard to neighbours in their application form.”

The position with regard to notification was made even clearer when Mr MacLennan frankly admitted that in assisting the Respondent with her application for first registration, he had overlooked the requirement to notify persons in the position of Mrs Taylor and Mrs Jess, and we take the contents of Ms Lowrie’s email as confirming that notice under section 12(1) of the 2010 Act was not given to them. In light of the ensuing general acceptance that Mrs Taylor and Mrs Jess had not been notified as they should have been under section 12(1) of the 2010 Act, we did not require to rule on Mrs Jess’s second motion. The alleged failure to comply with section 12(8)(b) of the 2010 Act was not mentioned at the hearing and we proceed upon the basis that this point was not being insisted in by Mrs Taylor and Mrs Jess.

[11] Mrs Taylor and Mrs Jess couched their motion in terms of seeking dismissal of the Respondent’s application for first registration of croft 1A Tolsta Chaolais, but of course, the Respondent’s application for first registration of croft 1A Tolsta Chaolais was accepted for registration by the Keeper, who then completed registration by making up a registration schedule for the croft in accordance with section 11 of the 2010 Act, issued a certificate of registration to the Respondent and sent a copy of it to the Commission. The Respondent’s application for first registration of croft 1A Tolsta Chaolais in the Crofting Register has been processed and there is no outstanding application for first registration for us to dismiss, even if the legislation conferred upon us the power to do so. In Application RN SLC/127/15, Mrs Taylor and Mrs Jess had applied to us for an order under section 14(4)(b) of the 2010 Act that the entry in the Crofting Register relating to croft 1A Tolsta Chaolais be modified, but in opposing their motion, the Interested Party interpreted it as amounting in practice to an attempt by them to apply instead for an order under section 14(4)(a) of the 2010 Act that the entry be removed. Mr Kermack argued on behalf of the Interested Party that we should decline to entertain that motion without entering into any consideration of its merits on the basis that it came too late in the day, and in any event after the expiry of the 9 month period during which an application for an order under section 14(4)(a) of the 2010 Act might have been made, but he did not, in terms, dispute our entitlement, on an application under section 12(1) of the 2010 Act, to make an order under section 14(4)(a) of the 2010 Act that an entry in the register relating to a croft be removed due to the occurrence of some irregularity in the registration procedure.

[12] We would, however, wish to reserve our opinion on the issue of whether our powers under section 14(4)(a) of the 2010 Act so extend until we hear focused submissions thereon, in which the interplay between section 14 of the 2010 Act and section 20 of the 2010 Act will fall to be considered. Section 20(1) of the 2010 Act provides that a person aggrieved by any act or omission of the Keeper under Part 2 (THE CROFTING REGISTER) of the 2010 Act may appeal any issue of fact or law arising from that act or omission to the Land Court, and by section 20(2) of the 2010 Act, the Court may, on an appeal under this section, order the Keeper to take such remedial action as the order may specify, including action to rectify the register.

[13] Proceeding then for present purposes on the basis that the motion made by Mrs Taylor and Mrs Jess was competent, we would not have been inclined to refuse to entertain it solely on the ground that it came too late, but in any event, we consider that it fails on its merits. The requirement on the part of the Commission, on receipt of a copy of the certificate of registration from the Keeper under section 9(4) of the 2010 Act, to notify the persons mentioned in section 12(3) of the 2010 Act of the matters mentioned in section 12(4) of the 2010 Act may properly be characterised as mandatory, but we do not consider that it follows therefrom that a failure to notify any of the persons mentioned in section 12(3) of the 2010 Act necessarily will have the effect of invalidating the entry in the register relating to the croft and providing a basis for us to make an order that it be removed. The object of giving notice under section 14(1) of the 2010 Act is to alert persons who need to know of the fact of registration, and of the existence of a procedure for challenge and the period before the end of which such a challenge must be brought. The provision for the giving of notice under section 12(1) of the 2010 Act does not stand alone, because section 12(8) of the 2010 Act requires the applicant also to give public notice of the registration of the croft by – (a) placing an advertisement, for two consecutive weeks, in a local newspaper circulating in the area where the croft is situated; and (b) affixing a conspicuous notice in the prescribed form to a part of the croft.

[14] Here, the Commission failed to notify Mrs Taylor and Mrs Jess under section 12(1) of the 2010 Act, because Mr MacLennan, acting on behalf of the Respondent, in completing that section of the application form (Form A) which asks applicants for first registration to insert the names and addresses of any persons who own or occupy any adjacent croft or land, omitted to include Mrs Taylor and Mrs Jess as the owners of adjacent land (not being land which is an adjacent croft) to croft 1A Tolsta Chaolais. The guidance notes promulgated by the Commission on their website to assist applicants complete Form A make very clear what is required of applicants in this regard, explain that the Commission need this information to meet their notification duties under section 12(1) of the 2010 Act, and point out that if applicants are experiencing difficulty obtaining the information required to complete this section, it may be possible for them to obtain information as to the ownership or occupancy of properties adjacent to their crofts from Registers of Scotland or the Commission. It is, then, somewhat surprising that Mr MacLennan should have overlooked the need to identify persons in the position of Mrs Taylor and Mrs Jess in that section of Form A, and we note Mrs Jess’s claim that there are other persons who fall into the category of owners of adjacent land (not being land which is an adjacent croft) to croft 1A Tolsta Chaolais who similarly were not given notice by the Commission under section 12(1) of the 2010 Act, presumably for the same reason. That is less than satisfactory, but the provision in section 12(8) of the 2010 Act for the giving of public notice of the registration of the croft means that, as occurred here, a person entitled to notice under section 12(1) of 2010 Act who does not receive it may yet become aware of the fact of registration by that means.

[15] In any event, the Land Court may, on cause shown, where an application under section 14(1) of the 2010 Act is made after the end of the 9 month period mentioned in section 12(5) of the 2010 Act, deal with the application as if it had been made before the end of that period: section 14(2) of the 2010 Act. Whilst every such application ultimately will turn upon its own particular facts and circumstances, it seems to us that a failure on the part of the Commission to give notice under section 12(1) of the 2010 Act to a person mentioned in section 14(3) of the 2010 Act is a factor which may constitute cause for the Court to deal with a non-timeous challenge to first registration, and the conferral on the Court of a power, on cause shown, to over-ride the cut-off date for bringing such a challenge in our view further militates against a construction of the legislation that would make any failure to give notice under section 12(1) of the 2010 Act fatal to the entry in the Crofting Register to which it related.

Challenge to first registration

[16] The concern of Mrs Taylor and Mrs Jess that they might be in some way disadvantaged in their challenge as a result of coming before the Court as persons otherwise aggrieved by the registration rather than as persons to whom notice was given under section 12(1) of the 2010 Act was fuelled by the contents of the Interested Party’s Answers, which seemed to attach some significance to that distinction, and brings us to the nub of the issue we heard debated. In his written submission on behalf of the Interested Party, upon which he elaborated in the course of his oral submissions, Mr Kermack argued that the legislature had divided those who could challenge a registration into two categories. Persons to whom notice was given under section 12(1) of the 2010 Act (being the persons mentioned in section 12(3) of the 2010 Act) as such “automatically had title to sue”, but not necessarily an interest to do so, whereas persons “otherwise … aggrieved by the registration of the croft” in terms of section 14(1) of the 2010 Act:

“would only establish title to sue if they could demonstrate on what basis the registration of the croft had aggrieved them. There must be some qualifying step as, otherwise, a person living several hundred miles away, who may never have been to Tolsta Chaolais, could challenge a registration on no discernible basis, and his challenge would be treated with the same seriousness by the Court as that of a neighbour.”

[17] We disagree with this analysis, which seems to us to proceed on a fundamental misunderstanding of the import of the relevant statutory provisions. The above quoted passage from Mr Kermack’s written submission followed directly on from his observation that once a challenge has been made, “there appears to be no difference in the manner in which the Court is directed to deal with the challenge depending upon the category into which the challenger falls.” We agree with that observation, which seems to us to expose the essential flaw in the “two categories of challenger” analysis. We consider that Mr Kermack was on more solid ground advancing the argument from absence of interest to sue.

[18] The persons mentioned in paragraphs (a) – (d) of section 12(3) of the 2010 Act to whom notice must be given under section 12(1) of the 2010 Act are respectively the owner, landlord, crofter and owner-occupier crofter of the croft which has been registered. The persons mentioned in paragraphs (e) – (h) of section 12(3) of the 2010 Act are respectively the owner, landlord, crofter and owner-occupier crofter of any adjacent croft to the croft which has been registered, and the persons mentioned in paragraphs (i) and (j) of section 12(3) of the 2010 Act are respectively the owner and the occupier of any land (not being land which is an adjacent croft) adjacent to the croft which has been registered. It is clear, however, that it is not necessary to be a person with an interest in the croft which has been registered or in any croft or land adjacent to the croft which has been registered in order to apply for an order under section 14(4)(a) or (b) of the 2010 Act, because section 14(1) of the 2010 Act extends the class of person who may do so to “any person … who otherwise is aggrieved by the registration to which the notice [under section 12(1) of the 2010 Act] relates”.

[19] The more difficult question may be whether it is sufficient, in order to ground a challenge to first registration, to be a person with an interest in the croft which has been registered or in any croft or land adjacent to the croft which has been registered. By way of example, would the crofter of an adjacent croft have an interest to apply for an order under section 14(4)(b) of the 2010 Act that the entry in the register relating to the croft which has been registered be modified where the aspect of the registration which is being challenged does not affect his own adjacent croft? Mr Kermack’s answer to that question would be that even a person to whom notice is given under section 12(1) of the 2010 Act must demonstrate an interest in effecting the modification sought in order to ground a challenge to first registration, and we share that view. By way of example, where croft B, situated between croft A and croft C, is registered, it would seem odd if the crofter of the adjacent croft C could challenge the registration of croft B on the basis that it did not correctly depict the boundary between croft B and the adjacent croft A, notwithstanding that the crofter of adjacent croft A made no such challenge and the location of the boundary between croft A and croft B did not impact in any practical way upon the crofter of croft C, merely by dint of his having been given notice of first registration under section 12(1) of the 2010 Act. If that be correct, it surely would follow that the same must apply to a person to whom notice does not require to be given under section 12(1) of the 2010 Act (i.e. a person with no interest in the croft which has been registered or in any croft or land adjacent to the croft which has been registered), but who claims otherwise to be aggrieved by the registration. The inclusion of the word “otherwise” in “or who otherwise is aggrieved by the registration” in section 14(1) of the 2010 Act in our view also supports this analysis, in that it connotes that persons to whom notice is given under section 12(1) of the 2010 Act must themselves be persons in some way or other another aggrieved by the registration. The New Shorter Oxford English Dictionary (1993) definition of “aggrieved” (passing over those meanings now considered to be obsolete) is “Injured or wronged in one’s rights etc; having a grievance”.

[20] For completeness, we should record that we were referred in the course of submissions also to Conti v AIP Private Bank Ltd (reported at 2000 SC 240), in which an Extra Division of the Inner House considered the meaning of section 653 of the Companies Act 1985 (”the 1985 Act”), which applies if a company or any member or creditor of it “feels aggrieved by the company having been struck off the register” (section 653(1)), and empowers the court (section 653(2)), on an application by such company, member or creditor, to order that the company’s name be restored to the register in certain specified circumstances. One of the issues which the Extra Division had to decide was whether a company which itself had been instrumental in bringing about its own striking off could claim to be aggrieved for the purposes of section 653(1) of the 1985 Act. As a matter of construction of the statutory provision, the Extra Division held that it could. The opinion of Lord Prosser contains a discussion of the meaning of the expression “feels aggrieved” in that statutory context. Whilst acknowledging that the expression “is perhaps suggestive of a merely subjective dissatisfaction”, Lord Prosser recorded that it was not disputed that this was not the effect of the word “feels”: “it is accepted that the word ‘feels’ can be read as if it was ‘is’, and moreover that in order to be aggrieved for the purpose of this subsection, subjective dissatisfaction is not enough: there must be something which can fairly be regarded as an objective grievance [at page 243].” Whilst we do not think that there is anything in this decision which is not compatible with the approach we have taken to the interpretation of the words “or who otherwise is aggrieved by the registration” in section 14(1) of the 2010 Act, we would question whether how the court interpreted that differently worded provision in a different statutory context provides us with much by way of assistance in our present task.

Title and interest to sue

[21] As was explained by Lord Dunedin in D & J Nicol v Dundee Harbour Trustees 1915 SC(HL) 7, by the law of Scotland a litigant, and in particular a pursuer, must always qualify title and interest. Although not disposed to risk a definition of what constituted title to sue, Lord Dunedin thought it might fairly be stated that for a person to have such a title, “he must be a party (using the word in its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies [at pages 12-13].” Interest to sue has been defined as some benefit from asserting the right with which the action is concerned or from preventing its infringement. In Swanson v Manson 1907 SC 426, Lord Ardwall, at first instance, commented that:

“though a pursuer has a title to sue, yet if he has no interest he is not entitled to insist in an action. The grounds of this rule are (1) that the Law Courts of the country are not instituted for the purpose of deciding academic questions of law, but for settling disputes where any of the lieges has a real interest to have a question determined which involves his pecuniary rights or his status; and (2) that no person is entitled to subject another to the trouble and expense of a litigation unless he has some real interest to enforce or protect [at page 429].”

Subsequent case law has affirmed that the phrase “his pecuniary rights or his status” should no longer be regarded as an exhaustive or complete description of what may comprise an interest, but the interest relied upon, however small or contingent it may be, must nonetheless be real, with the existence of a sufficient interest being essentially a matter depending upon the circumstances of the particular case: Scottish Old People’s Welfare Council, Petitioners 1987 SLT 179 per Lord Clyde at pages 186-187.

[22] We think the structure of the legislation under consideration is such that it recognises that the persons most likely to be affected by a first registration are the persons mentioned in section 12(3) of the 2010 Act, which is why it is provided that they are to be given personal notice of first registration under section 12(1) of the 2010 Act, but that there may be other persons, not mentioned in section 12(3) of the 2010 Act, affected by that first registration, to whom the right to challenge should be extended, with the statutory requirement that public notice of the registration be given in conformity with section 12(8) of the 2010 Act serving to bring the fact of registration, and the existence of a right to challenge it, to the attention of such persons. So far as exercise of such right is concerned, we are of opinion that it is necessary for a would-be challenger to be able to instruct an interest in order to ground a challenge to first registration, and that this applies whether the would-be challenger is a person to whom notice is given under section 12(1) of the 2010 Act or a person who otherwise is aggrieved by the registration of the croft to which the notice relates. But what constitutes a sufficient interest in this regard, and have the Applicants, in their pleadings, demonstrated a sufficient interest to entitle them to an inquiry into the facts in their respective challenges to the first registration of croft 1A Tolsta Chaolais in the Crofting Register? In addressing that second question, we make the assumption that if there were here to be a proof before answer, then the Applicants would succeed in proving all of their averments; we would be justified in dismissing their applications after debate only if we were satisfied that, having proved all their averments, they would still as a matter of law be bound to fail.

Interest and standing

[23] Mr Macaulay made clear that he was not submitting that just anyone could enter the process to challenge a registration; the class of persons who might do so was not without limit, and establishing the membership of that class required the application of “pragmatic common sense” to the particular set of circumstances under consideration. Under reference principally to dicta in Axa General Insurance Company Ltd v Lord Advocate 2012 SC (UKSC) 122 and Walton v Scottish Ministers 2013 SC (UKSC) 67, he argued that we should, in ruling on the Applicants’ entitlement to challenge the first registration of croft 1A Tolsta Chaolais, adopt the approach developed by the Supreme Court of applying what he characterised as the less restrictive test of “standing” (locus standi) rather than a test of interest. We were also referred in this context to the decision of the Inner House in The Christian Institute and Others v Scottish Ministers (reported at 2016 SC 47). Mr Kermack’s robust rejoinder to this submission was that the concept of standing was relevant only where the supervisory jurisdiction of the courts was being invoked in matters of public law and in the nature of judicial review, and had no place in relation to a matter of purely private law between landlord and tenant, which in his submission this was. The location of the boundaries of a particular croft was not a matter of public law or even of public interest.

[24] We do, of course, accept that crofting tenure is a form of leasehold, albeit one unlike other forms of leasehold tenure in many respects: Sutherland v Sutherland 1986 SLT (Land Ct) 22 at page 23F. One of the respects in which it differs from other forms of leasehold tenure is that, as was noted by the Land Court in the case last mentioned at page 24C,

“even where a crofter purchases his landlord’s interest and thereby becomes owner of his croft, it still remains subject to compulsory reletting so, to that extent, his new ownership is also controlled with a view to maintaining a pool of crofting land”.

Maintaining a pool of crofting land is perceived to be a public good and one of the general functions conferred by the crofting legislation on the Commission is that of promoting the interests of crofting: section 1(2)(a)(ii) of the 1993 Act. The status of land as croft land attaches independent of the will of the landlord and the tenant, and can be removed only by means of a successful application to the Commission (decrofting) or to the Court (resumption). We do not discount the possibility that there might be circumstances in which a member of the crofting community in the locality may be able to demonstrate a sufficient interest to challenge a first registration notwithstanding that his own property rights and interests are not directly affected thereby. We might posit the example of a part of a croft with substantial development value if it could be freed from crofting controls. Were the tenant, in collusion with the landlord, in first registering his croft, to represent it as not including the part with development value, that part would, after registration, at least on the face of it, appear not to be croft land. The failure of the tenant to include that part of his croft in his registration might not concern the occupiers or owners of the adjacent croft or land, but it would seem to us to be at least arguable that, in such circumstances, other members of the crofting community might be able to demonstrate an interest to challenge the registration on the basis that the loss of that land from crofting would be detrimental to the interests of crofting in the locality. That said, however, and as we shall go on to explain, that was not, at least as we understood their submissions, the gravamen of the Applicants’ complaints about the Respondent’s registration, and it is not obvious to us that, in the circumstances of this particular case, anything turns on whether we apply a test of interest or of standing, the critical distinction to be made either way being, as we see it, essentially that made by Lord Fraser of Tullybelton in the “Fleet Street Casuals” case cited to us by Mr Kermack, between “the desire of the busybody to interfere in other people’s affairs and the interest of the person affected by or having a reasonable concern with the matter to which the application relates”: R v Commissioners of Inland Revenue ex p. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617.

The Applicants’ challenge to the registration

[25] Croft 1A Tolsta Chaolais, as registered, consists of five discrete and separate areas of land, situated along the estuary and shoreline. It was explained by Mrs Jess that crofts 1A, 1B and 1C Tolsta Chaolais had originally been one croft, which was divided into three by her great-grandfather. The scheme of division adopted was intended to ensure that his two daughters and son each obtained a croft with a fair share of each of the various different qualities of land represented within the original unitary croft. Mrs Taylor and Mrs Jess were born and brought up on croft 1B Tolsta Chaolais, of which Mrs Taylor was formerly the tenant, and crofts 1A and 1C Tolsta Chaolais in the past had been tenanted by relatives of theirs. They advanced in their pleadings a number of criticisms of the boundaries of croft 1A Tolsta Chaolais as they had been registered, derived from their own personal knowledge, the detail of which it is unnecessary for present purposes to relate at great length. The points made by Mr Macaulay covered substantially the same ground. He had in his youth assisted in working all three of the crofts, the tenants of which were also relatives of his.

[26] Put briefly, the Applicants contended firstly that the most easterly of the five areas of land which had been registered as part of croft 1A Tolsta Chaolais, which lies on the opposite (east) side of the estuary from the other four parts, has been understated in its extent. They explained that historically each of crofts 1A, 1B and 1C Tolsta Chaolais had an area of land situated on the east side of the estuary. The Interested Party had taken in part of what was properly part of croft 1A when he purported to enclose the part of croft 1C situated to the east of the estuary. The registration of croft 1A reflected how the land situated on the east side of the estuary had been fenced rather than the true or historic position. Secondly, they complained that the track which turns off the public road leading to the slipway between the stackyard of croft 1B and the croft house pertaining to croft 1A (the exterior of which is familiar to parents with young children as the “Katie Morag” house in the popular television series adapted from the books of Mairi Hedderwick) and then continues in a broadly south westerly direction, parallel with the shoreline, to provide access to the westernmost parts of the three crofts, had been widened by the Interested Party. Whereas previously, the track extended over land forming part of croft 1A and land forming part of croft 1B to the extent of one half each, the Interested Party’s actions had resulted in the track encroaching further into land forming part of croft 1B, which the registration of croft 1A did not reflect. We would comment in passing that whilst the Applicants placed some emphasis in their submissions on the status of the track as a public right of way, the Crofting Register is not concerned with such matters, and taking as true what the Applicants say about the track being a public right of way, it is not obvious to us why it should make any difference to the wider public, in the exercise of such right, upon which croft the track is depicted in the Crofting Register as being situated. Thirdly, the registration of croft 1A incorrectly took in a small area of land situated between the curtilage of the “Katie Morag” house and the slipway that properly, through immemorial usage, formed part of the public turning area at the end of the public road. Fourthly and fifthly, a roughly rectangular area of land situated above the track that runs in a south westerly direction parallel to the shoreline is said to have been wrongly excluded from the registration of croft 1A (the agreement amongst the tenants of crofts 1A, 1B and 1C Tolsta Chaolais has that area of land as part of croft 1B) and an irregularly shaped area of land further along but below (i.e. on the shore side of) that track had been registered as part of croft 1A when it properly formed part of croft 1B. Sixthly, a small (on the ground enclosed by a wall) area at the south-eastern corner of the southernmost of the five areas of land which had been registered as part of croft 1A was in fact part of croft 1B, with the southern boundary of that southernmost part of croft 1A extending in a straight line from east to west, and not, as depicted in the registration schedule, protruding further southwards at that corner to enclose that small walled area.

Discussion

[27] These two challenges to the first registration of croft 1A Tolsta Chaolais in the Crofting Register raise in stark form a difficult and interesting issue of principle which has not, hitherto, been the subject of sustained judicial analysis. The Applicants contend that the boundaries of croft 1A Tolsta Chaolais as they were registered by the Respondent in the Crofting Register are incorrect, in the sense that they do not reflect the true or historic position. The Respondent and the Interested Party acknowledge that the boundaries of croft 1A Tolsta Chaolais as they have been registered differ in various respects from that true or historic position, explaining that what has been registered proceeds on the basis of agreement amongst the tenants of crofts 1A, 1B and 1C Tolsta Chaolais as to their respective boundaries and reflects the long established position on the ground. The boundaries as agreed suit their purposes better from the perspectives of stock management and making use of the existing fencing. The submission on behalf of the Interested Party was that if all persons having an interest which would have entitled them to challenge the boundaries of a croft were content with what had been registered, then once that croft was entered in the register, the boundaries as registered would, going forward, be its boundaries, regardless of what the true or historic position may have been. In support of that proposition, Mr Kermack cited section 3ZA(2)(b) of the 1993 Act, which provides that for the purposes of the 1993 Act, where a holding situated in the crofting counties is registered in the Crofting Register, the land which comprises the croft is determined by the description of that land in the registration schedule of the croft.

[28] The statutory provisions offer little by way of guidance as to in what circumstances, and indeed in pursuit of what ends, we are to exercise the powers conferred on us by section 14(4)(a) of the 2010 Act to make an order that an entry in the register relating to a croft be removed or by section 14(4)(b) of the 2010 Act to make an order that an entry in the register relating to a croft be modified. We earlier reserved our opinion as to whether it is within our powers, on an application under section 12(1) of the 2010 Act, to make an order under section 14(4)(a) of the 2010 Act that an entry in the register relating to a croft be removed due to the occurrence of an irregularity in the registration procedure. It similarly is not made explicit in the legislation that in exercising our powers under section 14(4)(a) or (b) of the 2010 Act, our function is to (as it might be put) “uphold” the true or historic boundaries, but given that the legislation does expressly contemplate that there may be challenges to first registration which raise questions as to the boundaries of the croft, it is difficult to conceive of what grounds of challenge there might be other than that the boundaries as registered do not reflect some status quo ante, upon the restoration of which the person who has applied for an order under section 14(4)(a) or (b) of the 2010 Act is entitled to insist.

[29] We think this reading of section 14 of the 2010 Act is supported by the terms of sections 14(5) and 14(6) of the 2010 Act. Section 14(5) provides that where section 14(6) applies, the Court must, if making an order that the entry in the register relating to the croft be modified, declare the boundary of the croft to be that which, in all the circumstances, it considers appropriate. Section 14(6) of the 2010 Act applies where – (a) the application challenging the registration raises a question as to the boundaries of the croft; and (b) the evidence available to the Court is insufficient to enable any boundary to be clearly determined. As such, it echoes section 53A of the 1993 Act, inserted by the Crofting Reform etc Act 2007, which confers on the Court the same power where an application is made to determine a question under section 53(1)(c) of the 1993 Act as to the boundaries of a croft or of any pasture or grazing land a right in which forms part of a croft. The corollary of the provision that where section 14(6) of the 2010 Act applies, the Court must, if making an order that the entry in the register relating to the croft be modified, declare the boundary of the croft to be that which, in all the circumstances, it considers appropriate must, in our view, be that where section 14(6) does not apply, which we take to mean where the application challenging the registration raises a question as to the boundaries of the croft and the evidence available to the Court is sufficient to enable any boundary to be clearly determined, the Court has no power instead to declare the boundary of the croft to be that which, in all the circumstances, it considers appropriate. In other words, where the evidence available to the Court is sufficient to enable any boundary to be clearly determined, it is the duty of the Court to recognise that boundary and give effect to it in its order under section 14(4)(b) of the 2010 Act.

[30] The paradigm example of an application challenging a first registration which raises a question as to the boundaries of the croft is that of where an area of land has been registered as forming part of one croft and the landlord, crofter or the owner-occupier crofter of an adjacent croft contends that it properly forms part of the adjacent croft. This Court has, over the decades, required to adjudicate in many disputes as to whether an area of land properly forms part of one croft or another. In many such cases, there has been little or nothing by way of documentary evidence in the form of maps or plans to confirm where the boundaries lie, and before the enactment of section 53A of the 1993 Act, the Court had to rely on the oral testimony of village elders and the store of collective folk memory to resolve these disputes. Frequently, the origin of the dispute was that when the croft came to be enclosed, the fence could not, for practical reasons, be erected on the true boundary. Whilst this would be known to the crofters of the time, later generations of crofters, and particularly those with no familial link with the crofters of the past, may have tended to make the mistaken assumption that the line of the fence marked the boundary. With the inexorable passage of time and the loss of the older generations of crofters and their replacement, in many instances, by persons who, like Ms Berrill, have no access to such sources of knowledge, the evidence available to the Court about boundaries became increasingly patchy, which is why the power conferred on it by section 53A of the 1993 Act was considered to be a useful addition to the Court’s armoury. It was, at least in part, with the objective of making evidentially difficult and costly litigations about croft boundaries a thing of the past that the call went up for the establishment of a definitive, map-based register, which call was answered with the introduction of the new Crofting Register.

[31] The process of migration of crofts onto the Crofting Register inevitably has brought to the surface a number of disputes as to croft boundaries, and in the paradigm situation referred to in the previous paragraph, there is no room for doubt as to the interest of the landlord, crofter or the owner-occupier crofter of an adjacent croft who contends that the registration has taken in part of what he considered to be his croft to challenge that registration. This is not such a case, and we are here dealing with a problem of the penumbra. Mr Macaulay’s personal knowledge of the crofts at 1A, 1B and 1C Tolsta Chaolais extends all the way back to the time in the early 1950s when he first assisted family members in the working of those crofts. The tenancy of croft 1C Tolsta Chaolais remained within his family until the 1990s, but as of today he himself has no subsisting crofting or property interests in Tolsta Chaolais. He sought to rely, in establishing a practical interest to challenge the registration, on his situation as a regular visitor to the area. He argued, under reference to the Occupiers Liability (Scotland) Act 1960 (“the 1960 Act”), that as such a visitor, walking about in the area, he was entitled to know who was the registered occupier of every last inch of croft land in Tolsta Chaolais, and that his rights in this regard would be infringed if areas of land which were properly part of croft 1A Tolsta Chaolais were not included in its registration. Mr Kermack, in response to that submission, directed us to the decision of Lord Uist in Leonard v The Loch Lomond and the Trossachs National Park Authority [2014] CSOH 38, in which his Lordship affirmed the proposition that an occupier of land is not expected to provide protection against an obvious danger on his land arising from either a natural or an artificial feature on the land. It did seem to us that this submission was beside the point: the real issues, which Mr Kermack did not address, were whether Mr Macaulay possessed any such absolute right to know in the first place, and even if he did, whether it mattered that a particular area of land was registered in the Crofting Register as part of one croft rather than another or was not registered as part of any croft at all. Mr Macaulay cited no authority for his proposition that he had any such absolute right to know, and we do not consider that he succeeded in making out the case for its existence. In any event, once a croft has been registered in the Crofting Register, its boundaries are, for the future, as therein described, and if an area of land has been excluded from a registration of a particular croft, all that legitimately may be taken therefrom is that it does not form part of that registered croft. It may form part of an as yet unregistered croft, or of a common grazing, or it may be non-croft land. Its non-inclusion in the Crofting Register does not mean either that it is ownerless or that it is unoccupied. We recognise that one of the consequences of the scheme of potentially piecemeal registration permitted by the 2010 Act may be that where the areas of land registered by neighbouring occupiers do not meet up, slivers or small islands of what had hitherto been croft land may fall into a seeming “no-man’s land” from the perspective of crofting tenure, but it is important to recognise that such areas do not thereby become res nullius.

Conclusion

[32] Whilst Mr Macaulay, with his invocation of the 1960 Act, did attempt to qualify some practical interest for him in the outcome of the registration of croft 1A Tolsta Chaolais in the Crofting Register, Mrs Jess made no such effort. Although she and her sister retain a property interest in Tolsta Chaolais as the owners of the decrofted house site which formerly pertained to croft 1B Tolsta Chaolais, she did not argue that any of the errors which they had identified in the boundaries of croft 1A Tolsta Chaolais as registered impacted upon them in that, or indeed in any other, capacity in any material way. She periled her position squarely on the proposition that the Crofting Register as a public register should reflect the true or historic boundaries of the crofts which her forefathers had fought for and she spoke powerfully and eloquently in support of that position. She understandably bridled at Mr Kermack’s characterisation of the Applicants as mere busybodies and for our part, whilst, as we have related, that term has a history of usage in the relevant case law, we do not think that, in the particular circumstances of these applications, they deserve to be so labelled. Although we have, ultimately, come to the view that the Applicants have not averred in their pleadings a sufficient interest to challenge the registration, we do not consider that their challenges were in any way either frivolous or vexatious, and we acknowledge that they served to ventilate a difficult and important legal issue. We also recognise that in the crofting context, history is important, and that even though the Applicants no longer have crofting interests in Tolsta Chaolais, they remain in a real sense part of that community and consider themselves to be custodiers of its history, and as such to be under a duty to make effort to ensure that the contents of the new Crofting Register reflect and honour that history.

[33] All that said, however, in our view, the legislation, properly construed, strikes a balance between the “purist” approach to croft boundaries advocated by the Applicants, and the somewhat more pragmatic approach enjoined by the Interested Party. We accept that the process of registration was not intended by the legislature to sanction the entire reorganisation of townships in such a way as to by-pass the existing statutory procedures for so doing, but equally we do not think that it was intended to have the effect of disrupting de facto boundaries, often long established on the ground, and with which all of the persons having a live practical interest in the location of those boundaries are content, in favour of de iure (true or historic) boundaries advocated by persons possessing no such live practical interest. In a contest between de facto and de iure boundaries where both parties have an interest in the required sense and the evidence available to the Court is sufficient to enable the boundary to be clearly identified, it seems to us that we have no discretion to declare the boundary of the croft to be that which, in all the circumstances, we consider appropriate, that power being available to us only where the evidence available to the Court is insufficient to enable the boundary to be clearly determined. The true or historic boundary thus will prevail where a person having an interest to do so challenges a registration and the evidence available to the Court is sufficient to enable that boundary to be clearly determined. Here, however, the Applicants do not possess any such live practical interest in the demarcation of the boundaries of croft 1A Tolsta Chaolais, and their challenge, were it to be upheld, would involve the disruption of an established pattern of occupation and fencing with which the persons who actually occupy crofts 1A, 1B and 1C Tolsta Chaolais have confirmed they are content. In our view, it is both implicit in the legislation and consonant with the approach of the common law that a person who seeks to challenge a registration must demonstrate that he or she has a sufficient interest to do so. We do not consider that the Applicants have set out in their pleadings a sufficient interest to challenge the registration of croft 1A Tolsta Chaolais, and accordingly, we hold that the preliminary pleas for the Interested Party fall to be upheld and the Applications dismissed.