Decision of the Scottish Land Court

Duncanina MacArthur (Applicant)
v
Crofters having rights in Balinoe Common Grazings (Respondents)

Case reference SLC/119/16
before
Lord Minginish, Chairman
15 March 2019

Introduction

[1] This was a challenge to an entry in the Crofting Register brought by Mrs Duncanina Macarthur of 7 Balinoe, Tiree, under sec 14(4) of the Crofting Reform (Scotland) Act 2010 in which she sought to challenge the registration of Balinoe Common Grazings in several respects, viz (i) that part of her croft at 7 Balinoe had been included in the common grazing as registered, (ii) that an area of land truly belonging to Balemartine Common Grazings had been wrongly included, (iii) that an apportionment of part of the common grazings which she had been granted in July 1978 was not shown on the Register, and (iv) that certain other areas had been wrongly excluded from the grazings as registered.

[2] The Crofting Commission (“the Commission”), whose responsibility it is to register common grazings in terms of sec 24(1) of the Crofting Reform (Scotland) Act 2010, lodged answers which made it clear that they were willing to deal with the matter of the unregistered apportionment (one of several which had not been registered) and on 8 December 2017 the Court received adjustments from the applicant’s agents which made clear that the only matter which then remained in issue was the wrongful inclusion of part of the applicant’s croft in the common grazing. The Commission have stated that they have no position in relation to that matter. No one else lodged answers to the application.

[3] After a long period of delay, on 4 December 2018 the Court received confirmation from the applicant’s agents that the apportionment had been removed from the registered extent of the common grazings on the Crofting Register and that this issue had, therefore, been satisfactorily resolved by the Commission, as they had promised to do.

[4] On 14 December 2018 the Court issued its order that the entry in the Register be modified to exclude the part of croft 7 Balinoe which had erroneously been included. All that therefore remains to be dealt with now is the question of expenses.

[5] The applicant seeks her expenses on the view that the application was necessitated by mistakes made by the Commission when registering the common grazing.

[6] In their answers, the Commission describe the lengths they went to in order to ensure that the entry to be made in the Crofting Register was correct. They prepared application packs for this and five other common grazings on Tiree. On 22 July 2014 they issued those to the landlord’s factor and to Tiree Community Development Trust in advance of public meetings to be held at Tiree Rural Centre on 20 and 21 August 2014. Large scale maps of the grazings which had no Grazings Committees in office (including Balinoe) were available to view at the Rural Centre from 15 August. Said meetings were advertised in the local newspaper, An Tirisdeach.

[7] The map for this common grazing was subsequently adjusted and the adjusted map approved by the landlord on 10 June 2015. It was submitted to Registers of Scotland, with an application to register the grazings in the Crofting Register, on 11 December 2015 and a Certificate of Registration was issued by The Keeper of the Registers on 14 December. Notification of the registration was then sent by the Commission to various parties having an interest, including the present applicant. It subsequently, in or around March 2016, came to light that a “planned scheme” of apportionment had been devised but never finalised in or around 1978.

[8] As to the reason for the wrongful inclusion of part of croft number 7 in the common grazing, the Commission explain that they had not seen the plan on which the applicant relied for the purposes of the present application before lodging the application for registration. They had not, therefore, made any mistake in relation to that map, as by overlooking it or misrepresenting its terms.

[9] The applicant, for her part, says that she had no opportunity to view the map of the area proposed to be registered when it was on display as aforesaid. That inability is not explained but she says the Commission should have posted a copy to each shareholder. She accepts that the Commission did not have sight of the plan on which she relied to argue that part of her croft had been wrongly included in the common grazing.

Decision

[10] We are not persuaded that we should make an award of expenses in this case. That is partly because the nature of the Commission’s function when registering a common grazing is purely administrative and it does not seem to us that the principle that expenses should follow success, on which the applicant’s agents rely, necessarily applies. This was not a situation in which the Commission were taking a position which was subsequently found to be wrong. In saying that we have in mind cases such as appeals from decisions of the Commission in terms of sec 52A of the Crofters (Scotland) Act 1993 in which expenses are usually awarded against the Commission when an appeal is successful. That is very different from the position here, where the Commission were acting on the basis of information supplied to them by the landlord, crofters and anyone else having an interest which turned out to be incomplete.

[11] So far as the apportionments were concerned, the Commission did not come to know of their existence until 14 March 2016 when a crofter at Barrapol brought them to their attention. That might seem surprising but we understand the reason to be that the apportionment scheme devised in 1978 had never been finalised. When the scheme came to light they immediately undertook to have the apportionment orders finalised and given effect to in the Crofting Register, something which they duly did.

[12] So far as the wrongful inclusion of part of the applicant’s croft is concerned, the Commission were unaware of that until the present application was raised. That brings us to the applicant’s own responsibilities. It is not explained why she was unable to avail herself of the opportunity to inspect the maps which were on display at the Rural Centre in the days before the public meetings or why she was unable to attend these meetings. Had she done so the errors would have come to light and been corrected before the registration application was lodged. In those circumstances it seems unfair to blame the Commission for getting it wrong. Further, we do not think it was unreasonable for the Commission to carry out the pre-registration consultation in the way they did. To say that they ought to have copied the plans to each shareholder individually would be to impose an undue administrative burden on the Commission. We do not think they were under any duty to do so.

[13] For these reasons we have refused the applicant’s motion and found no expenses due to or by either party.