THE COURT

(Lord McGhie, Sheriff R J MacLeod, Mr J A Smith)

REFERENCE by CROFTERS COMMISSION UNDER Sec 53 Crofters (Scotland) Act 1993

(Application SLC 121/11 – Order of 3 August 2012)

CROFTS – COMMON GRAZINGS – REFERENCE BY CROFTERS COMMISSION – APPORTIONMENT – WHETHER GRAZING SHARE CAPABLE OF BEING TREATED AS STAND-ALONE CROFT – WHETHER ASSIGNATION OF GRAZING SHARES WAS RESTRICTED TO CERTAIN ASSIGNEES – ASSIGNATION TO NON-CROFTER – CROFT UNIT – EFFECT OF PART PURCHASE – PURCHASE OF LAND EXCLUDING GRAZING SHARES – STATUS OF GRAZING SHARE – PARTY ENTITLED TO RENT – DEEMED TENANCY – EFFECT OF PART AND PERTINENTS CLAUSE – COMPETENCY OF PART RENUNCIATION – RENUNCIATION OF GRAZING SHARE – EFFECT OF DE-CROFTING – NATURE OF GRAZING RIGHTS – “HELD OTHERWISE” – EQUIVALENCE TO SERVITUDE – CHANGE OF LANDLORDS – DISPOSSESSION – CROFTERS(SCOTLAND) ACT 1993 Sec 3(4), Sec 3(5), Sec 7, Sec 8, Sec 8(7), Sec 9, Sec 12, Sec 20, Sec 23, Sec 47(10), Sec 53, Sec 58.

This was a reference by the Crofters Commission under sec 53 of the Crofters (Scotland) Act 1993 raising some 30 related questions about the implications of potential division of crofts by way of purchase of parts and about the nature and status of grazing shares. Each question is set out fully in the Note below with the Court’s answers.

Correction

In our Note of 3 August 2012 we drew attention to an error in the Queen’s Printer’s copy of the Crofters (Scotland) Act 1993 in relation to sec 12. It is now clear that although there was indeed an error in that copy, the information we received was misleading. Following formal enquiry by our Principal Clerk, a correction slip has recently appeared on the official web site version of the Act. Although the matter now seems clear, we do not want to risk adding to the confusion by purporting to give an authoritative version. Reference should be made to the correction slip.

However, for completeness, we refer to our remarks at paragraph [64] of the Note and now express our understanding that the explanation given to us at the hearing had things the wrong way round. What we understood to have been omitted in error had, apparently, been initially included in error. The Queen’s Printer had not been alerted to a late deletion. The original print included, at sec 12(3)(b)(ii), the words “(ii) comprises the whole croft, other than any right in pasture or grazing which has not been so apportioned: or”. It seems these words should not have appeared.

We understand that the explanation for the initial difficulty was that the provision in question had been suggested by the Scottish Law Commission to clarify matters but, at a late stage in the Parliamentary process, it had transpired that there was litigation in progress on the issue and it was considered inappropriate to risk making any substantive change in the law. The Act was a consolidating statute. The Queen’s Printer had not been alerted to the change.

As we said in our Note, this is a matter which would require further investigation if it was ever of importance in a disputed case. We do not think the correction has any bearing on the substantive conclusions we reached in the reference SLC/121/11.

The appended to the order of 3 August 2012 is as follows:

[1] This is a reference by the Crofters Commission (now the Crofting Commission) under section 53 of the Crofters (Scotland) Act 1993. The reference raises almost 30 inter-related questions bearing on the subject of rights in common grazings. (The detailed questions are set out below under the heading “Answers to questions”). When it was presented, we had a concern that the issues might have been raised in the abstract: that is, without reference to any live current disputes. While we recognise the desire of a public body such as the Commission to get answers to all potential problems, we do not accept that the provisions of section 53 were intended to be wide enough to compel the Court to answer academic questions. We are to consider questions “arising”. However, we were assured that all the questions arose out of currently disputed cases and schedules were submitted giving details of the current applications to the Commission which were said to necessitate answers to the questions posed. Intimation was given to the parties listed. Some responded by written submission. Mr Kennedy, from Coll, was the only person who made representations at the hearing.

[2] The Commission had taken the view that it was not for them to advance answers to their own questions. However, the function of a Court is to resolve disputes and not to explain the law. It was plain that for this Court to function as a court it would be necessary to hear positive submissions of one sort or another. We asked the Commission for their views on the questions raised. They instructed Sir Crispin Agnew, QC, to present a set of answers and to support them with submissions. In recognition of the importance of the questions raised, we arranged for Mr Iain Maclean, Advocate, to appear as an amicus curiae; in other words, to assist the Court by scrutinising all the arguments advanced and presenting counter-arguments when he thought this appropriate in order to ensure that all legal arguments were fully ventilated in an unbiased way.

[3] We are satisfied that the various issues were, indeed, fully ventilated. However, it should be said that, in specific cases, the proper decision may well turn on aspects of detail. Our broad answers may not necessarily suffice in all cases. For example, although Mr Kennedy attempted to address only the general questions posed and realised that we could not deal with the specific issues which might arise in relation to the grazings at Arinagour, on Coll, he said enough to indicate that there were some unusual features which might require to be dealt with on their own. As will be seen, our answers in relation to common grazings relate to common grazings as developed at common law. We did not hear argument as to any specialities of grazings created under statutory provisions such as the Land Settlement (Scotland) Act 1919. As will be seen we have also concluded that the important question of whether the right given under sec 12 included right to buy a grazings share must also be regarded as academic. This is an issue which does not arise for decision by the Commission. We have considered the arguments advanced but have decided that it is inappropriate to express a concluded view.

[4] We had the advantage of written answers or contentions from Sir Crispin, instructed by the Commission, from Mr Kennedy, and from Mr Brown and Mr Jackson, who were parties to a recent case before the Court with a continuing interest in the matter of a disposal of a “stand alone” grazing share. We heard debate in Edinburgh on 12, 13 and 14 June 2012 when Sir Crispin provided further written submissions and full oral submission. Mr Kennedy made full submissions in support of his written answers and Mr Maclean dealt with various issues requiring to be taken into account.

Authorities

Many authorities were cited dealing with a variety of minor points. The main cases referred to in this Note are:

Bowers v Kennedy 2000 SC 555
Brown v Jackson – SLC/100/10 - decision of 24 Nov 2010
Castle &Others v Philp – 2009 SLCR 21
Crofters Commission v Arran Limited 1996 SLCR 103
Department of Agriculture v Sutherland Estates 1932 SLCR 35
Fraser v Spencer 2001 SLCR 116
Gourlay v MacAlpine-Downie and Ors (the Knapp case)SLC-136-03 decision of 4 Dec 2009
Gordon v Grant 1850 13D 1
Kennedy v Stewart & Others 2008 SLCR 222
Lamont v Kennedy & Others SLC/160/09, decision of 8 Sept 2010
MacArthur v Trustees of Tenth Duke of Argyll 2000 SLCR 94
Macdonald v Prentice’s Trustees 1993 SLCR 97
Macdonald v South Uist Estates 2009 SLCR 49
MacInnes v Trustees of the Tenth Duke of Argyll SLC/86/96
Mackay v Crofters Commission 1996 SLCR 72
McMillan v County of Inverness 1949 SC 77
Morrison’s Exec. v Rendall 1986 SLT 227
Peart v Legge 2008 SC 93
Ross v Graesser 1962 SC 66
Scottish Ministers v Pairc Tr. Ltd and Ors 2007 SLCR 166
Trustees for Halistra Common Grazings v Lambert 1996 SLT (Land Ct) 7
Winston v Patrick 1982 SC 246

Statutes

Crofters Holdings (Scotland) Act 1886
Small Landholders (Scotland) Act 1911
Contract (Scotland) Act 1997
Crofters (Scotland) Act 1955
Crofters (Scotland) Act 1961
Crofting Reform etc. Act 2007
Crofting Reform (Scotland) Act 1976
Crofters (Scotland) Act 1993 (the 1993 Act)
Crofting Reform (Scotland) Act 2010
Interpretation Act 1978
Law Reform (Miscellaneous Provisions) (Scotland) Act 1985
Prescription and Limitation (Scotland) Act 1973

Textbook or other material

Rankine on the Law of Leases in Scotland, 3rd Edition
Erskine II VI 4
Gretton and Reid Conveyancing 4th Ed.
Hansard 1975
Bennion Statutory Interpretation 5th Ed.

For convenience, and except where the context is clearly to a different effect, we shall use the term “landlord” to refer to the original owner of the inbye croft and “landowner” to refer to the owner of the common grazings. We use the term “owner/occupier” to describe a former tenant who has bought all or part of his croft although it now has a slightly more specific definition in terms of sec 19B. All references to statutory provisions are to the 1993 Act, as amended, unless the context is otherwise clear.

Submissions

[5] The written submissions may be consulted for their terms. We also heard very full examination of all the issues by Sir Crispin in support of the answers he proposed to the various questions. He stressed that he was not advancing a position on behalf of the Commission but simply seeking to assist the Court by explaining the issues bearing on each question. We also heard a helpful analysis of the key issues from Mr Maclean. This material has, of course, been at the heart of all our deliberations. Neither attempted to explore the policy behind the various statutory provisions under discussion, concentrating on the language and legal principles said to underpin them. We refer to the main points of these submissions in our discussion below. Mr Kennedy provided written answers but he elaborated these in his submissions and explained their relevance to his interests in Coll. As he is plainly a party with a potential patrimonial interest in the outcome of the reference, we have tried to record, below, his main submissions before us although his written submissions are available for reference.

[6] Although ample justification for the reference became apparent as the complexity of the submissions unfolded, it is perhaps worth noting that Sir Crispin advised us that the reference was actually triggered by the decision in Castle v Philp. He suggested that it raised a number of issues in relation to grazing rights. However, we understood him, subsequently, to accept the propositions set out at paragraphs [13] to [17] of the Note in that case and it appears that the difficulties arise, essentially, from the failure of the statutory provisions to deal with, or make clear, the underlying issues of principle on which they are based.

Special case

[7] Sir Crispin opened by suggesting that the issues raised merited attention from the Inner House in order to settle matters authoritatively and that we should state a special case in terms of the Scottish Land Court Act 1993 sec 1(7). Our initial reaction was that it would be open to the Commission – or any other party – to request such a case, if they saw fit, in light of our responses to the questions raised but that this court should simply express its views on matters in the normal way. That said, there is one issue which has given us some concern. In certain respects the statutory provisions might appear to assume an understanding of underlying principle which is not consistent with that accepted by the Court in a series of decisions. The Court’s approach was not challenged by counsel before us but this possible conflict lies at the root of several problems.

[8] At the time when legislation was first directed at crofting matters, in other words, at the time of the 1886 Act, inbye crofts and common grazings were almost invariably held by the same landlords. The right given to a crofter to use the common grazings could readily be described as a pertinent of the croft. One rent was paid. If the crofter lost his croft, the right to use the common grazings would go with it. We are satisfied that in the normal case it would be misleading to talk of crofters holding a joint tenancy of the grazing land. They each individually had rights over it because of their status as crofters of an inbye holding. In CC v Arran the Court discussed the nature of these rights in order to determine whether a particular area of land had the status of common grazings. Certain views were expressed. In particular, the Court affirmed the proposition that grazing rights fell to be treated as a pertinent of the croft.

[9] In Castle v Philp, the Deputy Chairman, sitting as a Divisional Court, followed the logic of the Arrandecision. He held that the grazing rights were held in tenancy from the landlord of the croft. The owners of land subject to grazing rights were not to be treated as the landlords of part of the croft.

[10] It is apparent that this view of the law does not sit comfortably with all the provisions of the legislation. An obvious example is found in the provisions of sections 20 and 21. A power of resumption is given to a “landlord”. Indeed the concept of resumption is that the landlord takes back some property or right initially leased to a tenant. However, it is plain from sec 21(4) that the power extends to common grazings. It is obvious that Parliament intends it to be possible for the owner of common grazings to be able to institute proceedings to free the land from the rights of crofters. The Court has recognised that the provisions for sharing of market value require us to treat the reference to “landlords” as wide enough, in this context, to cover “landowners” and to allow “resumption” of the land and not simply the grazing rights.

[11] The concept of a right to graze over another’s land is well established at common law. But Parliament went further and made it possible for such a right to be converted, following the process of “apportionment”, to a right of ownership in the former crofter: sec 12(3)(b). No provision for compensation to the landowner was made. If the crofter came to buy the apportionment, payment would be calculated by reference to rent which would be due to the landlord of the croft. Where this was the same person as the owner of the common grazings, no difficulty would arise but if the estate had been split, the crofter would require to obtain title from someone who was getting no direct payment in exchange. Of course, in nearly every case, that person would have acquired the land subject to the crofter’s rights and the terms of acquisition would have reflected, expressly or implicitly, this feature of the crofter’s rights.

[12] The explanation for the confusion may simply be that Parliament did not anticipate modern developments where estates are split and common grazings, or parts of them, may have come to be held by different owners from the inbye crofts. Another possibility is that Parliament assumed that the grazing rights were rights granted by the owner of the common grazings to be held in tenancy and that the grazings owner was to be regarded as a separate landlord. However, in relation to the provisions relating explicitly to common grazings, Parliament did use the 2007 Act to amend references to a “landlord” of common grazings to an “owner”: see sec 49(7) and sec 50. This shows a recognition that the owner of a common grazings does not necessarily have the relation of landlord to the crofters. As we are satisfied that the approach taken in Castle v Philp is consistent with dicta in Ross v Graesser and with a tract of Land Court decisions since then, we consider it appropriate to deal with the present case on the basis that the Castle case was correctly decided. It is not appropriate to put parties to the expense of a special case on the basis of a possible approach which we, ourselves, have not accepted and which was not advanced in submissions before us. However, if Parliament did proceed on such an assumption, we accept that there may be some reasons for preferring it to the well established approach of the Court and if any party decided to seek a special case on any other ground it might be necessary to invite the views of the superior court on this issue as well.

Mr Kennedy’s submissions

[13] Mr Kennedy said, by way of introduction, that he attempted to view the matters as a straightforward crofter relying on the provisions of the Act. He stressed the role of the Commission under sections 1 and 2 and that the key provision was the definition of a croft in section 3. He touched on the historical origins of crofting, stressing that the landlords gave crofters grazing rights as part of their lease. If the lease was broken the right to grazing shares was also broken. It was significant that the relevant provisions of section 3(4) referred to such rights as “deemed” to be part of the croft rather than saying that they were actually part of it.

[14] Section 8(7) should be read as simply making it clear that the grazing right was part of a croft holding and to be included in any assignation of the croft. It was not to be read as intended to allow a grazing right to be treated separately as it was not possible to assign anything except a tenancy. This was supported by reference to section 23(5) and its heading. It clearly was not aimed at parts of a croft. Any renunciation had to refer to the whole holding. The importance of this could be seen from the criminal sanctions set out in sec 23(2).

[15] In Mr Kennedy’s submission the fundamental problem could be seen to arise from the repeated failure by the Commission to take action to compel the letting of vacant crofts. The deeming provisions were only intended to cover a short period and the many problems addressed in course of submissions on the reference simply would not arise in such a short period. When asked for clarification, Mr Kennedy made it clear that his submission applied where a crofter had bought his croft. The Act had not intended to create owner occupiers. If a crofter bought his croft, the holding became vacant and the Commission should have acted to compel reletting to a new tenant. The new owner could, he suggested, put in a nominee tenant to protect his own interests but the obligation was to let. This would have avoided the problem.

[16] Before moving from his introduction or pre-amble, to the substantive questions, Mr Kennedy made some other preliminary points. He suggested that the decision in Lamont v Kennedy might have been wrong because the crofter, Mrs MacLean, had not, in fact, notified the Commission of her purchase of the apportionment. The assignation should, accordingly, have been treated as covering the entire croft. The grazing right was attached to the land. He asked how it could have been converted to stand alone. Mr Kennedy also raised the question of crofters having bought crofts with servitudes over the common grazings. This would, he suggested, mean that the grazings landowner would be unable to resume any part of a common grazings. A landowner could only resume rights from a tenancy. He suggested another problem: if a landowner sold part of his estate, including crofts, with privileges and pertinents, and sold the common grazings to someone else, also with privilege and pertinents, how would anyone know who got what? There were different kinds of pertinents, but as a crofter, if he was buying a croft, he would not expect to get the grazing share as a pertinent. In some circumstances, therefore, the unit could be broken.

[17] A proposition which Mr Kennedy advanced at various points in the course of his submission, was that a landlord could do what he wanted to change the croft and its rights, subject to getting appropriate consents. For example, he could divide a vacant croft. He could add or remove a grazing share. With the consent of the tenant there were various other changes which could be agreed.

[18] Mr Kennedy then turned to deal with the questions raised in the reference with a view to clarifying or amplifying his written answers. We attempt to summarise his main observations in relation to each question.

Q1. No. A pertinent of a lease was a right which terminated with the tenancy. A grazing right was not a real burden. It would not appear in a title except as a “deemed” right. It was part of a lease and, on purchase, the lease terminated. He initially stressed that prior to 1976 a crofter could not purchase his croft. Section 3(5) was necessary to deal with the grazing share which could not be purchased. However, he accepted that a crofter might always have been able to purchase, of consent, and agreed that sec 47(10) would allow the landowner to resume. But, he contended that Parliament had not intended there to be any parts of a croft which were not rights of tenancy. The common grazings were not held in tenancy. The statutory conditions of crofting, in other words, Schedule 2, did not apply to the common grazings unless they had been apportioned.

Q2. The right to purchase was just a right to purchase land. He contended that the effect of sec 12(3)(b) was that common grazings could not be purchased unless the land had been apportioned. He subsequently revisited his submissions on section 3(4) but initially stressed that the grazing right was only a deemed part of the croft. It would not actually be physically part unless it was part of the croft in the Register or part of the landmass of the croft. He pointed out that in an IACS form it was necessary to distinguish land held as a croft and rights held in common grazings.

Q3. An apportionment could be bought but otherwise a share in common grazings could not. He thought that, in practice, the rent would be paid to the owner of the grazings. That owner would be regarded as the obvious landlord of the apportioned land. The rent might go to the landlord of the croft because the common grazings were burdened by the grazing right. He returned to stress the role of the Commission. If they acted properly the problems would not arise

Q4. Here again, Mr Kennedy stressed that the Commission should have put in a tenant so that this problem would not arise. But he thought that it would follow, from the decision in Lamont, that a deemed croft could be assigned and he had to accept that this had the legal effect of splitting the original croft. A deemed croft could be assigned with consent of the Commission to another crofter. His written submission stressed that sec 8(7) was purely to show that grazing shares were included. He did not think it could possibly mean that it allowed assignation of part of a croft. Under section 7 a crofter could renounce his croft and after that a deemed croft would be “held otherwise”. In other words any grazing share to be treated as a deemed croft would then be held by the landlord. There was nothing to allow the Commission to force the share back into crofting. If renunciation had been acted upon it would be effective: Morrison’s Execs. v Rendall.

Where shares were not held under the provisions of section 3(5) they were not held in tenancy but they could not be held in isolation. They had to be part of a croft held in tenancy. He referred to Pairc at [126] and to what was said about unallocated grazing shares in Macdonald v South Uist Estates at [120]. But if there was a deemed croft then some division was envisaged by Parliament and the deeming provision would allow the tenant to do everything the Act provided for in relation to crofts, subject to appropriate consent. If the Commission did not act appropriately, it would be up to the landlord to control any breaches of the Act. The landlord could apply to the Court to deal with the matter.

Mr Kennedy accepted the decision in Brown v Jackson. The deemed croft was back with the landlord so it was “held otherwise”. There was, in his submission, nothing in the Act to force a re-letting. It was up to Mr Brown how the share was to be used. Similar, he said, was the position on Coll where it was up to the landlord how to dispose of any vacant share. It would then be governed by section 47(10). The main problem was caused by the Commission’s failure to implement section 23. When a deemed croft was assigned it ceased to be a deemed croft because it was now held otherwise. Normally a grazing right would be part of the croft and if the croft was assigned the assignation would cover the whole including the grazing right. If a croft was bought, the separate deeming provision in section 3(5) would kick in. But, if a deemed croft was to have a proper status, it would need a boundary. There could be no boundary in a common grazing. Accordingly, he suggested, you could not have a deemed croft in a common grazing. In short, section 3(5) should be seen as just being a mechanism to give access to the grazing right until some of the other mechanisms of the Act were applied to it.

Q5. Mr Kennedy submitted that, if the owner sold his croft, he could assign the deemed tenancy to any other crofter, preferably a crofter in the same township or, if not, to a crofter in another township but he could not assign to a non-crofter. The Commission could direct where the vacancy should go, weighing all the factors, but it would need a good reason to withhold consent to an assignation to another crofter. A change of ownership could not carry the tenancy because the connection was severed by the purchase of the lease. If you cannot hold a share in tenancy in isolation, some change in terminology was plainly required to allow the Act to continue to apply to this part of the croft. But this should be regarded as just an interim arrangement while the Commission was performing its proper functions. In any event, if the shares were renounced, they would be back in the hands of a landlord and, thus, lost to crofting.

Q6. Mr Kennedy said that he agreed with the submissions advanced by Sir Crispin.

Q7. If there is a tenancy of land the landowner of that land must necessarily be the landlord. He stressed that the provisions of section 3(5) applied only to the specified person. If the right moved to any other person it would be “held otherwise”. So the provisions were not available to allow a re-let in isolation. There should never be a let to a non-crofter. He pointed out that a renunciation did not require consent. It was simply a matter of notification. It was purely contractual as between landlord and tenant.

Q8. There was, in Mr Kennedy’s submission, no provision for let of a grazing share. However, the Commission could let a deemed croft under section 23. This did not allow letting of a part in isolation. It had to be used as an enlargement of an existing croft. He explained that he had been provided with information from the Commission to the effect that from 2002 to 2009, some 214 grazing shares had been let, apparently in isolation. This, he said, should not have happened. It is convenient to note at this point that we were subsequently told that a number of these lets, though processed as separate units, had in fact occurred along with assignations of croft land or had been made to holders of croft land with the intention that they be united. However, it was clear that many of the 214 lets had indeed been made with a view to the grazing shares being held, divorced from any other croft tenancy.

Q9. He agreed with Sir Crispin in relation to Q9A but, under reference to 9B, repeated the contention that a share could not be let unless it was a deemed croft. If shares were vested in a landowner, he could give them to anyone who was a crofter. They would then fall back under the Act. He thought that if no suitable crofter was available, the landowner could let to an ordinary agricultural tenant. MacArthur v Trs of Tenth Duke was an example of a grazing let being let to such a tenant. He accepted that if there had been an apportionment then this was, itself, a deemed croft.

Q10. This question suggested that there had been a break in the link and accordingly a division or separation of the two parts of the croft. So, if the owner decrofted his tenancy, this would not cover the deemed croft. But otherwise, he said that if a crofter decrofted without purchasing, any decrofting would be expected to cover the whole croft including the grazing share. He thought this had been illustrated in Kennedy v Stewartpara [129]. Mr Kennedy’s belief was that the intention of the Act was to provide both land and security for crofters so there could be no bar to giving crofters more land. If someone purchased a croft, payment would be to the owner of the land. It was difficult to identify the mechanism for payment to a separate owner of common grazings. There was, he said, no provision for the Court to rent parts only of a croft. [It is convenient to note at this point that there is now such provision: sec 6(3)]

Q11 He agreed with Sir Crispin’s submission in relation to 11a. If the landlord of a vacant croft who owned the common grazing, decrofted the croft, any rights in grazings were then available to be incorporated into another croft if the landlord wished. If they were not wanted by a crofter in the township they could be allocated to a crofter from another township or under sec 47(1) to a non-crofter. This was entirely a matter for the owner of the land and did not need consent from the Commission.

Q12 Section 3(5) was expressly intended to cover the situation of a person who acquired his croft but not the grazing. But the deeming provision applied only to the initial person described in sec 3(5). Once that person took any step altering his relationship with the share it would be “held otherwise”. The problems all arose from the failures of the Commission in not taking steps to fill vacant crofts.

Q13. This was a complex matter and depended on particular circumstances. His submissions were intitially based on sec 51 with further reference to sec 23(7). It would always be competent for a landlord to enlarge a croft by adding grazing rights under that section. There was no need for any consent. On the Thursday morning of the hearing, we allowed Mr Kennedy to reopen his submission. The substantive additional point which he wished to make was to refer again to section 3(4). This provided that rights in grazings held “or to be held” were to be deemed to be part of the croft. It was clear from this provision that Parliament contemplated that such rights could be added at any time. There was no restriction to land already controlled by the Act. His written submission set out various examples. There was no need to rely on anything beyond sec 3(4). He repeated the proposition that the successors in title to the croft could control what happened in relation to rights in common grazing because the shares pertaining to a croft are vested in the owner of the inbye croft land. He suggested that this view of section 3(4) might conflict with dicta in Kennedy v Stewart but it fitted comfortably with the overall statutory picture. In particular, if a crofter was paying rent to include a grazing share, this showed that it was to be treated as part of a croft.

Discussion

[19] The submissions disclosed a variety of statutory provisions, principles of common law, and previous decisions of the Court which were said to be difficult to reconcile. It appears to us that the difficulties arise essentially from the statutory provisions extending crofters’ rights in relation to common grazings without any express reference to the concomitant rights or obligations of their landlords. The lack of statutory clarity was probably of no great significance when the crofts and common grazings land were all held by one estate and the rights of crofters were simply rights as tenants. Complications arise whenever there is a need to convert rights held in tenancy to rights of ownership. Parliament cannot be expected to provide in detail for every situation and it is far from unusual for statutory provisions to require considerable amplification by the courts. We touched briefly on these matters in Lamont v Kennedy at [29]. It is clear that Parliamentary provisions over-ride principles of common law but difficulties will inevitably arise if the legislation has assumed a principle in relation to some provisions which simply cannot be applied or cannot be applied consistently.

[20] The number of questions posed gives some idea of the extent of the problem. However, although we had to address thirteen distinct questions with various subheads, the discussion before us revealed certain underlying issues with a bearing on several if not all the questions. Sir Crispin stressed the importance of the proper construction of sec 3(4) and (5). In his submission the section had to be read consistently with the well established principle that the croft and its pertinents were a legal unit which remained a unit whether occupied or not. Other important points included the nature of a right to graze and the submission that, as it was not possible in Scots law to have effective rights to a stand-alone grazing share, any power to deal with grazing shares had to give effect to that principle. An important practical problem related to the issue of who should receive payment for use of grazing land or for that land when it had been apportioned. Another problem related to the potential gap between the rights which might be conveyed in property on a purchase and the rights enjoyed by a crofter as tenant. The former would normally be expected to take the form of a servitude and one particular difficulty was that a servitude right could be lost by prescription whereas a grazing right could, it was thought, only be lost by the statutory processes of decrofting or resumption or, in some circumstances, renunciation.

[21] The submissions we heard revealed difficulties of principle which are not easily resolved. However, not without hesitation, we have come to the following three conclusions. We think they are tolerably sound and that they provide a basis for consistent practical answers to the questions posed although we recognise that they leave some other questions unanswered.

(a) Sec 3(5) constitutes the rights or land in question as new independent crofts.

(b) Sec 8(7) has the effect of dividing the croft and each part continues to be subject to crofting legislation.

(c) A crofter holds his grazing right from the landlord of his croft and any purchase must, accordingly, be from that landlord.

We shall look at these propositions in turn.

Sec 3(5) creates new independent crofts

[22] It may be said, at the outset, that we do not accept Mr Kennedy’s theory that the intention of sec 3(5) was to provide for a short term situation to be brought to a head by the Commission forcing a re-let of the owner occupied croft. We think this issue must be approached on the basis that it was recognised to be potentially a long term situation. The provisions relate to the grazing share and not to the owner occupier’s own croft and the Commission have no power to compel the tenant of a croft to “let” it to someone new.

[23] We are satisfied that the plain intention of sec 3(5) was to allow a grazing share or apportionment which had not been purchased, to be treated as a separate independent croft. The language seems clear and we do not think that any underlying concept of the inbye croft and grazing share as a single unit can stand against the express provision that the right “shall be deemed to be a croft”.

[24] If support for this construction was needed it can be found in the passage cited by Sir Crispin from Hansard where the Secretary of State, Mr William Ross, explained that the provision meant that the “share or land is deemed to be a croft in its own right”: 16 December 1975 col 12. Our view of the plain meaning of the provision is important as it has various implications as to the wider intentions of Parliament in relation to grazing shares. In particular, we are satisfied that the intention of Parliament was to depart from the concept of an indivisible croft unit and allow the grazing shares to be dealt with separately.

[25] If Parliament had intended the share to be treated as if it remained part of a croft, it would not have been difficult to say so. It is clear that the provision gives no indication or hint of any intention to enforce a connection between the purchased croft and the un-purchased grazing right. It seems to say clearly that the rights or land are to be regarded as new units. They are to be deemed to be “a croft”. To say something is to be treated as “a croft” is wholly distinct in normal usage from saying that it is to continue to be treated as part of an existing croft. The situation may be contrasted with that of a crofter who does not buy all his inbye croft land. He will continue to hold the remaining portion in tenancy as part of the original croft. No explicit provision would be required in that situation.

[26] The treating of a grazing right as “a croft” plainly produces a change. Something which was formerly “part of the croft” is now to be treated as “a croft”. The contrast could hardly be clearer. We are satisfied that the use of the indefinite article is more significant than the reference to the “croft”. The grazing share was part of the croft and there is no reason why it should cease to be part of a croft simply because the main part had a new landlord – the owner occupier – and the tenancy of the main part was vacant. The need for sec 3(5) can be seen to arise from the vacancy of the inbye unit of which the grazing share was a pertinent, rather than from any uncertainty as to whether or not the grazing share could be treated as a croft. However, whatever the reason, Parliament has said it is to be treated as “a croft”. That is what must be done as far as it is possible to do so without absurd results.

[27] Sir Crispin stressed two points as relevant to the construction of sec 3(4) and (5). The first was the proposition that the croft and its pertinents were a legal unit which remained a unit whether occupied or not. The unit was subject to the Commission’s power to require it to be let. The second was the general prohibition on division of a croft in terms of sec 9. However, it appears to us that the emphasis on these propositions is distracting. Section 8(7) clearly contemplates a separation of inbye croft and grazing share. It shows plainly that Parliament was not concerned to preserve the original croft as an identifiable unit, at all costs. Accordingly, there is no justification for an inference that sec 3(5) falls to be read as if an intention to do so was a fundamental feature of the Act.

[28] It can, no doubt, be said that the notion of a grazing right as being a “croft” is an artificial one and it might be thought to follow that we should limit the concept as much as possible. However, it must not be forgotten that in the context of crofting legislation, the whole concept of a croft can be said to be an artificial one. In ordinary usage the word “croft” refers to a physical unit, namely, a small farm. But the statutory definition in sec 3 is essentially based on the concept of a holding. A croft is a piece of land of a particular description held in tenancy. In essence the deeming provision does no more than say that the relevant provisions of the legislation will apply to the grazing share when it is held separately from the inbye croft. There may well be circumstances where the application of the statutory provisions to grazings rights will lead to difficulties but that need not drive us to giving sec 3(5) a restricted meaning when its wording is so clear.

[29] As we shall see, Sir Crispin drew our attention to the financial implications of creation of new crofts. He referred to grants for housing. In relation to a grazing share it is not clear that Parliament would have had in mind the possibility of a tenant seeking to build on it. But it is certainly clear that there was an intention to treat an apportioned area as capable of purchase on its own: sec 12. No inference as to the financial implications can properly avail against this.

[30] It may be added that the concept of division of the croft into two separate crofts on the purchase of the inbye land only, appears to fit the scheme of the new provisions relating to owner occupiers to be added by the 2010 Act. Section 19B defines an “owner-occupier” as a person who owns a “croft”. This suggests an understanding of a croft as being an identifiable physical asset rather than as an item held in tenancy. In any event, the definition includes stipulations to the effect that the croft must not have been let since acquisition.. It can be assumed that the new duties would be intended to apply to all owner-occupiers. But if the unpurchased grazing share is to be regarded as part of the croft, people who had bought only the inbye land would not fit the new definition. Part of their croft would be let.

Section 8(7) has the effect of dividing the croft and each part retains crofting status

[31] It may be said, at the outset, that we do not accept Mr Kennedy’s contention that sec 8(7) was a provision included solely for avoidance of doubt to show that a grazing share could be included in any assignation of a croft. The language used makes it clear that it is intended to allow grazing shares – and only grazing shares – to be dealt with on their own, separately from the rest of the croft. There is no provision allowing assignation of any other part of the croft. Such an assignation has the effect of dividing the croft. Other types of division are dealt with by sec 9.

[32] Sir Crispin contended that, as the grazing share part assigned under sec 8(7) had started as the pertinent of a tenancy it could only be effective if it was attached to another tenancy. This was supported by submissions based on the apparent contrast between sec 8(7) and sec 3(5). As the latter expressly “deemed” a separate interest in a grazing share to be a croft it was said to follow that, absent that express provision, it could not be so regarded.

[33] It is important to recognise that despite the absence of any deeming provision in sec 8, the two subsections, sec 3(5) and sec 8(7), are entirely consistent in accepting the concept of the grazing share as capable of having an existence separate from the original inbye croft. We think it is significant that sec 3(5) demonstrates that Parliament accepted the possibility of a grazing right being dealt with on its own. If this could work when the division was caused by a part purchase, there is no reason why a similar result should not follow a division brought about by assignation. We are not satisfied that there is any justification for concluding that an assignation under sec 8(7) can only be effective if it is an assignation to an existing crofter.

[34] It may be noted that the concept of a grazing right being dealt with on its own was not a novelty introduced in 1976 by the original version of sec 3(5). By way of illustration, reference can be made to Department of Agriculture v Sutherland Estates where the Department created a common grazings with twelve shares and allocated two shares to persons who had no other croft holdings. It may be said that where common grazings have been created in that way, different considerations may apply by comparison with a typical common grazings at common law. Our answers below relate to the latter and to the inter-relationship of common law principles with the current legislation. We heard no submissions relating to any specialities arising from crofts or grazings created under the amendments effected by sec 9 of the Land Settlement (Scotland) Act 1919 or any other special situation.

[35] Where a grazing right is assigned to the holder of a croft, we accept the submission of Mr Kennedy that sec 3(4) has the effect of making it part of that croft. However, if the right is assigned to someone with no relevant physical property we see nothing in the legislation to prevent it having an independent existence. There are many examples of this working well in practice although the practical operation is, no doubt, facilitated by treating the owner of the land as it he was landlord of the grazing right. A comparison might be drawn with shootings where the precise legal nature of the right was seldom of importance although it attracted desultory consideration from time to time. [An unusual example of analysis of the right can be found in Drummond Estates v Central Assessor LTS/VA/2003/10 where the nature of a shooting lease was thought to be relevant to the rating of a deer larder.] Plainly the right to graze is part of the bundle of rights held by a crofter. It can be assigned. We see no reason why it should then fall out of crofting. We recognise, of course, that such an assignation now requires consent of the Commission and that would plainly allow a form of control which would allow the share to be attached to an existing holding. But that control was not available when the section was first enacted. The Commission originally had no power to prevent assignation to a member of the crofter’s family.

[36] It was not doubted that a right to graze could exist as the perk of an office. It is not a lease in that context. It can pass from one office-holder to another by agreement of the landlord. If, by Act of Parliament such a right was declared to be a right which went with the office and could not be lost, there would be no particular difficulty in giving effect to such a provision.

[37] We do not accept that the existence of the express deeming provision in sec 3(5) necessarily means that any reference to a part of a croft, without such deeming provision, must mean that the part in question is not to be treated as a croft. The continuing status of land as subjecting to crofting control is fundamental. “When a right to a croft or part of a croft, such as a grazing right, is vacant and unclaimed, that right does not cease to exist, but remains in existence and available for disposal in favour of a new grantee at the instigation or with the approval of the Crofters Commission, until the object of that right ceases to be a croft or part of a croft by one of the methods already mentioned”: Macdonald v Prentice’s Trs. p 122.As Sir Crispin himself pointed out, “deeming” provisions can serve a variety of purposes in a statutory context. The expression can be found in circumstances where the meaning would have seemed quite clear without it. The fact that a word or expression is said to be “deemed” to have a certain meaning does not, of itself, justify the inference that it would not have that meaning without the “deemed” provision. In relation to the construction of sec 8(7), we think it clear that if part of a croft holding can be assigned to a new tenant, the effect must be to divide the original croft. Parliament has limited the power to assign part of a croft to a part which consists of a right in pasture. The obvious intention is that this right falls to be treated as a separate right. The fact that, in a somewhat similar situation, express provision is made to show that this right is to be treated as a croft does not justify a conclusion that when a grazing right is assigned it is to lose its crofting status. In any event it does not justify an inference that it was intended to be treated as some inchoate form of right, ineffective until attached to an existing croft.

[38] As we have said, Sir Crispin drew attention to the fact that creation of new crofts could have financial implications for the State, arising from the obligations to make certain grants available for crofters. He contended that, as there was nothing to suggest that Parliament contemplated any additional cost from the changes, an inference was to be drawn that it did not intend that there be any new crofts. It is sufficient to say that we do not accept that a desire to avoid risk of additional cost for the Government can be imputed to Parliament. In any event we do not accept it as a factor of any significant weight to stand against the plain words of sec 3(5) or the plain effect of sec 8(7). It cannot be said that there is anything in the scheme of the Act itself to indicate an intention not to allow new crofts to be created. The provisions of sec 9 plainly envisage the possibility of new crofts and, although they are under control of the Commission, this is not the same as control by the Government itself. The Act does allow for new crofts to be created by way of apportionment. However, we do not think it necessary for an independent grazing share to have the label “croft” before it can be regarded as subject to all relevant controls of the Act.

[39] We accept that the conceptual problem arising from the status of grazing rights as a pertinent held in tenancy as part of the croft presents some difficulties. We are satisfied that if Parliament decreed that a grazing right could be held by a person who did not hold any relevant associated land, this could be perfectly workable. If such a right was not consistent with the concept of a grazing right as previously understood, the only possible implication would be either that Parliament intended to create a new kind of right or add new features to an old one or that the legislation was based on an imperfect understanding of the nature of rights in common grazings.

[40] We were referred to an observation by Lord President Cooper to the effect that it was difficult to assign the right of a grazing shareholder to any recognised legal category. He referred to the 1911 Act as providing that such rights were to be deemed to be included in the holding “but only for the purposes of the Landholders Acts. This doubtless means that the rent of each holding contains a latent ingredient to cover the grazing rights; but except in relation to the Land Court and its jurisdictions, the provision has no further or other effect”: McMillan v Invernessshire C.C. We think the significant point is that Lord Cooper recognised the existence of a right which could be understood in the context of the crofting legislation even if not readily identifiable in a wider common law framework. We have little doubt that our approach must be to try to understand what Parliament intended to be able to be done with grazing shares and give effect to that, if possible.

[41] The fundamental problem is that, although we are satisfied that crofters’ rights to grazing shares may be looked at as a concept sui generis, a grazing share is usually held by a crofter as a pertinent of his crofting tenancy. It may come to be held as a servitude. In both cases, the rights are held with other land. It is not difficult in such cases to recognise that the right derives from the landlord of the croft rather than the owner of the grazings burdened by the grazing rights. However, a right to graze could readily be created by agreement. It would be a personal right but if Parliament decided to strengthen and protect such a right there would be no essential reason why that could not be done either by fitting such right into an existing structure or by new provisions. If the aim was to protect such a right, such intention could receive effect. The effect of the Parliamentary provision might make it equivalent to a real right in the original sense of that term. The concept presents no great practical difficulty. The difficulty, as it seems to us, is that Parliament has not attempted to distinguish between the two situations; where the landlord of the inbye croft is the owner of common grazings and where he, or she, is not. There is no machinery for transfer of a right deriving from one person to a right to be held from another. Accordingly, there is a conflict between what might seem the obvious common sense of the situation and the underlying legal basis of a particular holding.

[42] Some of the conceptual difficulties posed by Sir Crispin are answered, if not wholly resolved, by giving full weight to the plain intention of the two provisions, sec 3(5) and 8(7). The problem of identification of the proper landlord remains and we return to it below. However, once it is recognised that Parliament plainly intended grazing shares to be capable of being separated from their original crofts, it is not easy to see any proper basis for an implied intention that such right be immediately and necessarily attached to other land, far less that such land be limited to subjects held as a croft. Section 47(10) shows that Parliament recognised that such shares would not necessarily be held by crofters. If it had intended the powers in sec 8(7) to be restricted to a right to assign to an existing crofter it would have been natural to say so. There is no statutory basis for an implied restriction. Any common law basis would be founded on the necessary connection between the grazing right and the inbye croft. But that is the very connection which Parliament has explicitly broken.

[43] The only restriction which appears on the face of the legislation is the need for consent from the Commission which will apply to all assignations, including family ones, in terms of amendments made by the 2007 Act: sec 16. The recent legislation does not clarify Parliamentary intention in relation to characteristics of a suitable assignee. In terms of sec 12 of the 2007 Act, subs (2) to (4) of sec 8 of the 1993 Act were deleted and the substituted provisions give details of matters to which the Commission required to give special consideration. These changes came into effect on 28 January 2008: 2007 SSI. No. 568. One such matter was that the proposed assignee “already owns or is tenant of a croft”. The clear implication was that this was to be seen as a factor tending to weigh against consent. This provision is quite inconsistent with the contention that assignation of a part requires to be to an existing croft or crofter. However, these substituted provisions were repealed by the provisions of schedule 4, paragraph 3(8)(b) of the 2010 Act, which came into force on 1 October 2011 (2011 SSI. No. 334), and the replacement provisions in the amendments to sec 8 or in the general provisions relating to Commission consent in sec 58A have no apparent bearing on this aspect of Parliamentary intention. In any event, the grazing share is subject not only to control at the stage of assignation but to the wider statutory provisions controlling common grazings.

[44] Apart from the amendment made by sec 12 of the 2007 Act, we have found no sound practical reason for any inference of an intention to limit the scope of the power to assign a grazing share. The emphasis on it as a pertinent and as an intangible right suggests something ephemeral or insubstantial. But that is not how a grazing right appears in practice. On the contrary, a right to a grazing share is intensely practical. It may be controlled in a practical fashion by a grazings committee. It can be measured precisely and its uses varied appropriately in terms of its souming. As Sir Crispin stressed, it is a right which may well be as valuable in economic terms as the inbye croft. Indeed, where the croft house has been decrofted and an open township scheme of winter grazing is in operation over the inbye land, there may be little or no practical distinction between the use made of the grazings and the use made of the inbye.

[45] The supposed need for transfer to an existing tenancy is based on the contention that there is no such thing as a tenancy of a grazing share. It is the attachment, not the assignation which gives life to a right that could not otherwise exist. However, although we are satisfied that a crofter’s right in relation to a grazing share in common grazings is not a right in tenancy over the grazing land, that does not, in our view, preclude the concept of a right to graze being held in tenancy. The intention of Parliament seems to us to be clear. The grazing share is to be capable of being dealt with separately from the croft. There is no reason why this could only receive effect if the transfer was to a crofter.

[46] But, as we have said, one difficulty is that there is no machinery for transfer of a right held by a tenant from one landlord to a right to be held from another. There was no challenge before us to the proposition that a grazing share is held by the crofter in tenancy as a pertinent of his croft. Separation of the inbye croft and the pertinential grazings share cannot, itself, bring about a change in landlord. The main problems arise from the fact that when the share is held alone the connection between the right to graze and the original landlord may readily be forgotten. In practice people tend to pay little attention to the rights of the latter and simply assume not only a change in the nature of the right but a change of landlord. Instead of a tenancy of a grazing share the tenant is assumed to be a tenant of the grazings. We think it clear that this is a commonly held view. We have little doubt that the grazings shareholders often pay rent to the grazings owner on that assumption. Sir Crispin’s suggestion that the right could only be validly assigned if it was to an existing crofter would have protected the original status of the right as a pertinent but it did not directly address this problem. It was not suggested that the only possible assignation would be to a crofter holding from the same landlord. That might have been a more plausible line.

[47] The problem we now face is not due to the popular misunderstanding. Erroneous views of the law and payments made or received on the basis of erroneous views are not a novel problem. The courts must proceed on their view of the proper law and cannot alter that to fit the misconceptions of the public. The problem arises from the Parliamentary perception. If we are persuaded that Parliament has proceeded on a particular view of the law, we should, if possible, give effect to that view so that the enacted provisions have effect as Parliament intended. It is possible that Parliament took the view that a grazing share, once detached from the inbye croft was to be treated as if it was equivalent to a share in a tenancy of the common grazings. If so, we should try to give effect to the Parliamentary intention implicit in that view.

[48] We have given careful thought to this problem. However, even if we assume that to have been the Parliamentary intention, we can see no mechanism which would allow us to give effect to it. If there is to be a change of landlords in such circumstances, we consider it necessary for Parliament to make express provision for the change. One landlord cannot simply be dispossessed in favour of another in order to bring about administrative tidiness.

A crofter purchases his grazing right and apportionment from the original landlord of his croft from whom his right is derived

[49] Although there has been considerable confusion over this issue and we recognise that our conclusion is not consistent with what has happened in many transactions in the past, this proposition follows from proper understanding of the nature of the rights as pertinents of the tenancy. It is consistent with the statutory scheme of purchase provisions under which payment is calculated solely by reference to rent: sec 14.

[50] However, as we have indicated above, it may give rise to a practical problem arising from the modern practice of splitting estates, either by sale or by creation of trusts, combined with practices followed without proper understanding of the nature of the rights involved. The legislation provides little assistance but, once it is understood that the crofters’ rights in common grazings, including the right to seek apportionment, are rights which they hold from their own croft landlords, the problems of purchase arising from the separate ownership of the grazings can, perhaps, be seen to be more apparent than real. It may be added that we recognise that, quite apart from grazings created by statute, the origin of grazing rights may vary and we cannot exclude the possibility that there may be grazings shares which do not fall into the normal category.

[51] In the usual case, the grazings were in the same ownership as the inbye crofts when the rights were created. When they were sold, the sale must have been subject to the crofters’ rights whether or not these were expressly provided for. “It has never been disputed that an owner is entitled to sell all or part of a common grazings area and that the purchaser acquires the land subject to the grazing rights of the crofters”: Kennedy v Stewart [96]. In short, the new owner would be burdened with the grazing rights including the rights given by statute and in particular, the right of a grazing shareholder to apply for an apportionment and acquire title to it. If the new owners made some private arrangement with the seller to receive rent from the grazings, they might have been expected also to make an arrangement to cover the event of compulsory purchase of any apportionment. But that is not a matter which would, or should, have been of concern to the crofters. If crofters exercise their rights to assign a grazing share, the owners of the common grazings, have no direct involvement. Their lands are burdened by the rights: Castle v Philp. It follows that when a crofter’s rights are converted into full crofting rights by the process of apportionment, the owner of the land, has no entitlement to payment.

[52] There have been examples of arrangements being made, in such circumstances, for rents to be split between the original landlord and the common grazing owners. The Court has sometimes been asked of consent to make such a split. In Sutherland Estates v Sutherland and Ors, the Court discussed the strictly correct position that each crofter with a share in the grazings had to have the share assessed as part of his croft. But it was agreed that as the only contentious material was that relating to the grazings, the Court would assess that separately: pp 148 and 149. As discussed above in relation to the issue of tenancy of grazing shares, such private arrangements or understandings cannot affect the proper legal basis upon which matters are to proceed in case of dispute.

[53] The practical problem of how the crofter actually acquires title to the apportioned land did not arise in relation to the questions posed in this case as it is not an issue which concerns the Commission. But, for completeness, reference may be made to a similar problem which arose in relation to rights of access in Gourlay v MacAlpine-Downie. Under the provisions of sec 16(3) an owner who has derived his title from the original landlord can to be compelled to grant a title.

[54] Apportionments were created by Act of Parliament and it has been possible, by and large, to give effect to the supposed intentions of Parliament in relation to them because there are full statutory provisions dealing with them. But they are an anomalous type of right. They derive from rights over land and are converted not only to rights in the land but, potentially, to full proprietary rights. The crofter who derives his rights from his landlord – who may not be owner of the apportioned land – is empowered, by the Act, to dispossess that owner. The problem does not appear to rise quite as sharply at the stage of acquisition of grazing rights because they remain as rights over land but, as discussed above, there is no doubt that this is an area ripe for confusion and misunderstanding.

[55] The nature of the crofter’s rights was discussed at length in the Commission reference in the Arrancase in 1996. The decision followed the decision in Ross v Graesser. No attempt was made in the 1993 Act to make any change to reflect any perception that the Court’s conclusion in that case was inconsistent with the intentions of Parliament. The 1993 Act was, of course, a consolidating Act and it is perhaps of greater relevance that some changes were made in the 2007 Act to amend references to landlords of common grazings to references to owners. But no attempt at fundamental change was made in the 2007 or 2010 Acts although both were passed when the implications of Ross v Graesser and the Arran case had had plenty time to be digested.

[56] Sir Crispin argued that a grazing right created in exchange for a payment was essentially a lease and stressed that the Land Court decisions made it clear that rights to common grazings were not to be seen as based on a lease. He suggested that if such an arrangement could be seen as a right to use land for limited purposes this still had to be viewed as a lease. It could be seen as a lease of land burdened by the rights granted to others but it still had to be viewed as a lease of land. However, we think that the short answer to this is that the taxonomy does not matter. We must give effect to the legislation if possible. Although it is clear that a crofter’s grazing share is not to be regarded as a tenancy of the grazings, there is no reason why a right to graze should not be created in that way. That was how it was treated in MacMillan v MacKenzie and other examples of grazings users sharing in tenancy of a grazing area can be found: see Crofters Commission v Arran p. 124; Department of Agriculture v Sutherland Estates, mentioned above.

[57] We turn now to look at two problems which were discussed before us. Although we have concluded that it is not appropriate for us to express a concluded view on the first we think it appropriate to set out some of the issues which arise.

Is a crofter entitled to acquire grazing rights under section 12?

[58] The issue of construction of sec 12(3)(b) does not appear to have arisen sharply for decision before. However, it can fairly be said that there has been a general understanding that grazings rights are not included in the subjects a crofter is entitled to buy. It is plain that in a number of cases, applications have been made under reference to sec 12 in circumstances where the applicants have plainly wished to acquire as much as possible but have simply assumed that the grazing share was not a right they were entitled to acquire. In Halistra the Court put the matter in a rather neutral way: “grazing rights are not specifically included in the subjects which the court may authorise a crofter to acquire under the Act”: p 10L. In Gourlay v MacAlpine-Downie the Court actually said, in terms, that grazing shares were expressly excluded from the scope of the right to buy provisions: {73]. However, the point had not been argued and no weight need be attached to the observation. It plainly goes too far. On any view of the matter, it cannot be said that the relevant provisions expressly exclude grazings rights.

[59] In considering the question of whether a crofter has a right to compel his landlord to sell the grazing share, it is clear that although the use of the term “croft land” may tend to convey the impression of an emphasis on the physical land there is no justification for this. The draftsman required some label other than “croft” because that term was defined in terms of a holding in sec 3. It is well established that a reference to “land” can include buildings and rights which run with the land. That is now a matter of express statutory provision in terms of the Interpretation Act 1978. (Similar provisions appear in the Interpretation and Legislative Reform (Scotland) Act 2010.) Section 5 of the 1978 Act provides that “in any Act, unless the contrary intention appears, words and expressions listed in Schedule 1 to this Act are to be construed according to that schedule”.

[60] Unless there is something in the context of sec 12 to show that it was not intended to apply the definition of “land” which is contained in schedule 1, that definition must be taken to be implicit. The definition of land expressly includes any “right in or over land”. In terms of sec 12 the crofter is entitled to apply for an order authorising him to acquire the “croft land” tenanted by him. The “croft land” is defined as including “any land being part of a croft”. By virtue of sec 3(4), the grazing rights are plainly part of the croft. Grazing rights are “rights over land”. Unless the context can be said to point to an intention not to adopt the statutory definition, the basic entitlement would seem to include the grazing right tenanted by the crofter. It may be noted that although we are aware of a suggestion that the reference to rights over land fell to be construed as if it read “rights in or over that land”, we did not hear positive submissions to that effect and we might reasonably proceed on the view that the grazing rights were indeed covered by the reference to “croft land”, as defined.

[61] However, a question would then arise as to whether such rights were excluded by the provisions of sec 12(3)(b) as being “any land, comprising any part of a common grazing”. Here again, the word “land” would require to be read as defined. So, in full, the exception might be thought to apply to “any right in or over land, comprising any part of a common grazings”. Sir Crispin contended that the exception did not apply. Normally the effect of a statutory definition is that it can be read into the relevant Act in place of the word defined. However, we understood him to contend that the definition had to be taken to refer only to the right and plainly that was not part of the common grazing land. It may be added for completeness that if there was any reason for saying that the scheme of the Act pointed to an intention not to incorporate the statutory definition, the exception would not apply but grazing shares would not fall within the basic description of “croft land” in the first place.

[62] To conclude that grazing rights were excluded might seem a little surprising when section 12 applies “failing agreement with the landlord” and Parliament has not attempted to prevent a tenant acquiring his grazing rights by consent. It cannot be said that purchase is inconsistent with the policy of the Act. Grazing rights are an important aspect of the viability of crofts. If the aim was to give crofters freedom from the constraints of landlords, it would clearly be necessary to allow purchase of grazing rights. However, the precise policy aim of the Act may have been more complex. It does seem that Parliament intended to allow grazings rights to be dealt with in a way which would allow them to be fully utilised separately from inbye crofts. It may have been thought that separating them from the right to buy would help ensure that crofters did pay some attention to their need for such shares.

[63] In considering the intention of Parliament regard can also be had to the relationship of rights to grazings and the right to apply for an apportionment. The latter is derived from the former and where a crofter is very clearly given a right to buy his apportionment it is not easy to see what policy would have been thought to prevent acquisition of grazing shares, although, of course, policy cannot prevail over clear language.

[64] Such restrictions as are placed on the right to buy an apportionment appear to have been aimed at protection of the physical nature of the common grazings. Limiting the right to adjacent land might have been thought to help prevent the creation of isolated pockets of land in different ownership. However, in the course of the hearing our attention was drawn, in this connection, to a rare example of an error in a published Act and we take this opportunity of giving it such publicity as we can. It was not disputed that the original Queen’s Printer’s copy of the 1993 Act omitted part of sec 12(3)(b) of the Act as passed by Parliament. Many copies of the Act have been produced in different publications in reliance on the Printer’s version. However, it was not disputed the critical version is the version as enacted rather than the version as printed. Strictly, it is the version which received Royal Assent which is the enacted version and if this was a disputed issue, further investigation would be required: see generally Bennion Pt II. However, it was not disputed before us that the enacted version of sec 12(3)(b)(ii) should read as follows: “(ii) comprises the whole croft, other than any right in pasture or grazing which has not been so apportioned: or”. The provision relating to machair which appears in the Printer’s copy as “(ii)” should appear as (iii). Had the Court been aware of the error the decision in Bowman v Guthrie would almost certainly have been to a different effect.

[65] The process of converting rights held under a lease to rights of property – so-called “leasehold enfranchisement” – is not always free from difficulty. Some rights appear to be capable of being converted direct. A right of sole occupation as a tenant of a defined piece of land can readily be changed to a right of ownership. Some rights may not be capable of conversion. A crofter might, for example have been given the benefit of shooting rights over his landlord’s retained land. These might be described as a valuable pertinent of his tenancy. They would not be a pertinent of his land and it would not be easy to convert them to a property right. If Parliament did intend to give a crofter a right to buy the grazing rights it would, no doubt, be possible to convert them into real rights if they were to be conveyed along with other land. That has been done in certain voluntary conveyances – although we go on to discuss the question of whether there is an inevitable gap between the rights enjoyed as crofter and the rights held as owner. If grazing rights were held alone, it might not be possible to achieve an effective right to buy. However, the fact of a Parliamentary intention being incapable of being put into effect in certain circumstances would not, of itself, demonstrate that Parliament had no such intention.

The problem of “the gap”

[66] The problem of the possible gap between the rights of a tenant and the rights which might be conveyed, explicitly or by implication, on purchase of a grazing share along with the inbye land, is one which needs some care at the conveyancing stage. Paradoxically, there would be no immediate gap if the grazing share passed along with the other croft land by inference. What would implicitly be conveyed would be the full right as enjoyed by the tenant. There might well be a gap if there was an express conveyance describing it in more restricted terms as a grazing right or servitude of pasture. Rights in common grazings are wider than a typically expressed servitude right of grazing. They might embrace rights to take peats as well as rights to use for ancillary purposes such as drying nets and other uses in connection with fishing. But a competent conveyancer could, no doubt, cover all important aspects of this. One specific problem was thought to relate to prescription. Servitude rights normally prescribe under the long negative prescription in terms of sec 7 of the Prescription and Limitation (Scotland) Act 1973. If the grazing right is converted on purchase in simple terms to a servitude right, it would be susceptible to prescription after twenty years of non-use.

[67] This problem is not one which rises sharply for the Commission. It is essentially a problem for conveyancers. It may be that the solution lies in the avoidance of any attempt to constitute the rights as a servitude. If the right could be conveyed as a res merae facultatis it would be imprescriptible for the purposes of the 1973 Act: see schedule 3(c). We heard discussion of this under reference to Peart v Legge. That was a case about a servitude of access which included provision for the dominant proprietor to slap a gap in a wall. No date for doing this was specified and it was argued that this allowed it to be treated as a res merae facultatis. Lord Macfadyen, delivering the opinion of the Extra Division, said: “We conclude, therefore, that Smith v Stewart illustrates that a right may be regarded as a res merae facultatis if the terms of the instrument constituting the right indicate that the right was not to be exercised at once but was to subsist until exercised at an indefinite future date chosen by the proprietor of the dominant tenement”: at [28]. If it is possible effectively to create a res merae facultatis by the terms of the deed there should be no difficulty in making it plain that the dominant proprietor is free to exercise the grazing right at any time in the future and indeed expressly designating it a res merae facultatis for avoidance of doubt. We heard brief reference to Bowers v Kennedy where a right of access had been created explicitly as a servitude. The subjects and the access to them had not been used for over twenty years and, as a servitude, the right would have prescribed. However, the court held that as access was plainly a necessary right it did not prescribe. The case illustrates the possibility of rights thought by the parties to be capable of being converted to a servitude but in fact having a wider effect. We see nothing in that case inconsistent with the view that a crofter’s grazing rights can properly be conveyed with the inbye croft as a res merae facultatis. The right in question is one based on the provisions of crofting legislation – which in effect give real rights to crofters. However, this issue does not arise sharply in the questions posed and we do not attempt to express a concluded view.

ANSWERS TO THE QUESTIONS POSED

1. Where a crofter purchases the croft with the agreement of the landlord and the conveyance includes a “parts and pertinents” clause but no specific reference to the grazing share, is the grazing share conveyed as a servitude under the parts and pertinents clause?

a. Is the Answer to question 1 the same, even if there is no parts and pertinents clause, in respect that the law implies a parts and pertinents clause into every disposition or does the grazing share have to be specifically excluded in the conveyance?

b. If a grazing share is included as part of the purchase of croft land can a rent still be charged in respect of that share and, if so, does this alter the status of that share?

1. No. Although this issue was considered by the Court in the Halistra case, that was a decision in special circumstances where there was no doubt about the actual intentions of the parties. We are not persuaded that grazing shares will normally be carried without express reference although this may depend on the precise terms of the disposition.

Many sales which may be apparently voluntary take place under the shadow of the Act. It is not safe to place weight the apparent agreement of the landlord. However, it does seem clear that the conveyances under discussion in Halistra proceeded on an entirely voluntary basis. We say that partly because it is within the collective knowledge of the Court that Johannes Hellinga, who was effectively in control of the landlord company, was known to take an active role in persuading crofters to buy and partly because of the inference to be drawn from the fact that the individual owners were collectively able to acquire title to the common grazings land itself. There was no statutory compulsitor for this.It seems clear that in considering the intention of parties, the Court did not limit itself to the terms of the various dispositions. Account was taken of the fact that after each crofter acquired title no rent was paid in respect of grazings shares. Consideration was given to whether any inference as to intention could be drawn from the fact that sec 12 did not expressly include a right to buy a grazings share. It is fair to say that the Court went on to refer to the intention of the parties requiring “to be ascertained from the terms of the missives and subsequently from the terms of the disposition”. This does indicate the importance of the disposition but it does not appear that the court determined the matter solely on the terms of the dispositions in that case.

The report does not set out the detail of the various dispositions. It is simply noted, at p8 H-J, that there was a conveyance “of the croft land previously tenanted by him”. This is likely to have been a shorthand reference to a physical description of the land in question in each disposition. But it does not appear that the Court attached importance to the description of the main subjects. We accept that if the conveyance had indeed been expressed in terms of “subjects tenanted with pertinents” this would indicate an intention to include the grazing share.

We think it proper to see the Halistra case as one turning on its own circumstances as far as construction of title is concerned, and, on this aspect, to regard it as authority only for the proposition that where parties intended the grazing share to be included a disposition including a reference to pertinents of subjects tenanted should be taken to include a servitude of grazings shares. It may be added that it is tolerably well established that pertinents are carried by implication. This is now a matter of statutory presumption in terms of the Land Registration (Scotland) Act 1979. However, the significant feature is that in the circumstances of Halistra the Court did not require to address closely the sense in which the grazing share was properly to be regarded as a pertinent of the land which was being conveyed. Although a grazing share is properly described as a pertinent of a croft, we are not satisfied that it is properly to be regarded as a pertinent of the actual inbye land. In a modern disposition we would expect a description of the physical subjects. We are satisfied that for the purposes of the 1979 Act a simple conveyance of the inbye land should not be taken to carry the grazing shares associated with the tenancy.

We have considered the suggestion that, in any conveyance of croft land since 1997, the solicitors would be familiar with the broad effect of the Halistra decision and would assume that express reference to pertinents would be sufficient to carry the grazings shares. We are, however, aware of cases where parties clearly did not expect the grazings to be conveyed. Most sales are voluntary in the sense that the terms of the disposition and the extent of the land to be conveyed are not directly ordered by the Court, but many will undoubtedly have taken place because of the existence of the compulsory powers of the Court under the Act. The landlord will have agreed because he felt he had no option. We have little doubt that, in practice, any conveyancer who gave thought to that decision would have decided to express the matter clearly in the disposition rather than rely on an implication. We do not think there is any real risk of disturbing settled practice if we do not accept the decision in Halistra as authority for the wider proposition that in any disposition of croft lands, some inclusion of a reference to pertinents is sufficient to carry a grazings share. In our view a conveyance of a designated parcel of land without express reference to the grazing share will not carry it as a pertinent because the right to graze is a pertinent of the tenancy rather than of the land as such.

Sir Crispin contended that, if a grazing share was normally carried by a reference to pertinents, it would not be competent to introduce evidence of a contrary intention. On the view we take, this particular problem does not arise. However, we accept that it is well established that the disposition is generally the measure of the parties’ rights and exceptions to that are very limited. We heard discussion under reference to the decision in Winston v Patrick. However, that case dealt expressly only with the effect of a disposition superseding provisions in missives and we do not think it adds to the general proposition that the disposition is the normal measure of the rights conveyed. It has itself been largely superseded by the provisions of the Contract (Scotland) 1997. We wish to say nothing bearing on arguments which might be available as to the scope of exceptions to the general proposition. In any event, it may be noted that, if a disposition has an effect contrary to the clear intention of parties, a remedy may be available in terms of sec 8 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1985.

1a. Yes. We have no doubt that the general principle is that parts, privileges and pertinents are carried by implication: Gordon v Grant. As we have said, this is now a matter of statutory implication under the Land Registration (Scotland) Act 1979. In terms of sec 3(1) “Registration shall have the effect of (a) vesting in the person registered as entitled to the registered interest in land a real right in and to the interest and in and to any right, pertinent or servitude, express or implied, forming part of the interest”. However, these provisions can only apply to rights which are properly described as a part of the interest in the land being conveyed.

We heard some discussion of the specialities of “break off” titles and the proposition that such titles do not normally convey pertinents. What is to be included when a part is sold is essentially a question of what that part is intended to contain. In many situations, the part being broken off will have had no prior relevant separate being and, accordingly, could not be said to have its own pertinents. Similarly, the physical croft land has no necessary connection with the grazing right. It is a right which is part of the croft tenancy rather than part of the inbye land.

1b. No. The thinking behind this question is not clear. Once a purchase has been completed there can be no question of continuing rent. In the usual case, the landlord must have had rights in the grazing share to be able to provide it for his tenant as a pertinent of the croft. How that landlord acquired the rights does not appear to us to be of significance in this context, although it will almost invariably have arisen from his original ownership of the grazings. Once the former crofter holds the right as owner, no question of rent can arise.

2. Where a crofter purchases croft land in terms of an order under section 13 of the Crofters (Scotland) Act 1993 and the conveyance includes a parts and pertinents clause but no specific reference to the grazing share, is the grazing share conveyed as a servitude under the parts and pertinents clause?

a. Is the Answer to question 2 the same, even if there is no parts and pertinents clause, in respect that the law implies a parts and pertinents clause into every disposition or does the grazing share have to be specifically excluded in the conveyance?

b. Does the definition of “croft land” in sections 12 & 13 of Crofters (Scotland) Act 1993 include a grazing right, in respect that the statutory definition of “land” in the Interpretation Act 1978 defines “land” to include “any estate, interest, easement, servitude or any right in, or over, land”.

c. If a grazing share is included as part of the purchase of croft land under a purchase authorised by the Land Court can a rent still be charged in respect of that share and, if so, does this alter the status of that share?

2. No. This follows from the preceding answer. It may be noted that it is rare for a conveyance to be made under the direct order of the Court. Where an application has had to be made under sec 13, the Court may well be directly involved in relation to certain disputed terms but the basic terms of the disposition will usually be adjusted between the parties.

But, in any event, as far as we are aware, all applications to date have proceeded on the assumption that the applicant is not seeking a conveyance of the grazing shares. That is why the Court has not required to rule on the scope of sec 12(3)(b). In such a case the disposition may well have made no reference to such shares and we are satisfied that, for reasons just discussed, a reference to parts and pertinents of any defined piece of land would not carry a grazing share. It certainly would not be intended to carry such a share.

a. Yes. A disposition of a piece of land which is entirely silent in relation to grazings shares cannot be assumed to carry them.

b. Although we had understood that the questions posed arose from issues currently before the Commission we have come to conclude that this question cannot arise from any live issue which they have to determine. Where a crofter seeks to enforce rights under sec 12 this Court has jurisdiction. In any such case there will be a direct conflict between the applicant crofter and relevant landlord or landowner. For us to attempt to answer this question in the current reference would mean answering it in absence of any input from any party with a direct interest, actual or potential, in any current action. We did recognise that some of the questions raised might fall into that category and our intention in seeking the assistance of an amicus curiae was to try to ensure that the interests of unrepresented parties would be fully protected. We have concluded that the question of construction of sec 12 raises wide issues and is not an issue for academic determination even with the benefit of the submissions we heard. If, contrary to this assumption, the Commission do require an answer to this question in order to deal with any disputed issue currently before them, the matter could be dealt with by written submissions setting out the circumstances in which the issue arises and the parties affected by it. We would then consider what further procedure to adopt. We would try to deal with it on written submissions, if requested, as we have had the benefit of fairly full submissions.

c. No rent would be due in the circumstances.

3. Where a crofter purchases the croft land, but the grazing share is excluded from the sale and the owner of the common grazings is different from the owner of the croft land, should any apportioned rent for the grazing share be paid to the former owner [in respect that the crofter is now the owner of the croft] of the croft land to which the right pertains or to the owner of the common grazings?

a. If the rent is paid to the owner of the grazings as opposed to the former owner of the croft land, does this alter the status of the grazing share.

3. This question essentially reflects the situation covered in sec 3(5). The crofter’s right is derived from his original landlord and payment for the grazing share should continue to be made to that landlord.

A crofter who has not purchased his grazing rights cannot pay himself as the landlord. However the share came to him from his original landlord and must have been underpinned by rights held by that landlord. The original rent would be paid to the landlord and would have to be apportioned on purchase. It is in accordance with principle that payment should continue to go to the croft landlord. There is no basis for payment to the landowner whose land is burdened by the rights for which payment is being made.

In Halistra the Court made certain observations with a bearing on this question although they were dealing with the context of an owner-occupier who had bought the whole croft including the grazing share. “The grazing rights which they enjoyed as tenants, however, did not cease to exist, because they are parts of the crofts to which they effeir and cannot be wiped out without decrofting. They must be regarded as having fallen vacant. The relationship between these vacant rights and the servitudes enjoyed by owner-occupiers can, in our view, be understood if the owner-occupier is regarded as the “landlord” of the grazing right (although not of the common grazing land), in the same way as he may be regarded as the “landlord” of the croft of which he is owner-occupier. The grazing right is then technically available for letting at the instigation of the Commission in the same way as the owner-occupied croft is available.” p 11C-D.

If parties have made some arrangement whereby rent is paid to the owner of the grazings, it will be necessary to look at the detail of the transactions to see whether they can be ignored as simply proceeding on an error as to the rights of the parties or whether they are properly based on some different relationship. It is unnecessary for present purposes for us to speculate as to what other relationship, if any, might competently have come to exist.

4. Where a crofter purchases the croft land without the purchase of the grazing share in the common grazing does the grazing right still remain a part of the croft holding as a unit, albeit held in deemed tenancy, until separated therefrom under one of the statutory procedures in the 1993 Act?

a. Is it competent for an owner occupier, holding a grazing right in deemed tenancy to assign that grazing right under section 8 to a person who holds no other croft land? or

b. where a grazing right is assigned under section 8, must it be assigned to a person holding croft land either as a tenant or owner-occupier to attach that grazing share to become part of that croft land?

4. No. This situation is expressly covered by section 3(5). The grazing share is deemed to be “a croft.” As discussed above, we see no justification for any qualification of that express provision.

4a. Yes. There is no good reason why a person holding a croft in deemed tenancy should not be able to assign that croft to a person who holds no other land. Crofts are commonly assigned to people who hold no crofts. There is no reason to assume that Parliament would have wished to see crofts being amalgamated.

4b. No. We refer to the discussion of this issue at paragraphs [31] to [48], above.

5. In the circumstances described in Question 4, where the owner-occupier transfers the croft land to another person either by sale or by the grant of a tenancy of the croft land,

a. does the grazing right, held in deemed tenancy, transfer automatically with that transfer? or

b. does the grazing right, held in deemed tenancy, require to be transferred to the new occupier of the croft land separately by way of assignation?

5a. No. The circumstances are those described in sec 3(5). The grazing right is held in tenancy as “a croft”. It must, accordingly, be dealt with separately. It may be noted, for completeness, that the dicta in Castle v Philp [15] which were referred to in relation to this question, appear to us to have no bearing on the situation. They were made in the context of a continuing tenancy of croft and grazings.

5b Yes.

6. Where the tenant of a croft assigns the croft land to another person,

a. does the grazing right transfer automatically with that transfer? or,

b. does the grazing right, require to be transferred to the new tenant separately by way of assignation?

6a. Yes. However, this is a misleading question. A tenant does not assign “croft land”. He or she assigns the tenancy of all or part of the croft. In the usual case the principle expressed in Castle v Philp and referred to in the preceding Answer applies: “Various consequences flow from rights in common grazings being deemed to be part of a croft. One is that when the tenancy of a croft is assigned or, following upon vacancy, relet, that tenancy will include the whole rights formerly comprised in the croft, including the rights in the common grazings, without need for these to be dealt with separately”: [15].

The implication of section 8(7) is that the only part of a croft which can be assigned separately is the grazing share. This view is reinforced by the provisions of section 9. With permission, a croft can be divided by assignation of any part or by abandonment of part, as was attempted in Mackay v CC . But the intention of a crofter in dividing his croft will normally be to transfer part of it to a specified person. This could only be done by assignation. In short, the obvious way to divide or subdivide a croft would be to assign part of it. This is not permitted except where that part is the grazing share or where the assignation is dealt with as a division under the terms of sec 9.

6b. No. Any assignation of the tenancy includes any grazing rights held as part of a croft unless these are clearly dealt with separately in terms of sec 8(7). (As discussed in Answer 3, this would not include grazing rights held as a separate croft under section 3(5).)

7. Is it competent for a crofter who has bought his croft land, but not the grazing share in the common grazings

a. to renounce the tenancy of that share under section 7 without the consent of the Crofters Commission? or

b. Is it competent to make such a renunciation with the consent of the Crofters Commission?

7a. Yes. The share is held as a separate croft in terms of sec 3(5) and can be treated as such. Section 7 does not require consent. Renouncing a tenancy simply means that the tenancy becomes vacant. The Commission can compel it to be re-let.

7b. Yes, but the consent is irrelevant. There is no provision which requires such consent in relation to renunciation.

8. If the answer to Question 7 is in the affirmative:

a. does that share then revert to the landlord as a landlord’s grazing right removed from crofting control, but subject to section 47(10); or

b. does the share become a vacant “deemed croft” and available for re-letting as a separate croft under section 23.

8a. No. There is no reason why renunciation should take the share out of crofting control. There may be circumstances, as illustrated in Halistra, where section 47(10) will apply even in relation to shares held by an owner occupier but that has no bearing on the present problem.

8b. Yes.

9. Is it competent for a person to hold a grazing right [not a grazing right subject to section 3(5)] alone in tenancy?

In particular:

a. Is it competent for a crofter to assign a grazing right under section 8 to a person who holds no other croft land? or

b. Where a grazing right is assigned under section 8, must it be assigned to a person holding croft land either as a tenant or owner-occupier to attach that grazing share to become part of that croft land?

c. Is it competent for a grazing right alone to be let to a person who holds no other croft land under section 23, where section 23(11) recognises that the section applies to “part of a croft” and section 3(4) provides that a right of grazing is “deemed to form part of the croft”?

9.a Yes. 9b. No 9c. Yes.

These matters have been covered in the discussion above. We think it clear that Parliament intended it to be possible under section 8(7) to assign, on its own, a right in pasture or grazing land. As Parliament intended it to be possible to deal with a grazing share on its own, effect must be given to that provision insofar as it is possible to do so.

10. Where a crofter has purchased the croft land, but not the grazing right and subsequently obtains the Crofters Commission consent to de-croft all the croft land:

a. is the grazing right de-crofted along with the croft land?

(i) if so, does the right revert to the landlord as a grazing right not subject to crofting, but subject to section 47(10)? or

(ii) does the right remain with the former crofter who has decrofted the land as a right not subject to crofting, but subject to section 47(10);

b. does the grazing right remain tenanted by the crofter who de-crofted the croft land as a deemed croft available to be dealt with as a croft?

10a. No. Decrofting of the inbye land cannot have any bearing on the status of the separate croft which was the grazing right. The Commission’s power to decroft arises under section 24(3) “when a croft is vacant”. There is no power to decroft a grazing share held in tenancy in terms of sec 3(5).

10b. Yes.

11. Where a crofter has purchased the croft land and grazing right as a servitude and subsequently obtains the Crofters Commission’s consent to de-croft all the croft land:

a. does that de-crofting also de-croft the servitude right of grazing?

b. If not, does the servitude remain as a grazing right subject to the Act, which can then be assigned to another croft.

11a. Yes. The question is misleading in that the consent under sec 23 is in relation to the “croft” rather than the croft land. However, this may be a matter of intention and the Commission should make its intention clear. There seems no reason why such decrofting should not cover the grazing share. The owner occupier would be left holding such rights as he had acquired in the grazings, subject to the provisions of section 47(10).

11b. In light of the previous answer, this question does not arise. However, it may be added that a servitude cannot be assigned. It runs with the land.

12. In what circumstances does a grazing right deemed to be held in tenancy as a deemed croft come to be “held otherwise”?

In particular:

If a crofter assigns a grazing right held in deemed tenancy to the tenant of another croft, does that “deemed croft” come to be “held otherwise” as part of the croft to which it has been assigned and so cease to be a “deemed croft”?

b. If an owner-occupier lets his croft land along with the grazing right, [whether that right goes automatically with the let or is subsequently assigned] does that right then form part of the croft and cease to be a deemed croft?

12. The opening question is essentially academic. However, it can be said that the reference to holding in tenancy in sec 3(5) appears to be tied to “that person” and the natural sense of the reference to the land being “held otherwise” relates to that person. The obvious way such person could change the nature of their relationship with the land would be by purchase. There is no difficulty in taking the expression “held otherwise” to cover the change in relationship which would take place if the tenant bought his, or her, apportionment or grazing right. The primary intention of Parliament was, probably, to deal with that situation.

We have touched on the problem faced by a tenant seeking to buy a grazing right. If the right is held as an independent grazing right it is not clear what, if anything, the prospective purchaser can actually acquire title to. In practice, it might be possible to seek an apportionment. But that might not be suitable. It would not be possible unless the grazing right was a share in a common grazing. This might simply be an example of Parliament seeking to confer a right which cannot be enjoyed as fully as expected.

The reference to “held otherwise” is capable of application to the relationship of other people with the tenancy but it is not clear that any wider application is necessary. If the original crofter assigned the deemed croft to another tenant, he would no longer have any relationship with it. But the right would be held in tenancy by another tenant in the same way as the first.

12a. No. Where a grazing right has been assigned, it may be said to be held otherwise than by the first tenant. But we do not consider that this changes the status of the deemed croft. As a matter of grammar, the words “held otherwise” relate to the status of the person. The status of the land is dealt with in a separate phrase. No doubt the conjunctive word “and” could be taken to imply a causative link and if we were satisfied that such a construction would lead to a more purposive result, we accept that it might well be possible to adopt it. However, the dominant principle underpinning any approach to the construction of crofting legislation is that of the protection of crofting status. If something is deemed to be a croft, it will remain as such until there is clear machinery to allow it to lose that status. If the croft status was to be changed by a change in the tenant’s relationship with the land, this would mean that change in personal status would have the effect of decrofting. That would be inconsistent with the whole scheme of the legislation and we could not readily accept a construction with that effect.

We accordingly proceed on the basis of the straightforward construction and conclude that the words “held otherwise” apply only to the tenancy. If the tenancy is assigned the deemed croft will be “held otherwise” in the sense that it is no longer held by “that person” but if it is assigned there will be another tenant and no significant change. The deemed croft will still have to be regarded as a separate croft.

12b. Yes. This is not an automatic process nor is the answer entirely straightforward. There is nothing in sec 3(5) to support an automatic return and the legislation makes no express provision for the conjunction or amalgamation of crofts however apparently desirable that might appear to be. However, the provisions of sec 23(5) make it clear that a vacant croft can be relet as an enlargement of an existing croft. Accordingly, if there was an intention to re-unite the separate units that could be done. When that intention would be implied is a more difficult issue and one best addressed in the context of an identified set of circumstances.

13. Where a landlord holds non croft shares in a common grazing, subject to section 47(10), is it competent for the landlord:

a. to make over all or part of that share to a crofter so as to enlarge the grazing share attaching to the croft and thus bring that part of the share under the Act; or

b. to let all or part of that share to a person who has no croft land, so as to bring the share fully under the Act;

13a. Yes. But this is a matter of intention and it is not clear what particular actings or procedures would be sufficient to bring this about. Here again, this is a question best addressed under reference to specific circumstances. If the share is, in itself, free from the provisions of crofting legislation, there would be no justification for implying any of the restrictions of the Act to transfer of the share. There is nothing which could bring such a decrofted share under the general provisions of the Act except insofar as it has a bearing on the common grazings. As far as rights to or in the shares are concerned, the common law will apply. Insofar as these shares carry rights in relation to matters affecting common grazings, section 47(10) will apply.

This question raises the issue of whether it is competent to enlarge a croft by adding a grazing share. As a matter of construction, the answer ought to be affirmative. Section 8(7) allows assignation of grazing rights. Although we are satisfied that assignation need not be to an existing crofter it does not follow that assignation to existing crofters was prohibited. There is no reason to assume such an intention. Therefore, there must have been thought to be a way in which this could be accomplished. The provisions of sec 3(4) provide a possible answer. They indicate that Parliament had in mind that rights in pasture might come “to be held” by the tenant of a croft and that this would be deemed to be part of the croft. We see no reason not to accept this provision as intended to cover this situation.

One problem might be to identify circumstances in which a new right can properly be said to be acquired by a person “as tenant of a croft”. As discussed above, we consider that sec 8(7) provides no basis for any assumption that an assignation must be to the tenant of a croft. In practice assignors are likely to think in personal terms, intending to assign to friend or relative rather than for the purposes of a particular croft. However, the Commission would be expected to clarify this aspect and even if motivated by personal factors, there would be no difficulty in ensuring that the assignation was to a person “as crofter”.

We heard doubts based on the provisions of sec 4. These tended to suggest a number of formalities to be gone through before a croft could be enlarged. However, that section appears to us to be an enabling provision. A landlord and tenant could agree to enlargement of the holding at common law and we think it implicit in the provisions of sec 23 (5) that a landlord of existing croft subjects can competently let them by way of enlargement of another croft. The Commission has power to compel this if the landlord does not submit his own proposals. Section 4 is not dealing with this situation. It is providing for the situation where the tenant wishes to enlarge the tenancy and has been able to reach agreement with the proprietor of additional land. If the procedures in that section are followed there is no requirement of consent by the original landlord. The section appears to lead to a situation where the tenant would come to have two landlords. There is nothing in this provision which could justify an inference that enlargement by addition of a grazing share was not to be permitted.

13b. The landlord can let the decrofted share as he pleases. If it is let to someone who does not hold croft land there is no reason for it to fall fully under the Act although there may be circumstances in which is will fall under sec 47(10).