(Lord McGhie, Mr A Macdonald)


(Application SLC 131/01 – Order of 10 April 2013)


A landlord applied to resume certain parts of a croft and the tenant then sought to buy his croft land – having previously purchased his house and garden site. The various applications took a somewhat tortuous course. However in terms of a Note of 15 August 2011 the Court set out its decision on the merits of various disputed conditions relating to the resumption and to the purchase, respectively. It was recognised at that stage that the parties would then have to work cooperatively to conclude the formalities. The parties managed to reach agreement on a range of practical issues and technical issues related to the formal conveyancing. However, they returned to Court over the landlord’s attempts to introduce two specific conditions to the purchase. The Court had determined that as a condition of the purchase the tenant should be obliged to fence the holding. Specific consideration was given to fencing to the north and west. It was agreed that the landlords would pay half the net cost of the tenant’s work. The landlords were also to be given broad rights of access between a track resumed by them and a woodland area to be protected and developed by them. The landlords sought express provision to allow them to convert the north stock-proof fence to a deer fence at their own expense and asked that the reservation of access should specify a right to build a proper track. The tenant opposed both conditions. The tenant also sought to bring matters to a head by moving for final orders effectively under the provisions of section 13(1) and section 16(2).

HELD that although the reservation of a right to add to the fence seemed eminently reasonable, it was not appropriate for the Court to make any order to that effect. A tenant’s obligation was limited to making a stock-proof fence and it was too late to vary this. On the other hand the right to make a track could possibly be seen to be implicit in the reserved right of vehicular access and should, in any event be made explicit.

The Note appended to the Court’s order is as follows:

[1] The two applications SLC/131/01 and SLC/142/99 have taken a somewhat tortuous course. However there is no doubt that we intended our Note of 15 August 2011 (hereinafter “the Note”) to be our considered decision on the merits. We recognised that the parties would then have to work cooperatively to conclude the formalities but it is clear that we did not intend that they would be able to reopen disputed issues.

[2] It seems clear that the parties have indeed managed to reach agreement on a range of practical issues and technical issues related to the formal conveyancing. The motions presently before us were triggered by the landlord’s attempts to introduce two specific conditions: one relating to the north boundary fence and the other to access. Broadly put, the proposal relating to the fence was that it should make express provision for the landlords to convert it to a deer fence and proposal was that the reservation of access should specify a right to build a proper track. The tenant opposed both conditions. Put shortly, he argued that the proposals came too late. He opposed the change to the boundary fence on its merits and further submitted if there was to be any change of condition relating to the fence, the whole question of fencing should be reopened to allow consideration of alternatives in relation to both the north and west fencing. The tenant also sought to bring matters to a head by moving for final orders effectively under the provisions of section 13(1) and section 16(2).

[3] The parties were agreed that these matters could be dealt with on paper and both submitted lengthy written submissions. The landlords also submitted a bundle of productions being, in the main, an exchange of correspondence between the solicitors. We understand that this was primarily intended to meet the suggestion that there had been deliberate delay by the landlords in concluding the purchase transaction.

The boundary fence

[4] In the Note we concluded that the purchase should be conditional: “on the tenant fencing the boundary to the north and west with provision of suitable gates or grids where the boundary meets the track at the west and at the north. This will be subject to agreement by the landlord to reimburse the crofter in one half of the net cost. The landlords will require to share equally in costs of maintenance”: [60 (j)]. We had described this issue as the most important and difficult question in relation to the terms and conditions of the purchase. It was a condition which had serious financial implications for the crofter. Our discussion was in terms of the need for stock-proof fencing to contain the tenant’s stock. At that stage there was no question of the landlord’s requiring a deer fence for protection of any estate to the north. There could have been no question of any obligation on the tenant to provide such a fence. His obligation related to containment of this own stock. In relation to deer, the case had been conducted on the basis that a secure deer fence was required to the east of the croft.

[5] The landlords’ formal motion is for clarification of the previous order but what is actually proposed, as a condition of the purchase, is that there should be an express reference to their right to extend the fence in future to convert it to a deer fence. They also suggested that deer fence strainers might be positioned at the time of the first construction of the stock-proof fence. That, they say, would enable the fence to be extended in the future at no extra cost and at least inconvenience to the tenant.

[6] The issues raised by this are not entirely straightforward. It is not a condition which we would usually expect to impose on a crofter buying his croft. The speciality is that the landlords offered to pay half the net cost of the stock fence. They now offer to pay all the additional cost of building and maintaining a fence suitable for deer. Had we been considering this issue afresh we would almost certainly have accepted that it was reasonable for the landlords, as a condition of making a contribution to the cost of the stock proof fence, to seek to ensure that the fence as constructed had the capacity to be developed as a deer fence. However, we are not considering the matter afresh.

[7] Had it been suggested at the proof that the fence be erected as a deer fence on conditions similar to those discussed in relation to the resumed woodland areas, certain aspects of detail would have required further consideration. A deer fence on high ground may be more susceptible than an ordinary stock-fence to damage from winter conditions, particularly from combinations of icing and gales. The precise extent of the risk and its practical implications might have been explored at proof. There are circumstances in which a farmer might wish to be sure that he could carry out urgent repairs to his fencing and might have a concern that such operations would be more complex where the fence served as both deer and stock fence. We doubt if that would be a serious problem in the present case but evidence might have been led about it.

[8] The tenant also raises the contention that if it is clear that the landlords require a deer fence in the location of the boundary fence, the need for the tenant to erect a separate fence may be doubted. This is another matter which might have been addressed at the hearing although we do not see it as a particularly persuasive contention. It might possibly have played a part in any assessment of the weight to be given to landlords’ offer to share the cost of erection of the stock-proof fence, but the fundamental consideration was that an owner of a stock farm ought to be required to keep it stock proof.

[9] The tenant contends that this is essentially a new proposal. The tenant is to be compelled to go beyond his obligation to make his croft stock-proof. We are satisfied that if this is a proper characterisation of the problem, it would be a sound basis for rejection of the motion. We recognise that estate administration involves regular reassessment. New proposals emerge which may seem eminently sensible – as does this one. There is no criticism of the landlords for failing to raise this matter at an earlier stage. But the maxim ut sit finis litium is an important principle of the administration of justice – whether expressed in traditional terms, in terms of a second bite at the cherry or, in more vigorous jurisdictions, as a second kick at the cat. In the Note, at para [12], in relation to the tenant’s proposals about the east bay, we said: “We took what was intended as a concluded view … in light of the evidence, the pleadings and our findings. We do not consider it open to change our decision without special circumstances and good reason”. We expressed a similar view in relation to the landlords’ proposals anent the jetty: at [25].

[10] For the tenant, Mr Kermack drew attention to the decision in Grant v Sykes 1983 SLCR 65. However, although that case may be viewed as an application of the broad principle, it can be distinguished because we accept that the Divisional Court based its decision on a view of the limited statutory powers open to it at the particular stage that case had reached.

[11] While the landlords’ proposals seem sensible and there may be scope for some commercial arrangement which would be persuasive to the tenant, we do not consider that it is appropriate for us, at this stage, to make an order in the terms sought. We are entirely satisfied that we should not now compel the tenant to construct a fence capable of supporting a deer fence. That would be an addition to the obligation we had decided to impose. In other words, we would not make his purchase conditional on provision of deer fence strainers at this stage even if he was to be reimbursed for the extra cost.

[12] The real difficulty relates to the reservation of a right in the landlords themselves to extend the fence by superimposition of a deer fence. On the one hand, the landlords’ proposal makes good practical sense. If there is an existing fence which can be extended without cost or inconvenience to the neighbour, it would seem sensible to allow that to be done. The crofter’s expressed concern about increased susceptibility to damage could, no doubt, be met by careful drafting of the reservation to make it clear that any cost attributable in any way to the deer fence was to be paid by the landlords. But we think this goes beyond clarification of our original findings. The crofter is entitled to buy his croft on the conditions we imposed. We see no good reason why we should now place the present crofter in a different position from any other landowner. If a party seeks to take advantage of an existing party fence to provide the basis of a specially high one for his own purposes, he will normally have to negotiate the matter with the neighbour although there might, in some cases, be circumstances in which he could pray in aid the March Dykes Acts 1661 and 1669.

[13] We accordingly refuse to vary the previous finding in relation to the fence by reserving any further right to the landlords.

Access tracks

[14] In the Note we said that: “there should be reserved to the landlords and those authorised by them unrestricted vehicular, pedestrian and stock access between the N-S track and the resumption area” [60 (m)]. The landlords now seek an express right to construct tracks between the N-S track and the resumed area.

[15] We are satisfied that this issue can reasonably be regarded as a matter of clarification rather than an attempt to raise something new. Unrestricted vehicular access over uncultivated ground can reasonably be taken to imply a right to take steps to provide a suitable running surface. Some guidance can be taken on this matter from the passages cited from Cusine and Paisley Servitudes paras 12.124 – 12.127 and 14.15. However, in the present situation we are not constrained by questions of the proper construction of an existing grant. When dealing with the proposed terms of a grant or reservation it is appropriate to spell out the matter explicitly where there is a dispute.

[16] We see no reason why the landlords should not construct a suitable track. Indeed, we had some concern at the outset that it might be preferable to limit the landlords to an identified track with a view to limiting the risk of erosion over indeterminate grazing areas. We did not do so because the tenant did not express concern on that score. The area of land in question would be insignificant compared with the area of the croft as a whole.

[17] The present problem is one of specification of detail. The landlords’ initial proposal was expressed in terms of a reservation to “construct … tracks or roads (sic, plural) for the purpose of exercising” the rights of access. This, apparently, gave the tenant a concern that the landlords might seek to “metal the entire area between the north south track and the resumption area”. The landlords subsequently modified their proposal to restrict it to a right to form temporary construction accesses and, thereafter, one access track.

[18] In response, the tenant pointed out that the landlord had resumed the N-S track and it was suggested that they could have sought to resume land for a cross track. The tenant contended that this “would have been more consistent than what is now proposed”. He also made submissions questioning the need for such track and pointing to the lapse of the planning permission for the proposed development within the resumed area. It is sufficient to say that we do not regard this as having any bearing on the present issue. Plainly the landlords will require to obtain planning permission before they proceed further. If they do not get it they will not need to make tracks.

[19] It was not suggested that construction of a permanent track would have any adverse impact on the tenant’s crofting operations. The land-take would be insignificant. We are satisfied that, if anything, there is likely to be a benefit to the crofter from a more defined and limited servitude route.

[20] We have considered whether it is necessary to spell out the precise line of track at this stage. However, we have come to conclude that this is not necessary. We had intended to allow unrestricted access. The landlords would be able to decide for themselves which route best suited their purposes. We conclude that they should be entitled to construct a track on the line they find most suitable. We think it appropriate to specify that it should be no wider than the 3.5 metres allowed for the existing track: see para [60 (d)] of the Note. We see no need to specify the standard of track. It is to benefit the landlords.

Formal orders

[21] The tenant’s motion for a formal order authorising purchase was not opposed and we see no reason not to pronounce such order at this stage. We note that the tenant had some concern about the two year limit imposed by sec 17(1). The present order will now provide a clear start date for that period. It can, of course, be extended by agreement of the parties or by application to the court before it expires.

[22] The tenant also sought an order authorising the Principal Clerk to execute a conveyance of the land in favour of the crofter in terms of sec 16(2). We consider such order premature. It is clear that the parties have faced, and continue to face, a number of difficulties in relation to the formal conveyancing. Some of the difficulties are due to the division of the landlords’ interests. Various landlords are involved. We are not persuaded that the involvement of the Principal Clerk, at this stage, would be an effective way of speeding up resolution of the difficulties. It appears that, following resolution of the issues relating to the two proposed conditions, there is likely to be broad agreement as to how matters can be concluded. If the tenant is able to identify any future instance of the landlords failing to make proper progress an application might be made for the court to fix a reasonable time for the landlords to take action. This would trigger use of sec 16(2). Although there has been an apparent delay since the date of our order, a variety of real difficulties have emerged in relation to conveyancing issues. It is clear that the parties have been able to cooperate over a number of difficult issues and there is no reason to assume that further sensible cooperation will not be possible despite the terms of some of the recent exchanges.