THE COURT

(Lord McGhie, Mr A Macdonald, Mr J A Smith)

GOURLAY v DOBLE & WALLACE

(Application RN SLC 136/03 – Order of 5 October 2010)

CROFTING – RIGHT TO BUY – RIGHTS OF ACCESS – APPROPRIATE CONDITIONS – WHETHER DISCRETION OF COURT FETTERED BY REFERENCE TO TENANT’S EXISTING RIGHTS – AIM TO PROTECT BURDENED PROPRIETOR FROM RISK OF SIGNIFICANT INCREASE IN ADVERSE EFFECTS OF ACCESS – RESTRICTION ON USE – MAINTENANCE – UPGRADING OF ACCESS ROUTE – NEED FOR CLARITY OF REAL BURDENS – SCOPE OF APPEAL – CROFTERS (SCOTLAND) ACT 1993 – CROFTING REFORM ETC (SCOTLAND) ACT 2007 – TITLE CONDITIONS (SCOTLAND) ACT 2003

A crofter applied to buy his croft and there was an appeal relating solely to the question of access to the croft subjects. The Court found that the crofter was entitled to orders for access over subjects owned by his landlord and over adjacent land owned by the second respondents. A hearing took place for the limited purpose of considering the conditions to be attached to the grant of the rights of access over the land belonging to the second and third respondents respectively. The Court made some observations as to the exercise of its discretion in relation to conditions for access. The tenant’s interest was obviously intended to be enlarged and in relation to the land to be conveyed there could be no question of the crofter being limited to the rights he enjoyed as a tenant. But the position in relation to rights over other land might be different. The crofter enjoyed the access for purposes connected with use of his land as a croft. That was the essential nature of the right. The Court had wide discretion and was entitled to take account of all relevant circumstances bearing on the use and impact of the access. The discretion of the Court was not fettered by any principle that the crofter as owner should necessarily have no more than he had as tenant. The Court would be guided by the aim of not significantly increasing the burden on a burdened proprietor although such an aim was merely a guide. The Court then dealt with a variety of real burdens proposed as conditions governing the exercise of the access.

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

[1] This case has a lengthy history. For present purposes it is unnecessary to say more than that it relates to a crofter’s application to buy his croft and that after proceedings before a Divisional Court we heard an appeal relating solely to the question of access to the croft subjects. Following issue of our decision on the substantive issues raised in the appeal, the applicant eventually lodged a Minute of Amendment seeking Orders requiring the third respondents, Mr and Mrs Wallace, to convey to the applicant or his nominees, the croft land and, separately, the croft house. In respect of each, he sought that there be included in the conveyance a heritable and irredeemable servitude right to use a specified road for the purposes of pedestrian and vehicular access to the subjects. The road or track in question is that shown as solid blue on the plan annexed and signed as relative to this note. Against the second respondent he sought an order requiring Dr Doble to convey to him a heritable and irredeemable servitude right to use the road running through Dr Doble’s property for the purposes of pedestrian and vehicular access to the subjects. The line of this road is shown coloured red on the said plan. He also sought a right of access over a separate route which runs through land owned by Mr MacColl. However, we were advised that this access would be resolved by agreement and we have not had to consider that matter.

[2] A hearing took place on 17 August 2010 for the limited purpose of considering the conditions to be attached to the grant of the rights of access over the land belonging to the second and third respondents respectively. At the hearing the applicant was represented by Mr S. Henderson, solicitor; Mr and Mrs Wallace by Mr D. Thomson, advocate; and Dr Doble by Mr T. Duncan, solicitor.

Statutory Material

Crofters (Scotland) Act 1993
Crofting Reform etc (Scotland) Act 2007
Title Conditions (Scotland) Act 2003

In this note, references to “the Act” or to specific sections are to the provisions of the Crofters (Scotland) Act 1993 unless the context is otherwise clear.

[3] At the outset of the hearing there was some discussion of the need for oral evidence. We were aware that various difficulties and disputes had arisen over practical use of the access road by the applicant as a crofting tenant and that allegations had been made seeking to explain the reasons for the actions of the various parties and the need for restrictions on access. However, it appeared that all parties were agreed that the issue for the court, as to what conditions were appropriate, should be based on an objective assessment of reasonableness which would not depend on personal circumstances of the parties. We were able to proceed on that basis. We are not required to express a view as to whether and, if so, when, it would be appropriate to have regard to personal circumstances.

[4] We have found it convenient to use the term “applicant” to apply, where appropriate, to the present applicant and his successors in title; to refer to the third respondents, Mr and Mrs Wallace, owners of the croft and the land subject to the route shown in blue, and their successors, as “the Wallaces” and to the second respondent Dr Doble and his successors as owners of the land subject to a right of access on the route shown red, as “Dr Doble”.

[5] Our detailed consideration of appropriate conditions was assisted by the terms of a draft disposition prepared by solicitors for the Wallaces. There was no dispute between parties as to the proper approach to the creation of servitudes and real burdens and we have not required to consider the technical validity of the approach taken. Although it was not disputed that the applicant was entitled to separate dispositions of croft land and the house site, the access conditions were discussed as relating to the croft as a whole. The concern of parties related to the substantive content of the conditions. We have dealt with matters on that basis. It is assumed that the solicitors will be able to reach agreement on the detail of the drafting of separate dispositions and suitable Deeds of Servitude by Dr Doble. If it does become necessary for the applicant to rely on the provisions of sec 16(2) of the 1993 Act or to seek a formal specific order of the court in relation to any particular matter, we shall put our findings into an appropriate order. We might require to hear further submissions at that stage.

[6] Before dealing with the detail of conditions, it is necessary to comment on what Mr Thomson advanced as an essential preliminary issue of principle. He contended that any grant of access should be restricted. The applicant was not entitled to more extensive access than he had as tenant. Mr Henderson, on the other hand contended that the applicant was entitled to an “unrestricted” right of access. He supported that simply by saying that this was what was expected and was normally agreed without difficulty. He pointed out that any restriction would compromise the crofter’s right as owner to develop his land. He did not attempt to support this submission by express reference to the statutory conditions either before or after amendment by the 2007 Act but, in subsequent submission on matters of detail, he made passing reference to the applicant’s “subsidiary” use of the subjects as a base for his haulage business. The applicant kept his lorry on the croft.

[7] Mr Thomson submitted that there was no onus on the respondents to justify particular restrictions. The only question was what the applicant had enjoyed as a crofter. As far as the Wallaces were concerned, the context was of a forced sale. They should not be required to give more than the crofter had enjoyed as tenant. He referred to the terms of our note of 4 December 2009 at [106]. He also referred to observations by the court at the start of the hearing on 14 October 2009, which we quote below.

[8] Mr Duncan’s submissions for Dr Doble on this issue were to the same effect. The applicant only had a right to what he had as croft tenant. He agreed that this depended on the nature of a tenant’s rights rather than the use which the tenant had actually been making at any stage. But, he contended strongly that the tenant was not allowed to increase the burden on the access route.

[9] We did not hear submissions as to the scope of the statutory conditions of tenancy but it was not disputed that the applicant did use the croft as a base for his haulage business and it was not suggested that this was outwith the scope of his rights as a crofter.

[10] The crofter plainly has right to acquire the landlord’s interest in the croft itself. No general issue of restriction can arise in relation to that. Parliament obviously intended the tenant to acquire the landlord’s interest. The tenant’s interest is to be enlarged. We may have to impose conditions to protect particular interests of the landlord in his retained land, but, in relation to the land to be conveyed there can be no question of the crofter being limited to the rights he enjoyed as a tenant of the croft itself. His use of the land will, of course, remain under control of the crofting legislation unless and until he seeks to de-croft it or any part of it.

[11] However, the position in relation to rights over other land may be different. The crofter, as tenant, enjoys a right of access for purposes connected with use of his land as a croft. That is the essential nature of the right. There is no explicit basis in the Act for any change in the nature of the access right. To take an obvious example, we are satisfied that if, as tenant, a crofter had a right to pedestrian access over his landlord’s retained land, he would not be entitled to require any conveyance to include a right of vehicular access. However, where there is an existing right of vehicular access it is more difficult to define its scope. The uses to which a crofter may put the land in terms of the Crofting legislation may vary. We are not persuaded that, in every case, the scope of use of the access must match the use to which the croft may be put. This may depend, for example, on how the access came to be created. Many existing access routes are plainly constrained by circumstances and would not be appropriate to the range of uses to which the croft itself might be put.

[12] The Act imposes no explicit restrictions on the exercise of our discretion in relation to conditions but we are satisfied that we must approach the exercise of our discretion with these considerations in mind. In [105] of the note of 4 December we put the matter as follows –

“Although the crofter’s right to access has been described as a right to unrestricted vehicular access, some restrictions are implicit. He exercises the right as crofter and his use of the croft is subject to the various restrictions implicit in his role as tenant. When converting the right to a right as owner, the Court might well consider it appropriate, depending on circumstances, to impose explicit conditions to give effect to the restricted right.”

[13] Mr Thomson made reference to the observations we made before the hearing on 14 October 2009. They were made in the context of remarks about the possibility of negotiated settlement. We were working from a prepared script and, for avoidance of doubt, it is appropriate to set out fully what was said. We said –

“Had we been sitting as a court of first instance we would expect to consider whether the crofter’s apparently unfettered rights as a crofter were necessarily appropriate as rights to be given to him as owner. We might have wished to define the rights rather than leave them to fall under the term ‘fully commensurate with his existing rights’. A crofter has access for agricultural and related purposes. He cannot divide his croft without consent. If we, as the Court presently constituted today were giving a conveyance which included rights of access, we would expect to impose some more explicit conditions. Our main aim would be to ensure that the burden on the burdened subjects was not likely to be increased by change from tenant to owner.”

We then went on to mention specific examples such as maintenance conditions and locked gates.

[14] We have had some difficulty in attempting to define matters more precisely although it can be said that our main aim might have been more accurately expressed in terms of a burden being “significantly increased” rather than simply “increased”. We are satisfied that our discretion allows us to have regard to the interests of the burdened parties and that we are entitled to impose such conditions as we consider appropriate on the use of the access. We have proceeded on that basis.

[15] We are not persuaded that our discretion is fettered by a principle that the crofter as owner should necessarily have no more than he had as tenant. Plainly, the Act intended to increase his rights. In particular, he is plainly to be free of any conditions which depend on consent from his landlord. But, as we see it, the real difficulty is that the application of a principle that a crofter is simply entitled to what he had as tenant would provide no basis for protection of the burdened proprietor. As tenant, the crofter is entitled to make any purposive use he can of the croft subjects. The present crofter uses them as a base for a haulage business. He is entitled to use the whole track for his vehicles although he is at present able to make use of an alternative route by agreement with another proprietor and currently does not make much use of the track within Dr Doble’s land. It was not suggested that his right of vehicular access was limited to domestic vehicles.

[16] We consider that we should be guided by an aim of not significantly increasing the burden on a burdened proprietor but that such an aim is merely a guide. It does not fetter our discretion. We are satisfied that the Act gives the Court a wide discretion and that we are entitled to take account of all relevant circumstances bearing on the use and impact of the access. Parliament would have been aware that there is a wide variety of access routes serving crofts. Use of increasingly heavy agricultural machinery can, itself, greatly increase the impact of access and where routes pass close to dwellings it may well be appropriate to impose specific restrictions as to time or frequency of use.

[17] In the present case, the main dispute related to the number of houses on the croft to be served by the access. The respondents sought to limit use of the existing subjects to one dwellinghouse. In other words if the house site was disponed to one party, as requested, the remainder would require to remain as bare croft land. Mr Henderson sought an unrestricted grant. However, he supported that simply by reference to the applicant’s intention to procure the existing croft house for his mother and to build another house for his own family. He suggested that there was, already, a mobile home used as a dwelling on the croft land. He contended that restriction to one dwelling would prevent the applicant from developing a home. In short, the practical issue was presented in terms of a dispute between use of the access to service one dwelling or two.

[18] Mr Duncan pointed out that as a crofter, the applicant was limited to one house in terms of Condition 8 of the statutory conditions. He could not have two houses without consent of the landlord. However, as we have noted it was clearly the intention of the right to buy provisions that a crofter be freed from the need for consent from his landlord. We are aware that it has become extremely common for crofters to split the house site from the rest of the croft and build another home. In many cases this is to allow two members of the family to live on the croft. As discussed above, we do not accept that the exercise of our discretion is strictly governed by reference to the applicant’s rights as tenant and it follows that we do not require to make an assumption of strict compliance with conditions which are routinely ignored or waived. Our main aim is to make a proper assessment of the potential effect on the respondents as proprietors of the burdened subjects.

[19] As noted above, at the start of the previous hearing we observed that a tenant could not divide his croft. We had in mind the provisions of sec 9. For completeness, it should be said that we have recently had to consider the scope of the prohibition on division: Lamont v Kennedy, SLC 160/09. Clearly, the type of division which arises when a crofter acquires a house site separate from the remaining croft land was within the contemplation of Parliament and Mr Thomson said he was not relying on any technical point about division.

[20] It may also be noted that there was no attempt to suggest that any distinction should be drawn between the conditions appropriate in relation to the route over Dr Doble’s land and those relating to the Wallaces’ land. We consider that the main concern relates to the access over Dr Doble’s land. Although the route has been moved from the immediate vicinity of his home, use of the access will have some impact on the amenity of his dwelling. The route over the Wallaces’ land raises no such immediate concern although it is likely that they will seek to develop their retained land and they quite properly wish to minimise the impact of the access. Most of the detailed discussion took place in relation to the draft dispositions to be granted by the Wallaces but we consider that it in practical terms the balancing exercise can be conducted by reference principally to the impact on Dr Doble’s subjects.

[21] We have no doubt that there should be some restriction. Dr Doble should not be at risk of being burdened with access for any large scale development or any significant increase in the number of vehicles using the access on a regular basis. But, we are satisfied that an increase from one dwelling to two would not be likely to impose any significant increased adverse impact on Dr Doble. There would, no doubt, be significant short term increase during the period of building works but in considering the impact of long term heritable burdens, we think this a minor matter. We do not consider that mere increase in number of vehicles using a route has any direct correlation with the impact on adjacent dwellings. In practice, two or three vehicles are not significantly more of a burden than one, when considering their impact on the quality of life of residents. The route of the access has been moved away from Dr Doble’s own dwelling. Any increase in numbers may well affect issues of maintenance but, as appears below, it has been agreed that maintenance be shared on the basis of user. In any event, the likely increase in number of domestic vehicles would hardly be significant in comparison with use by commercial vehicles. We accordingly consider that any additional impact from use for two dwellings rather than one would be insignificant.

[22] It was not disputed that the applicant had right to use the access for a lorry or lorries in connection with his subsidiary use of the croft in connection with a haulage business. He currently uses the blue section for that purpose and would be entitled also to use the route over Dr Doble’s land. It might be thought that use of the access would be less if the applicant was running the croft and his lorry business from the croft rather than having to travel back and forth each day. However, actual use would be influenced by the activities of other members of his household and we accept that there would, almost inevitably, be some increase in the number of journeys made. But, as we have said, we do not consider that in practical terms there is any immediate relationship between frequency of journeys and the impact on the burdened subjects.

[23] We turn now to matters of detail and deal first with the minute lodged on behalf of Dr Doble and spoken to by Mr Duncan. This set out four issues to be dealt with in relation to the proposed terms and condition. The first related to the line of the access route. It referred to the varied line approved by the Divisional Court and there was no dispute about this.

[24] The second contended that the right of the applicant to use the access route should be made subject to the various restrictions implicit in his role as tenant and be no greater than the right that he has in his role as tenant of the croft. We do not accept this as a condition which can reasonably be made a real burden. The nature of the restriction is not apparent on the face of the condition. We think that, in substance, Dr Doble’s concern under this head will be met by the more specific range of conditions proposed on behalf of the Wallaces and we consider these in due course.

[25] The third proposal was that the applicant should be found liable for a share of maintenance of the access route according to user. This was not disputed by the applicant and is reflected in our discussion of the Wallaces’ draft conditions.

[26] The fourth was that the extent of use be limited to agricultural use and the domestic needs of one dwellinghouse on or pertaining to the croft. We have dealt with that contention insofar as relating to the number of houses. We shall deal with the implications of the proposed restriction on use in relation to access in the context of the Wallaces’ draft conditions below.

The third respondents’ draft conditions

[27] The dispute between the applicant and the third respondents was focused by the draft disposition and it is convenient to deal with matters in the order there set out.

[28] The draftsman adopted the scheme of setting out servitudes benefiting the subjects, followed by real burdens imposed on the subjects and in favour of the retained property. It then set out servitudes to be imposed on the subjects followed by real burdens, said to be imposed on the retained property, in favour of the subjects. In each case, the real burdens were, in effect, intended as qualifications or conditions governing the servitudes. We adopt the same labels. We hope that the following comments will provide sufficient guidance for the conveyancers. There should be no great difficulty in converting the material discussed under reference to the Wallaces’ draft disposition into a suitable Deed of Servitude to be granted by Dr Doble. In any event, as undernoted, we expect a further hearing to be necessary to deal with expenses and we would be prepared to put any points of difficulty into a formal Order if requested at that time.

Part 1

Unless specifically mentioned below, we do not accept the applicant’s proposed revisals of the Wallaces’ draft. Some issues might possibly have been seen as matters of style. For example, there was a proposal to add explicit reference to “wayleaves” after the word “servitude” in the introductory material. We do not require to discuss the scope of the concept of a servitude for the purposes of the present exercise but we are mindful, in general terms, of the provisions of the Title Conditions (Scotland) Act 2003 and we think it makes sense to treat conventional wayleaves as covered by the term “servitudes”. Where a particular wayleave has been taken in exercise of statutory powers, different considerations will, of course, apply but that will normally be a matter for statutory undertakers rather than an issue of private right.

1. We shall go on to discuss the proposed restriction at Part 2 1.1. However, we consider that this provision should stand as drafted. Although there may be difficulty in identifying the scope of any restriction, express or implied, it is clear that reference to “unrestricted access” is not appropriate.

We observe that neither party made any attempt to propose an express provision dealing with a right of a benefited proprietor to carry out works of maintenance or improvement to the access route at his own hand and at his own expense. This applies to the servitude to be conveyed at Part 1 and at Part 3. The agents may well have accepted the right implied at common law as an essential aspect of the primary right and as being sufficient for their purposes. In these circumstances, we see no need to make express provision for this. We would, however, observe that it does give rise to potential for conflict. We might have been sympathetic to conditions designed to minimise the potential practical conflict between the rights of parties to carry out work on the route. Some provision as to notice might have been appropriate. However any such exercise does present its own problems and we do not attempt it at our own hand.

2. We accept that access for maintenance of services should not be limited to pedestrian access. In practice, this work would be likely to be carried out by service providers. They would expect vehicular access and the ability to use mechanical diggers where appropriate. The burdened proprietor is protected by the provisions set out in Part 2.

Part 2

1.1 As discussed above, we consider the restriction to one dwellinghouse to be inappropriate. However, we accept the broad principle that the change from tenant to owner does not justify any material increase in the burden. Mr Henderson contended that a restriction to agricultural purposes was too narrow. The current use was for all uses permitted to a crofter. He explained that the applicant had been using the subjects as a base for a haulage business. He required access for his lorries. This was a permitted subsidiary use. We note, for completeness, that the changes made by Section 7 of the 2007 Act do not appear to affect this use. It is our understanding that the use for the lorry predated the change.

We have based our decision on the submissions of the parties and the circumstances of the present case. Although the present use of the croft as a base for a haulage business may well be more burdensome than any likely alternative use, we agree that the respondents should be given as much protection as possible to avoid risk of any significant increase in burden arising from change of use. We consider that in all the circumstances it is reasonable to make express provision for the current right but to limit future use to that required for agricultural purposes. We have determined that this condition should be revised to read:

“1.1 To exercise the right of access for not more than two residential dwellings; for use in connection with the applicant’s existing haulage business; and for use for agricultural purposes; providing for the avoidance of doubt that use for these purposes includes use for construction and maintenance of any buildings reasonably required.”

We note, however, that if two separate dispositions are to be granted the use in respect of the house site should be limited to residential use for one dwelling. The disposition of the croft land would be limited to one dwelling and by the other restrictions expressed in the previous paragraph.

1.2 This was accepted.

1.3 This sought to impose a condition that access be exercised in accordance with any reasonable written instructions by the burdened proprietor. This is not unreasonable in itself and we note that it was proposed in relation to access over the croft in Part 4 of the draft. However we see no need for such a condition. It seems to us that acceptance of liability under 1.2 is sufficient to cover the essential interests of the burdened proprietors. No doubt it would be sensible for users to follow instructions and failure to do so might be an important adminicle of evidence in relation to any allegation of a breach of 1.2. But we see no need for the creation of an express provision which would have potential for creation of a friction point between proprietors. This should be deleted.

1.4 This was accepted.

1.5 This was a provision which was said by Mr Thomson to do no more than spell out, in modern English, the common law obligation to exercise a servitude civiliter. Mr Henderson contended that it was drafted in a way which was inappropriate for vehicular access. However, we accept Mr Thomson’s contention. We consider that, broadly, the provision does, with tolerable accuracy, reproduce the implied condition that access be exercised civiliter.

1.6 Mr Henderson opposed this condition which would require the applicant to make good all damage caused to the access route by exercise of the servitude of access. We think this a reasonable provision in relation to both the access and the wayleaves for services. However, we consider that the reference to the reasonable satisfaction of the owner creates an unnecessary level of uncertainty as to the standard required. Mr Henderson contended that the whole provision was unnecessary as the owner would have a remedy in the Sheriff Court. However, it is clear that, in the event of dispute, there would, in any event, have to be reference to the sheriff. The main significance of the provision is that it makes it clear that there is no need to prove fault. If damage is caused by use of the access, the benefited proprietor will be obliged to make it good. If there is a dispute as to whether or not he has done so, it can be resolved by the sheriff.

In short, the words “and to the reasonable satisfaction of” should be deleted.

1.7 This would require the benefited proprietor to ensure no pollution or undue disturbance to any part of the retained property by use of the servitudes. Mr Henderson sought to restrict this to the right of access and not the rights for services. But, we see no need for this. The provision can apply to both servitudes. He also objected to the reference to ‘undue disturbance’. Mr Thompson contended that this latter provision was not fundamentally unreasonable but he recognised that it did overlap other conditions such as 1.5 and 1.6. However, it is not clear what is added by this provision. We are satisfied that where there is a dispute we should aim to see to it that real burdens are clear in scope and effect. The words “or undue disturbance” should be deleted.

1.8 We heard some discussion about this provision insofar as it required erection of a stockproof fence. However Mr Thomson clarified the intention. The provision should not have appeared as being related to exercise of access. It was a separate provision relating to fencing of the subjects themselves. We think that such a fencing provision should be restated as part of the condition at Part 2 para 3. We think that the words at the end of the second line should read “along the eastern boundary of the subject with the Retained Property…”

As far as the other parts of 1.8 were concerned, Mr Henderson accepted that there should be provision for the applicant to be liable for maintenance and replacement of the cattle grid where the access road entered the subjects. We understood him to say, in essence, that there was no need for other provision in relation to the access route within the subjects. This matter had been dealt with by the Divisional Court in their order at 4(3)(i).

We did not hear detailed submissions on this particular issue. Mr Thomson made reference to the finding of the Divisional Court and suggested that we should not see this as exhaustive. However, we think it important to distinguish between control of livestock on the croft and control of livestock in relation to the access. It is only with access rights that we are dealing in this appeal. We have heard nothing to suggest that there is any need for fencing of the access route as a means of stock control. It can be assumed that animals are moved in vehicles.

We are satisfied that it is reasonable to provide that the applicant keep all gates shut when not in use for access. Maintenance of gates across the access should properly be regarded as part of the cost of maintenance of the access.

1.9 The applicant proposed revision to spell out that paragraph 2 of Part 1 related only to ‘wayleaves’. We think the revision unnecessary for this purpose.

2. Mr Henderson did not accept the various proposals set out in under paragraph 2 of Part 2. He contended that a simple condition requiring the applicant to pay a share of the cost of maintenance, repair and renewal along with other users would be reasonable.

The Wallaces’ proposals dealt with a variety of matters of detail. There is always a risk that provisions made in abstract or without regard to particular circumstances, may produce inequitable results and attempts to provide for every eventuality have a habit of proving deficient in the event. But, we think there is some merit in regulation of detail to avoid the more obvious areas of difficulty.

2.1 We think that the proposals here are broadly reasonable. The underlying principle is that the burdened proprietor should be entitled to do what he wishes with his land subject to the rights of the benefited proprietor to use it for access. However, there is a potential conflict in relation to works of maintenance. Where the benefited proprietor is to pay a share of maintenance, he should not have to pay for any fanciful ideas of the proprietor. This is recognised by the draft but we think that it is appropriate to apply a direct test of reasonableness rather than reference to what the proprietor considers reasonable. If there is a dispute, the Sheriff will be able to make a direct assessment rather than attempt the exercise of whether the proprietor’s views are reasonably held. Real burdens should be expressed in direct terms.

In short, the words “in the reasonable opinion of the Disponer” should be deleted and the words “reasonably” substituted.

2.2 This deals with the cost of the work. There was no dispute about liability to pay a fair portion according to use. However, the machinery for payment seems to us inadequate to meet the situation. There are four matters to consider: the work covered by the obligation to pay; the fair cost of such work; the appropriate share; and time for payment. We note that 2.1 does not deal with work of upgrading, the liability relates to maintenance of the upgraded route and it does not impose an obligation on the benefited proprietor to pay for the actual work of upgrading. We consider that an obligation to pay a share of the proper and reasonable costs incurred in carrying out maintenance of upgraded works is unexceptionable.

The period of 28 days for payment is, in itself, fair. Interest would not run until the end of that period. However, if the croft is split, the benefited proprietors will only be liable for a share according to their own use. Until the proper share is determined, it may not be possible to identify any sum as ‘due and payable’. In the circumstances we see no purpose in the second sentence. Under Mr Henderson’s revision, the burdened proprietor will be able to make a claim for immediate payment of an appropriate sum. If payment is not made, or is disputed, he will be able to go to court to seek to enforce the claim. In short, we consider that the second sentence in 2.2 should be deleted.

It may be added that the submissions we heard did not attempt to address expressly the potential difficulties of a division of title of the croft. We hope that the conveyancers will be able to agree as to how this is to be dealt with, but it may be necessary to consider this issue further if problems arise.

2.3 We are satisfied that a burdened proprietor is free to make the changes proposed by the draft and we accept this is, broadly, a reasonable provision. It may change the nature of the extent of maintenance required but we think this unavoidable. In many cases upgrading might be expected to reduce the burden of maintenance although we suspect that, in the long term, such matters may well even out. We think that, in the context of upgrading work generally, the reference to the reasonable discretion of the proprietor does not prejudice the applicant and it is not necessary for us to express any further view.

We did have some concern about the reference to traffic calming measures. Having regard to the obligation undertaken under 1.2 and 1.5 there may be no obvious need for artificial traffic calming measures. But, we recognise that there may be changes in the use made of the route by the proprietors and their successors. As discussed above we are considering these conditions from the viewpoint of Dr Doble as well as Mr and Mrs Wallace. If, for example, the latter develop their land with access over Dr Doble’s property some traffic calming may become necessary. As all work is to cause the least practicable disturbance to the applicant’s use of the route, we have concluded that this condition can stand.

2.4 Mr Henderson raised the question of whether this was necessary as a real burden. He thought the question would only arise in relation to statutory suppliers and that it should be left to them. However, where services have been provided by agreement and with the benefit of a servitude of wayleave, we do not think that the providers would expect to rely on statutory powers. Maintenance work will be much simpler if they do not require to do so. We consider this a reasonable provision.

3. As discussed at 1.8 above, we think this provision should be rewritten to deal specifically and solely with the east boundary. This complies with the order of the Divisional Court. We are not prepared to impose any wider fencing conditions. Our hearing was limited to the issue of access. The general issue of fencing was a matter for the Divisional Court and was dealt with by them.

It may be added that, as a practical court, we are normally anxious to deal with real issues when they arise and reluctant to place undue weight on legal technicalities. Had we been satisfied that there was an outstanding issue which could readily be resolved by us and which had been overlooked before the lower court, we might well have been prepared to deal with it. However, we do not think that the issue of fencing the foreshore falls into that category. Although the Wallaces have title to the foreshore, the general question of relevant rights in the foreshore is not straightforward. The need for such fencing on this croft has not been demonstrated. The crofter will have to provide fencing for stock control. However, any need to fence at the boundary itself would be likely to give rise to many practical difficulties having regard to the nature of the land adjacent to the foreshore. This was a matter for the court below. It did not impose any such condition.

4. We have dealt, above, with the substantive issues underlying this condition. We are satisfied that the applicant should be free to divide the croft between the house site and the rest of the croft. If two separate dispositions are to be granted, a prohibition on subdivision would be irrelevant. However, we are, in any event, satisfied that no part of this provision is necessary as a qualification or restriction of the servitude granted in Part 1. We consider that the interests of the burdened proprietors will be adequately met by the terms of the other conditions discussed above. Further, a prohibition on subdivision may well be thought repugnant with ownership of the land: Section 3(6) of the 2003 Act.

The condition appears to be mainly concerned with rights of access over the croft. This might have been expected to appear as a condition under Part 4 but any such provision would be subject to the observations we make about proposed conditions under that Part.

Part 3

The question of appropriate rights and conditions of access over the croft land was fully discussed before the Divisional Court. It was not the subject of appeal and we do not regard ourselves as having jurisdiction to deal with such matters at this stage. We did hear submission that the dispute was essentially over the precise implications of the Divisional Court’s award rather than its substance. We are prepared to try to assist parties specify conditions within the scope of the original decision. In relation to the specification of the access to the foreshore, the applicant sought an explicit restriction that the right to park be limited to land immediately adjacent to the foreshore. However, we see no need for this when the right is limited to loading and unloading. It can be assumed that drivers will park as close as practicable to the foreshore and we see no need to spell this out. A right of access for new services is requested. Mr Henderson resisted this simply on the ground that it was unusual. We accept this as unusual but we think it is sensible and reasonable amplification of the right of access for business purposes on the foreshore. We consider the proposed conditions 2, 3 and 4 to be reasonable

Part 4

1.1 The Divisional Court heard submissions on the question of restricting the purposes for which the access should be granted. Here again, Mr Henderson submitted that we should not go beyond the findings of that court. We do not think it open to us at this stage to add a new purpose. This condition should be revised to delete the reference to “renewable energy”.

We did not understand there to be any opposition in substance to the other conditions proposed on behalf of the third respondents although Mr Henderson proposed various revisions to bring them into line with the conditions he was prepared to accept under Part 2. However, while we might expect the Wallaces to be prepared to accept most of his proposals as reasonable, we do not consider that it is appropriate for us to become further involved in these issues. They do not arise out of the appeal. If they cannot be agreed the conditions proposed on behalf of Mr and Mrs Wallace can stand.

As noted above, the condition drafted as Part 2 condition 4 might have been thought more appropriate under Part 4. We have dealt with the issue of sub-division. If any other implications cannot be dealt with in a way consistent with the decision of the Divisional Court, they will have to be omitted.

Expenses

We have reserved the question of expenses. Although Mr Thomson and Mr Duncan made clear their intention to move for expenses against the applicant, we did not reach the stage of hearing formal motions. We must assume, for present purposes, that Mr Henderson will resist these motions and move for expenses, in whole or in part, against the respondents. In attempting to determine the most appropriate procedure now to follow, we have not attempted to make any assessment of the probable outcome of such motions. What seems clear is that there are likely to be disputed issues of fact. Questions of expenses fall to be determined on a broad basis. Courts have always been reluctant to see parties commit themselves to significant further expenditure simply to resolve issues of expenses. It is to be hoped that the written material will provide sufficient information. However, the allegations which we have heard did suggest that the most effective approach would be to appoint parties to lodge Minutes in support of their position on expenses. These should set out clearly any factual matters which are relied on. Once we have seen the terms of such minutes we shall consider further procedure either by way of answers or by requiring parties to specify how they expect to establish any disputed issues of fact. We do not wish to constrain parties in any way and we understand that the two interests will not necessarily be identical. However, if it was possible for the second and third respondents to combine in a single minute this might greatly simplify procedures. We understand that they will have quite distinct interests as against the applicant but are not, at present, persuaded that there is any likelihood of conflict between them. However, this should be understood to be no more than a suggestion.

Security for Expenses

Both respondents expressed concern that, as the applicant was now seeking to have the croft conveyed to persons other than himself, this would reduce the security they would otherwise have had for payment of any award of expenses which might be made in their favour. It was suggested that payment of expenses should be made a condition precedent to the obligation to convey. We see the force of this and we shall consider how best to protect the respondents if any award is, indeed, made in their favour.

For the applicant: Mr S. Henderson, Solicitor, Portree

For the second respondent: Mr T Duncan, Solicitor, Linlithgow

For the third respondents: Mr D Thomson, Advocate; Brodies, Solicitors, Edinburgh