THE COURT

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

GOURLAY v DOBLE & WALLACE

(Application RN SLC 136/03 – Order of 4 December 2009)

CROFTING – APPEAL – RIGHT TO BUY – RIGHT TO ACCESS – ACCESS OVER ADJACENT LAND FORMERLY OWNED BY CROFT LANDLORD – CONDITIONS OF ACCESS – LANDLORD ACCEPTING RESTRICTED CONDITIONS OF ACCESS – CONTRAST BETWEEN CROFTERS RIGHT OF ACCESS AS CROFTER AND POTENTIALLY RESTRICTED RIGHTS AS OWNER – EXTENT OF DUTIES OF LANDLORD – NATURE OF OBLIGATION ON BURDENED PROPRIETOR – ABOLITION OF THE FEUDAL SYSTEM (SCOTLAND) ACT 2003 – CROFTERS (SCOTLAND) ACT 1993 SEC 12-16 – CROFTING REFORM (SCOTLAND) ACT 1976 – HOUSING (SCOTLAND) ACT 1987 – LAND REFORM (SCOTLAND) ACT 2003 – TITLE CONDITIONS (SCOTLAND) ACT 2003

The tenant of a croft applied to buy the croft. Rights of access to the croft were by a long track over land which was formerly owned by the croft landlord but which since 1992 had been sold to other parties. In recent times access had been taken by an old railway track but it was not suggested that any right of access had been established. It was agreed that, as crofter, the applicant had rights of access over the third party land as a pertinent of the croft which were not fettered by the terms of any deed of servitude or by any other title conditions. That the right was part of his croft and that he enjoyed security of tenure in respect of it. When the land had been sold a broad right of access was reserved to the original croft proprietors, commensurate with the right enjoyed by the tenant. However, the croft itself was sold and the new proprietors entered an agreement with the third parties which gave them a servitude right of access subject to restrictive conditions set out in a Deed of Servitude. It was apparent that if the crofter required to rely on the croft proprietor’s rights he would be subject to restrictions on his use as owner which he would face as tenant. For example, he would be subject to a condition where gates across the access would be locked and he would only be allowed one key. The Divisional Court granted an Order which would compel his landlord to procure an unrestricted access and convey such right to the applicant. It was contended that this was incompetent.

HELD that the landlord could not be compelled to grant a conveyance of greater rights than he had but that it was competent for the Court to order the party subject to a right of access to grant a conveyance of such right. The case was continued for further procedure to determine appropriate conditions.

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

Introduction

The third respondents, Mr and Mrs Wallace, landlords of the croft known as The Knapp, challenged the decision of the Divisional Court of 21 December 2007 on the ground that the Court had erred in pronouncing an Order which, in effect, would compel them to obtain and convey to the applicant a better title to the right of access to the croft than they themselves currently held. It was not disputed that, as tenant, the applicant had an unrestricted vehicular right of access to the croft over the route described below but the landlords’ heritable title to that right was now subject to various conditions. The Court had ordered the conveyance to be free of such conditions.

The Note of Appeal intimated that the third respondents also sought leave for an additional proof to be arranged. This was to relate to the circumstances in which the conditions on the right of access came to be imposed and the reasonableness of the conditions in such circumstances. Put shortly, it was contended that the procedure adopted in the Court below meant that the third respondents had not had a proper opportunity to deal with these matters. It is sufficient, for present purposes, to note that this latter proposition was strongly disputed by the applicant in his written Answers.

Some difficulties were experienced in fixing a date for the appeal, due to problems of availability of parties or advisers. Eventually a date was agreed for hearing of the appeal. Due to a misunderstanding, the Order of the Court formally fixing the agreed date referred to a “proof before answer”. An Order in such terms would be unusual in our practice and was inappropriate in the present case. At the start of the hearing, the parties confirmed that they were happy to deal with the appeal by way of submissions in the usual way, reserving any question of further proof until the substantive issue had been resolved.

At the hearing the applicant was represented by Mr Sorley Henderson, Solicitor; the third respondents by Mr David Thomson, Advocate and the second respondent by Mr Thomas Duncan, Solicitor. There was no appearance on behalf of the first respondent Mrs Kimie Macalpine-Downie, landlord of the croft at time of the first application to buy, or on behalf of Mr Ronald MacColl, who had been named as fourth respondent but had never entered the process. We heard the appeal at Edinburgh on 14 and 15 October 2009.

Legislation

Abolition of the Feudal System (Scotland) Act 2003.
Crofters (Scotland) Act 1993 (“the 1993 Act”)
Crofting Reform (Scotland) Act 1976
Housing (Scotland) Act 1987
Land Reform (Scotland) Act 2003
Scottish Land Court Act 1993
Title Conditions (Scotland) Act 2003

Unless otherwise clear from the context, all subsequent references are to sections of the 1993 Act.

Texts

Agnew Crofting Law

Cases

Bowers v Kennedy 2000 SC 555
Campbell v Duke of Argyll’s Trs 1977 S.L.T. (Ld. Ct.) 22
Campbell v Trustees of 10th Duke of Argyll 1960 SLCR App 71
Garvie’s Trs v Still 1972 SLT 29
Gibson v Royal Bank 2009 SLT 444
Macdonald v Macdonald 1960 SLCR 22
MacDo nald v MacDougall (1896) 23 R 941
MacLean v Fletcher 1965 SLT (Land Ct) 5
Rodger (Builders) Ltd v Fawdry 1950 SC 483
Ross & Cromarty District Council v Patience 1997 S.C. (H.L) 46
Scottish Ministers v Pairc Trust Ltd and Others 2007 SLCR 166

Essential background

[1] The applicant is tenant of a croft known as “The Knapp” (otherwise “The Knap”) which extends to some 11.5 hectares and forms an attractive peninsula situated at the southern end of the Sound of Shuna. It is reached from the A828 public road from Ballachulish to Appin by means of a track which breaks off the public road at Portnacroish. At one time all the relevant land belonged to the MacAlpine-Downie family but over the years parts were sold off, including sale of Stalker Cottage to Mr MacColl in 1992, of West Dallens to Mr Doble in 2002 and further areas, including The Knapp, and the adjacent site of a former mink farm, to Mrs and Mrs Wallace in 2004.

[2] From the road, the track runs through Mr MacColl’s land, through Mr Doble’s land at West Dallens, then across the line of a former railway, now owned by Scottish Ministers and finally passes onto the croft over land owned by Mr and Mrs Wallace adjacent to the site of the former mink farm. Until the recent events discussed by the Divisional Court, the route of the access track passed immediately in front of Mr Doble’s house. We refer to that as “the original route”. When the land at West Dallens was sold to Mr Doble, Mrs MacAlpine-Downie reserved a right of pedestrian and vehicular access along the original route to the subjects forming the croft and the former mink farm. This was subject only to a maintenance obligation whereby the parties entitled to use it shared the cost according to the extent of use.

[3] Mr Doble wished to extend his house and diverted the track so that it ran across his land some distance to the west of the house. The diverted track entered Mr MacColl’s land at a point to the west of the original track and a new loop was formed on the MacColl land to join the old track where it ran through his land. We understand that Mr MacColl has agreed to grant appropriate rights in relation to that loop. We proceed on the basis of that understanding, as did the Court below. We also understand that although the state of the title is not entirely clear, Mr MacColl is in a position to grant such rights.

[4] The issue of the change of route took up much of the hearing before the Divisional Court. Although some questions arise as to the nature and extent of the respective owners’ heritable rights over that route compared with the original route and over the issues of consent to the new route, it is convenient to discuss the substantive issues as if the new route had always been that used by the croft. Accordingly, references to “the track” or “access route” are to the new line of the track unless the context is otherwise clear,

[5] It may be noted that, although the crofter has, in recent years, been able to make use of the disused railway line to get access to the croft, he has no right to do so and it is understood that the Scottish Ministers, as owners, plan to convert the line to a pedestrian tourist route. The track is, accordingly, an essential means of overland access to the croft. However, there was no suggestion that anything turned on this. We mentioned the decision in Bowers v Kennedy in the context of the distinction between a necessary access and a servitude but it was agreed that that case had no bearing on the facts of the present.

[6] After Mr and Mrs Wallace had acquired the croft subjects they entered into a deed of servitude in respect of the new access route which entitled Mr Doble to install locked gates, cattle grids and speed bumps and which imposed onerousrepair and maintenance obligations on the owner of the benefited property. It also introduced a condition that sub-division of the benefited property would be deemed to increase the burden on the burdened property and be a material breach of the servitude conditions. The “benefited property” in terms of this deed is The Knapp.

[7] The circumstances leading to the execution of this deed were not explored in evidence. As we have noted above, the first respondent had reserved rights over the original route in broad terms and subject only to an obligation for maintenance. On the face of it, the change from the old route was entirely for the convenience and benefit of Mr Doble as burdened proprietor. The new route was longer and less convenient for the crofter because it included a bend which required special attention; for example, by lorry drivers making deliveries to the croft. There was no obvious explanation for acceptance by the third respondents of additional onerous conditions. However, Mr Thomson stressed that the way the initial case had been presented meant that it had been unnecessary and inappropriate to lead evidence on the point. He said that there were reasons for the change and that evidence of this could be led if it became relevant to do so.

[8] We must proceed for present purposes on the basis that the second and third respondents may well have been acting in good faith. But, the fact remains that rights which the latter have accepted as owners of Knapp are now very restricted compared with the rights enjoyed by the applicant as their tenant of the same subjects. It may be noted for completeness that although they also accepted some restrictions in respect of their rights of access to the former mink farm over Mr Doble’s land, overland access to these subjects can be obtained without crossing his land.

[9] It was agreed that as tenant of the Knapp, the applicant had a right of access as a pertinent of the croft. That right was part of his croft and he enjoyed security of tenure in respect of it: MacDonald v MacDougall. It was a right which existed independently of any access right contained in the landlord’s heritable title: MacLean v Fletcher. It was agreed that this court could not create pertinential rights, only declare their existence: Campbell v Trs of 10th Duke of Argyll.

Submissions

Submission for appellants

[10] The Note of Appeal was supported by a full Statement of Ground of Appeal to which reference can be made and we do not repeat all the detail of it. However, we attempt to summarise the substance of the submission.

[11] Counsel opened by submitting that the Court had erred in law in relation to two specific parts of the Final Order pronounced on 21 December 2007. The provisions of Part (Fourth) at (5) should be deleted. This part of the Order purported to require the Third respondents to include in the conveyance to Mr Gourlay a “heritable and irredeemable right of access … fully commensurate in terms of usage with the pertinential right of access hitherto exercised by the applicant … and free of any conditions entitling [other parties] to restrict, obstruct or hinder use of said right … subject to payment by the applicant … of a share of the cost of maintenance of the same according to user”. The related provisions at (Fourth) (6) to the extent of the words “except insofar as inconsistent with (5) above” would also have to be deleted.

[12] The main ground of appeal was that it was incompetent and, separately, an error of law, to grant an Order which included a requirement that the landlords had to procure new rights for the benefit of the croft land in order to grant a disposition in favour of the tenant when they could not grant such rights at their own hand and when the granting of a disposition in such terms would be at odds with the existing title conditions. Such an Order was incompetent in respect that it amounted to an attempt to adjudicate upon issues of heritable right and title. The Court’s jurisdiction was strictly limited to the powers given to it by statute: Garvie’s Trustees v Still. The jurisdiction conferred upon the Court by statute was set out in section 1(6) of the Scottish Land Court Act 1993.

[13] It was suggested that the approach taken by the Court below meant that questions of “reasonableness” of any title conditions would be considered as incidental matters under the 1993 Act thus by-passing the provisions of the Title Conditions (Scotland) Act 2003 which conferred jurisdiction on the Lands Tribunal for Scotland to deal with issues of “reasonableness” in the context of a careful scheme of specific factors to be taken into account. Such an approach was erroneous.

[14] It was contended that, although the Divisional Court had indicated that it accepted that it would not be proper to seek to derive assistance from the provisions of the Housing (Scotland) Act 1987, the Court’s reasoning showed that it had in fact been influenced by the provisions of that Act and the case law relating to it. There was nothing in the 1993 Act which, either expressly or by necessary implication, could be taken to mean that the crofting landlord had any obligation to give a good title. The position was to be contrasted with the express provisions for grant of a valid and marketable title in terms of sections 64(1)(c) of the 1987 Act.

[15] Counsel referred to the third respondent’s land certificate. This, he suggested, was the beginning and end of the argument. The third respondents had limited rights. There was no basis for the proposition that they could be compelled to grant more extensive rights. Counsel stressed that the third respondents had faced real problems in relation to their own title. If these matters were relevant, they would have to be explored at proof. But he was able to say that the subjects were the rump of the old estate. There were good reasons why the third respondents had accepted the terms of the title condition in respect of the alternative route when there had been no such conditions in relation to the original route.

[16] It was pointed out that the route from the croft to the road crossed several properties in addition to Mr Doble’s. The third respondents did not have servitude rights over the whole route.

[17] He submitted that the Divisional Court had erred in proceeding on the basis that parties would be bound to agree that the tenant was to have a good title if it had been a consensual sale. On the contrary, one would not expect a seller in a consensual sale to undertake obligations he could not implement. A crofting landlord could only be obliged to do so if the Court had been given that power. A proper construction of the 1993 Act disclosed no such power.

[18] The Court’s reasoning, at paragraph [342] and following, was fallacious. The Court had said that it considered that its task was to decide what would be reasonable as terms and conditions. This simply revealed the inherent flaw in its approach. The Court was dealing with a question of competency rather than discretion. The fundamental question was whether it had the power to innovate on the title position not whether the conditions in question were reasonable.

[19] Further, the Court had erred in its construction of section 16(6) of the 1993 Act. The proper construction to be given to that subsection was that the Court was bound to give effect to title conditions. To construe the section in any other way would be a particularly oblique method of giving a Court power to disregard title conditions. The effect of any such construction would effectively be to deny the existence of the title conditions and the scheme of the Title Conditions (Scotland) Act.

[20] Counsel pointed to the Court’s expression of doubt as to the enforceability of its Order. He contended that it was of the very essence of the function of any Court, whether a Supreme Court or a statutorily created body, that its Orders be capable of enforcement. In the present case the third respondents were in an intolerable position. They could well end up in breach of the Court’s Order through no fault of their own without knowing what consequences, if any, there might be if they were unable to comply. The absence of appropriate power of enforcement was eloquent of the fact that the Court did not have power to grant that part of the Order complained of.

Submission for the applicant

[21] Mr Henderson invited the Court to approach the appeal on a broad basis. In the first place he invited us to review the grant of consent under section 5(3). He submitted that the Divisional Court had plainly assumed that the new route would be free of conditions. It was clear, he said, that the Court regarded this as something to be considered along with the other issues in the case. If the substantive decision was to be changed the consent should be reviewed.

[22] On the substantive issue, he stressed that the applicant simply wanted a right in keeping with his pertinential right as tenant. Mr Henderson accepted that the Divisional Court had over-stated what it could do. There might well be a doubt as the landlords title. But this did not matter when regard was had to the provisions of section 16(5). That provision applied to the various other provisions of the Act giving a crofter a right to buy. It was necessary to start by considering the meaning of “croft land” and the issue of access. There was clearly a pertinential right of access attached to the croft. He accepted the Divisional Court’s analysis of Macdonald v Macdonald: paragraphs [300] to [302]. The access was part of the croft. It was part of the croft land. The right of access was an interest in land. He analysed the provisions of sections 12, 13 and 15. He accepted that the Court could not order the creation of a new right but the Court could, he said, order conveyance of a right which was in existence. Where the croft landlord had title to all the land in respect of which a crofter enjoyed rights of access, the conveyance would include “access as presently enjoyed” or similar wording. Where other parties were infeft in the land they should be regarded as falling within the scope of section 16(5). Accordingly Mr Doble and Mr MacColl should be included in the Order.

[23] The Divisional Court had touched on the provisions of section 16(5) at paragraph [348]. They concluded that they could not grant an Order against Mr Doble or Mr MacColl. But they had heard no submissions on the point. He now submitted that it was clear that the expression “subjects to be conveyed” included the right of access. He contended that the Court should apply the provisions of section 16(5) in that way in the circumstances of the present case where the landlord and Mr Doble had arranged things so as to have the title burdened with extra conditions. But, he went on to accept that the Court would have to look at the scope of its power as a matter of construction and that this could not be influenced by the particular circumstances of the present case. His main point was that the Act did envisage situations where a party, other than the landlord, had an interest in the land to be conveyed.

[24] Mr Henderson suggested, in passing, that the proper course for variation of the access route would have been for Mr Doble, as burdened proprietor to have resumed the land on condition of providing an alternative route. He recognised that the right of access was not a right in the land itself but a right over land. However, he submitted that this was within the scope of the resumption provisions of the Act. He did not attempt to elaborate that proposition. It may be noted for completeness that the Court raised this issue in the decision in Marquis of Zetland v Johnson 2004 SLCR 171. We have yet to hear full submissions. The matter does not arise for decision in the present case.

[25] In relation to section 16(6) he submitted that the Divisional Court were correct in their approach. The title conditions were not in force when the tenant first attempted to buy the land. The various restrictions were capable, he said, of variation by the Lands Tribunal in terms of section 90 of the Title Conditions (Scotland) Act. There was no reason why the Land Court should not have a similar power in the context of the conditions to be attached to a tenant’s right to buy. He submitted that the fact that the conditions were created without the tenant’s consent meant that the Court was entitled, under section 16(6) to ignore such conditions but to bring in Mr Doble and Mr MacColl in virtue of section 16(5).

[26] He said that it was important to distinguish between conditions which were accepted as part of the tenancy and those imposed without consent. The Court should not make an Order inconsistent with the rights the tenant presently enjoyed. The issue then would be about what conditions were reasonably to be included to reflect the rights enjoyed as tenant.

[27] He pointed out that there was no reason why Mr Doble could not grant a right in less restricted terms than the existing registered title. That would be an implied discharge of the existing condition. He referred to the terms of section 78 of the Title Conditions (Scotland) Act, suggesting that there would have to be an express discharge of the existing condition. But he noted that the discharge of the previous right of access over the original route appeared to have been accepted by the Keeper without express discharge.

[28] Mr Henderson returned to the issue of consent under section 5 (3). Approval had been given to the agreement to change the route on the basis that access over the new route was to be on the same terms as the existing access. The decision was to be viewed as a package. The Divisional Court had had regard to the “combined” result: paragraph [354]. If parts of the decision were to be changed, the Court could, and should, now review the whole. The consent under section 5(3) should be withdrawn. What was entirely clear was that the tenant had never agreed to a changed route subject to the different conditions. The Court’s approval was given in the context of the tenant seeking title to his croft. That was an important consideration. The Court was entitled to take it into account.

[29] Mr Henderson accepted that the question of opening up the issue of consent might better have been done by an explicit cross appeal. However, he suggested that sufficient notice of the intention to re-open the issue had been given in the Answers. In any event, this argument had become more important in light of the new land certificate which he had not seen until the start of the hearing.

[30] Mr Henderson then moved on to deal with the problems created by the limitations in the land certificates. If the tenant’s rights on purchase were limited by the landlords title, the effect would not only be that access over Mr Doble’s subjects would be unacceptably restricted, but there would be no access to the main road as the landlords did not appear to have any right of access over the MacColl land.

[31] He examined the detail of the land certificates. He understood that the contention was that the landlords could only convey what was in their title. But, when the action started, the landlord’s title was unrestricted in relation to the original access route. If the Court granted unrestricted access on that line, the applicant would accept this and would make representations to the Keeper to have the land certificate changed. The Court could simply order conveyance by the third respondents to Mr Gourlay on the basis of the original rights. These rights had not been discharged in terms of section 78 of the Title Conditions (Scotland) Act. If he had a title based on the original rights of access, he could “take the matter up with the Keeper”.

[32] Mr Henderson looked at the detail of the land certificates. The new land certificate was erroneous on its face. In the burdens section, there was reference to the same deed as had been referred to in the previous certificate but the burdens purporting to be set out in that deed were different.

[33] Mr Henderson recognised that under the provisions of the 1993 Act, the Court would be entitled to impose conditions on any access route to ensure that the owner was not more burdened than he had been when the tenant was exercising rights as a crofter. However, in relation to the particular conditions in the present case, he observed that the prohibition on division of the croft was an immediate practical problem. Crofters were given an unchallenged right to acquire their house site. It would be common to acquire the house and take the title in name of a nominee, a spouse or relative, while remaining as crofter of the remaining land. This would immediately have the effect of dividing the croft and be a breach of the condition.

[34] Mr Henderson made reference to the problem of enforcement. If the order was made against Mr Doble no difficulty would arise because the principal clerk could grant title in his place. He submitted that, if not, there should be an order compelling the third respondents to grant title on the basis of their original rights. These had not been properly discharged in terms of section 78 of the Title Conditions (Scotland ) Act. If a disposition was granted in terms of such order, the applicant could found on the original grant. He would then need to take things up with the Keeper.

Submission for second respondent

[35] Mr Duncan adopted Mr Thomson’s submissions. He stressed that he had thought that the second respondent would be almost a bystander at the appeal. He had had no notice of any issue which would be likely to involve him directly. We responded by accepting that this was a valid comment. However, we intimated that we would not intend to exclude any line of argument on grounds of absence of notice. We would allow an adjournment if requested and arrange another hearing if necessary. We considered it important in the whole circumstances of this particular case to allow submissions on all the issues which were raised.

[36] Mr Duncan went on to say that he accepted the proposition that the applicant, as croft tenant, had a right of access over the varied route which was not fettered by the terms of the deed of servitude or by any other title conditions. However, he stressed that he had come to the appeal expecting the applicant to seek to uphold the Divisional Court’s decision. He was now faced with completely different issues. The applicant appeared to be seeking to go back to the right of access over the old route. However, he was not sure precisely what motion was being made. Clearly the Court had no power to change the land certificate. He noted that although Mr Henderson had complained that he had not had an earlier sight of the certificate, the deed of servitude was discussed in course of the Divisional Court process. It should have been obvious that the title sheet would have been changed. Anyone could have obtained a copy of a certificate on application. He contended that there was no authority to support the idea that the second respondent should be treated as in the position of a landlord in respect of land subject to access rights. He said that he would need further time to research the implications of section 16(5).

[37] He stressed that both the applicant and the Divisional Court made certain fundamental assumptions about the state of the titles. He referred to the assumptions made at paragraph [344]. In particular it was not right to say that the rights of access reserved by the first respondent when she sold Stalker Cottage and West Dallens were commodious enough to empower her successors to grant, as heritable rights, rights co-extensive with the pertinential rights. There had not been proper evidence about this matter. He submitted that the Court should only interfere with the parts which had been expressly appealed.

[38] He expressly confirmed his position that it was agreed that the applicant, as croft tenant, had a right of access over the varied route which was not fettered by the terms of the deed of servitude or by any other title conditions; that if the present tenant bought his croft he would lose that right and require to rely only on the heritable rights presently held by his landlord but that, if he assigned his tenancy before any purchase, his assignee as tenant would continue to have the same unfettered rights as he possessed. Mr Duncan declined to deal with the question raised by the Court as to whether, if the applicant purchased the house and then attempted to re-let the croft, the incoming tenant would have right to use the access route unfettered by any title conditions.

Response for third respondents

[39] Mr Thomson confirmed that he accepted that as croft tenant the applicant had a right of access over the varied route which was not fettered by any title conditions. It was his position that this also applied in relation to the route over the MacColl land. It was his position that if the tenant bought his croft he would lose his right and require to rely only on the heritable rights presently held by his landlord. However, if he assigned his tenancy before purchase, his assignee, as tenant, would have the same unfettered rights as he had. Mr Thomson reserved his position on the question of what would happen if the present tenant first purchased his croft and then came to re-let it. The issue did not arise in the present case.

[40] On the substantive issues, Mr Thomson pointed out that there had been no notice of the case now advanced. However, he was content to reply. He noted that, on any view, the effect of Mr Henderson’s submissions was that the present appeal should be allowed. There would require to be a remit back to the Divisional Court. There would be consequences in expenses. In effect, the case would be put back to square one. He pointed out that the access route ran over ground owned by the Scottish Ministers. He understood that the first respondent also retained an interest in part.

[41] He submitted that attempts to deal with the matter by reference to the title conditions simply made matters more confusing. As he understood it, the start point of Mr Henderson’s argument in relation to the provisions of section 16(5) was that the pertinent of access was part of the croft and accordingly to be treated as part of the subjects to be conveyed. That, he said, was a fallacy. The subjects to be conveyed should be understood as the land forming the croft. Matters such as access were properly to be seen as part of the conditions of the conveyance rather than the subjects of conveyance. The reason for the reference to “subjects to be conveyed” in section 16(5) was because the tenant was given various different rights. He was not compelled to purchase the whole croft. Accordingly it was necessary in section 16 to have a phrase which covered only the appropriate subjects.

[42] In his submission it was clear that the purpose of section 16(5) was simply to deal with the situation where the person entitled to receive the rent of the croft was not the owner. An obvious example would be where there was an interposed lease: Agnew page 89. There might be a context of split ownership. It was with that type of situation that the subsection was plainly intended to deal.

[43] Mr Henderson had argued that the right to a pertinent of access was to be treated as “part of the croft”. But Mr Thomson submitted this was only correct in the context of section 5(3). If it was correct to say that the pertinent of access was something which the tenant automatically acquired there would be no need for creation of any servitude.

[44] When pressed on the question of whether, if the right of access was to be seen as part of the land the tenant was entitled to acquire – as opposed to acquiring automatically-, there was any reason why the Act might not have intended it to be possible to make an order against a person in Mr Doble’s position, Mr Thomson pointed out that he was primarily intending to deal with the appeal in relation to the third parties. His position was that it would be improper for the landlord to be obliged to create a servitude. He repeated the contrast with the provisions of the Housing Acts. There was no proper basis for the view that the tenant was entitled to a good title under the provisions of the 1993 Act.

[45] Mr Thomson turned to address the title issues. He pointed out that the Register was now one of title. If the crofter was confident of his position he could sort out matters as owner. It would, however, be wrong for the Court to assume that the Keeper would make any change. The Court had to proceed on the basis of the existing titles. Accordingly there was a real problem in relation to attempts to force the third respondent to grant title to any more than he had. There was a similar problem in relation to Mr MacColl’s land. The third respondents had no rights in it.

[46] In relation to the attempt to undo the agreement under section 5(3) he said that it was clear that the issue of variation of the route had been treated by the Divisional Court as a discrete issue. The Court had heard a great deal of evidence and submissions on the matter quite independent of the issue of the servitude rights. To suggest that the two matters were related read too much into the Divisional Court’s comments at paragraph [354]. It was also to be noted that in their Preliminary Order the Court had made it clear that they viewed the section 5(3) agreement as a separate issue. All that was discussed was approval of the route. If that approval was removed the old route would remain burdened by the terms of the deed of servitude.

Final response for applicant

[47] Mr Henderson stressed that in terms of the initial reservation by the first respondent there was a general right of access reserved to the croft over all relevant land. The tenant had been greatly prejudiced by the change which prevented him having recourse to the existing rights.

[48] In relation to section 16(5) he submitted that it was plain that the provision contemplated a person other than the landlord. An obvious person falling within the provisions would be a person infeft in land subject to a right of access. The provisions had been amended in terms of the Abolition of the Feudal System (Scotland) Act 2003. He accepted that the change was simply one of terminology but Mr Doble clearly fell within the amended provisions. He had completed title to the land.

[49] Mr Henderson accepted that to give effect to his present contentions there would need to be some amendment of the craves. He pointed out that there would be no difficulty in relation to the railway. The access there had been constituted by longstanding adverse possession.

Final response for second respondent

[50] We concluded by asking Mr Duncan whether he would be able to deal with his response by way of written submissions or would wish us to arrange a further diet of hearing. He said, however, that, having heard all the submissions, he was prepared to adopt the reply made by Mr Thomson and to rest on that.

Discussion

[51] The issues arising in this case in relation to the right of access can conveniently be considered under four broad heads: the approach of the Divisional Court; the scope of section 16(5); the consent under section 5(3); and some miscellaneous issues including issues of title.

The approach of the Divisional Court

[52] We accept that the effect of the Order of 21 December 2007 was that the third respondents were to be compelled to acquire a title which they did not, at present, have, in order to convey it to the tenant. Mr Thomson submitted this to a powerful critique. Mr Henderson made no attempt to defend it before us. It is plain that the Court itself found this a difficult and narrow issue: paragraph [346].

[53] There was no challenge to the first finding of the Divisional Court that the applicant has, as part of his croft, a right of access over the track from the road and parties expressly accepted that the applicant, as crofting tenant, has a right of access over the route which is not fettered by the terms of the deed of servitude or other title conditions. The aim of the Divisional Court was to find a way to ensure that he received a title to a right commensurate with that right of access. It was recognised that, if the applicant merely acquired the title held by his landlords, he would become subject to the various conditions and restrictions which the landlords had accepted.

[54] In terms of section 12(2) the crofter is “entitled” to a conveyance of the site of the dwellinghouse. There may seem to be no great difficulty in accepting the view, taken by the Divisional Court, that the expression “entitled to a conveyance” implies a valid conveyance giving the tenant a good title. However, an alternative approach is that the Act simply intended to imply the words “conveyance from the landlord”. It does appear that the Act proceeded on the assumption that the landlord would be in a position to grant a good title except in special circumstances. We return to this matter when considering section 16(5). It is important to note that the crofter’s right under the Act is to apply for an Order authorising him to acquire his croft land and to apply to the Court for an Order requiring the landlord to grant a conveyance.

[55] It appears that the critical finding of the Divisional Court is that set out in paragraph [339]:

“The Act is silent as to the nature of the rights being acquired but they are, of course, rights of ownership: real rights involving a heritable proprietor’s title to the subjects being acquired. It is clearly implicit in that, that what a crofter has the right to acquire is a good title because otherwise there is no real acquisition at all. And it is implicit in that, in turn, that it is incumbent upon the landlord to do what is required to be done to provide a good title”.

[56] The commonsense of these propositions may seem clear. However, it is not accurate to say that there is “no real acquisition at all” simply because all that is acquired is all that the landlord is able to give. The tenant has the right to acquire the whole of his landlord’s interest. In relation to administration of the croft the tenant acquires the right to step into the shoes of his landlord. He is no longer bound by the relationship of landlord and tenant. It, accordingly, goes too far to say that there is no acquisition at all in such circumstances. But, we think that the great difficulty is that the conclusion that there is an obligation on the landlord to provide a good title does not address the question of his ability to do so.

[57] It does not appear to us that the Divisional Court’s further analysis of the terms of the Act took them beyond the proposition set out in that paragraph. They set out their view that the role of the Court was to resolve the sorts of things which have to be resolved as between parties: the sorts of thing which would be dealt with in missives in a consensual sale. We have no reason to doubt the soundness of that view. It led the Court to discussion of reasonable conditions. But the task of determining what might reasonably have been included in missives in a consensual sale is not the same as determining what conditions are necessary to give a buyer a good marketable title. We accept Mr Thomson’s proposition that a landlord entering missives would not be expected to agree conditions which he did not expect to be able to fulfil.

[58] It does seem clear that the Divisional Court was, at least to some extent, influenced by the circumstances of the present case and by a view that the relationship between the second and third respondents was such that Mr Doble would do what Mr and Mrs Wallace wanted. Even if that was the case, there is a distinction to be drawn between what they might have been ordered to do and what they might actually want. We, of course, cannot say what their real wishes might be but if Mr Doble was better placed than us in that respect, he would have the option of declining to make any change, even if formally requested to do so.

[59] In any event, we accept Mr Thomson’s submission that determination of the scope of the power of the Court cannot be tested against the particular circumstances of the present case. It must be assumed that there are circumstances where the landlord does not have and cannot acquire a good marketable title. We find nothing in the legislation to deal with that issue except the provisions of section 16(5) to which we return.

[60] The Court had to go on to consider the implications of section 16(6) which obliges it to “have regard” to existing title conditions. The Court accepted that it had no power to vary or discharge such conditions. We are satisfied that is correct. The Court expressed doubt as to whether the Lands Tribunal could do so and we return to that issue below. The Court then proceeded on the basis that there was a possibility of the existing conditions being varied. Because of this, they felt able to make an Order against the third respondents which assumed that the conditions in question would be changed. Properly understood, however, the possibility that they had in mind could only have been the possibility that the third respondents, as landlords, would be able to secure the agreement of the second respondents as the party in benefit. If they did not secure that agreement the conditions would remain in full force.

[61] The Divisional Court was clearly aware of the various difficulties implicit in the approach they took. They proceeded expressly on the view that the right of the crofter to acquire a good title was the answer to all the difficulties. But, of course, that right does not answer the fundamental difficulty of what is to happen if the landlord simply cannot grant a good title. It may also be observed that although the Court discussed the difficulties to third parties, namely, the second respondents, there was on their approach no difficulty to such third party. Although a third party might be persuaded to act, no third party would be obliged to do anything. Strictly, therefore, questions of reasonableness would not arise in relation to third parties.

[62] We consider that on a proper view of the scheme of the Act and the express remedies provided, there is no justification for an inference that there is an obligation on a landlord to obtain a good or a marketable title. The ultimate remedy expressly provided by the Act is that given by section 16(2). If the landlord fails to grant a conveyance, our Principal Clerk may be authorised to grant a conveyance to have effect “as if it had been executed by the landlord”. If the intention of the Act had been to ensure that the tenant acquired a valid title or a valid marketable title, the Court could have been given direct power to authorise the grant of such conveyance as was necessary to give the tenant a good and marketable title to the land tenanted by him. That contrasts with the power given by section 16(2), which is simply to stand in the shoes of the existing landlord. It cannot be imagined that it was the intention that the Principal Clerk should go out and obtain a good title on the landlord’s behalf. In short, we are satisfied that, subject to the provisions of section 16(5) the intention was simply to allow the tenant to buy out his landlord.

[63] We accept Mr Thomson’s whole submissions on this issue as broadly well founded. At the hearing Mr Henderson conceded that the Divisional Court had overstated what it could do. He did not attempt to advance any argument in support of their approach. However, for completeness, we look briefly at the written Answers submitted by him on behalf of the applicant.

[64] The Answers invited us to uphold the decision of the Divisional Court. It was submitted that, by virtue of section 1(6) of the Scottish Land Court Act, the Court had jurisdiction to order a conveyance to include servitudes and such other burdens as it considered appropriate in the exercise of its discretion under sections 13 and 15 of the 1993 Act. It is sufficient to say that we are satisfied that said section 1(6) provides no basis for the power required. Any such power would have to be found in the provisions of the 1993 Act.

[65] The answers also contended that the Court was entitled to “disregard the burdens and conditions in the Deed of Servitude” because they were inconsistent with his rights (1) as tenant, and (2) as purchaser of the croft. As discussed above, however, it does not appear that the Divisional Court did “disregard” the deed of servitude. They accepted that they had no power to do so. They simply assumed that the third respondents would be able to change the terms and conditions of that deed if they had to. Further, it is clear that there is no dispute about the rights of the tenant and it should be noted that it may simply beg the question to say that the burdens were inconsistent with his rights as purchaser. He only has such rights as are given to him by the Act. But, if the actings of the landlords in executing the deed of servitude were inconsistent with his rights under the Act, that deed might be capable of challenge as an “off-side goal”. Mr Henderson plainly recognised that any such challenge would be beyond the power of this Court and it may be that he had in mind such a challenge at a later stage if the applicant had to “take things up with the Keeper”. In any event, he did not comment on this suggestion.

[66] We are satisfied that the obligation to “have regard” to any existing title conditions obliged the Court to take account of such conditions as valid and enforceable. We recognise that, absent this provision, the Court would nevertheless be bound to give effect to exisiting title conditions. It is, therefore, tempting to look for some other meaning for the expression “have regard”. But, we are not persuaded that the provision was intended to give a power to the opposite effect: that is, to read it as if “have regard” meant “may disregard”.

[67] The overall view we reach is consistent with the view reached by the Court when considering a somewhat similar issue in Scottish Ministers v Pairc Trust Ltd and Others. The context was the right given by the Land Reform (Scotland) Act 2003 to a crofting community to effect a compulsory purchase of the estate landlord’s interest.

[68] The Court had to consider whether the intention was to allow the community to acquire an unrestricted title or simply to acquire the landlords interest burdened as it was by an interposed lease. The Court concluded that the latter was the case. Attention was drawn to the absence of any provisions dealing with the difficult issues which would arise if the intention had been to supersede all rights restricting or qualifying the actual proprietor’s right: paragraph [109].

[69] The present context is quite different. The interests of an individual in his or her croft are not the same as the interests of a community in running a crofting estate and the policy considerations underlying the 1976 Act were related to the individual rights rather than community rights. But in both contexts the absence is relevant of any provisions equivalent to those of the Housing Acts and any provisions equivalent to those of compulsory purchase legislation designed to give the acquiring party a valid title. In both cases the scheme of the Act is to allow the acquiring party, crofter or crofting community, to take over the landlord’s interests.

[70] The Divisional Court expressly disavowed any thought of obtaining guidance from the Housing (Scotland) Act or from authorities cited in relation to it: paragraph [335]. In doing so, we think they may not have given sufficient weight to the contrast. It is unnecessary for us to comment further but it may be worth making the point that the jurisdiction given to the Lands Tribunal as part of the machinery for implementation of a tenant’s right to buy is given at the stage of missives. Landlords can be compelled by the statutory procedures to enter missives. If they are unable to implement the missives, the tenant will have the usual remedies for breach of missives but, even under that legislation, will not necessarily obtain a good marketable title to the subjects. The remedy will often be no more than a claim for damages. But that will be a useful remedy. We find no equivalent in the crofting context.

Approach to section 16(5)

[71] The applicants written Answers to the Grounds of Appeal did not advance any explicit argument based on section 16(5). We decided that the issue should be explored but it is right to say that the matter did cause some concern. There was, as noted below, a similar concern in relation to the argument relating to consent of the Court under section 5(3). Although the Land Court has always tried to discourage the taking of technical “pleading” points, the need for fair notice is based on the practical requirements of litigation. There may well be issues which are of obvious relevance although not explicitly referred to in pleadings or otherwise. Parties preparing for an appeal can be expected to have approached matters in the round and it is not always easy to say when a particular point is to be regarded as novel. But, if an opponent has not had a proper opportunity to prepare to deal with a relevant issue the Court will usually require either to adjourn the hearing or refuse to allow argument on that point to be advanced. However, the issue raised in the present case was one of considerable importance not limited to the interests of the present parties. There was at least suggestion of actings in bad faith. We were anxious to hear all relevant arguments. We made it clear to the respondents that we would be prepared to consider holding an adjourned hearing or giving them a chance to lodge written submissions, if necessary, to ensure that they had a full opportunity to consider the points. Fortunately, Mr Thomson expressed himself as willing to deal with matters at the hearing. After time for reflection, Mr Duncan advised us that he did not seek further time. Accordingly, we are able to deal with both these issues in light of the submissions before us.

[72] Mr Henderson submitted that the Court had power under section 16(5) to make an Order direct against the second and fourth respondents compelling them to grant the necessary right of access. He stressed that this proposition had not been advanced before the Divisional Court. Their comments on section 16(5) were, accordingly, unnecessary and made without hearing any submission. The comment that nothing in the 1993 Act empowered the Court to make Orders against third parties who are owners of land over which rights relating to the croft are claimed seems inconsistent with the provisions of section 16(5). These provisions do allow Orders to be made against persons who are owners of land but not landlords. Of course, the Court would not make an order against a “third party” in the sense of a person who had not been called as a potential party to the action. But the Act does envisage a remedy against a person who is not in the relationship of landlord with the crofting tenant. There is an obvious restriction in the scope of such “third parties” in that they are limited to proprietors of land in which rights relating to the croft are claimed. There is no other explicit limitation.

[73] Before considering the provisions of section 16(5)itself, it is necessary to have regard to their context. This has been covered to some extent by our earlier discussion of the decision of the approach taken by the Divisional Court but for present purposes it is convenient to start by considering the extent of the crofter’s interest in his land. It is clear that he has rights over the physical croft subjects as tenant. He also has various rights which go with these subjects. Access is probably the most common example. He may also have wayleaves for services and drainage. A crofter may also have a share or shares in a common grazing. The latter may be held as tenant of the croft or in a personal or different capacity. For present purposes, it is sufficient to note that such shares are expressly excluded from the scope of the right to buy provisions by section 12(3)(b) and they need no further comment.

[74] Section 12, as we have seen, provides for the acquisition by the crofter of the croft land tenanted by him. Croft land is defined as including “any land being part of a croft”. Unless a contrary intention can be said to be apparent in any of the relevant provisions, that “land” will include “buildings and other structures, land covered with water and any estate, interest, easement, servitude or right in or over land”: section 1 of the Interpretation Act 1978. It was not suggested that any contrary intention did appear. The definition in the 1993 Act is an “including type”. This tends against any suggestion of a special limited use of the word “land”.

[75] It is not disputed that in the present case the crofter has a right as tenant to free access over the track. We are satisfied that the right given by section 12(1) was a right to acquire his whole land including the right of access to it. That is an important starting point. Other provisions of the Act must be read in that context.

[76] The Act draws a distinction between the site of the dwellinghouse and the “croft land” but there is nothing in the provisions relating to the latter which suggest any intention to limit the general meaning of “land”. The express exclusions have no direct relevance in the present case.

[77] Section 13(1) empowers the Court to authorise the crofter to acquire “such croft land as may be specified”. It may be that this provision was intended to cover a crofter’s right to seek to buy only part of his land. In any event the Court clearly has discretion to allow acquisition of only part and that power would allow it to give effect to the landlord’s right under subsection (2) to oppose the acquisition by limiting the land to be acquired. For present purposes, it is sufficient to observe that the Act contemplates purchase of part. Any Order will, accordingly, require to specify the subjects to be conveyed.

[78] The Court is given power to specify such terms and conditions “as failing agreement with the landlord” may be specified: section 13(1)(a). We are satisfied that the statute envisages terms and conditions to be specified by the Court in lieu of agreement in missives. This re-enforces the view that the scheme of the Act is to allow the tenant to acquire his landlord’s title rather than to acquire some additional right. Having authorised acquisition, the effective Order which the Court is to pronounce in terms of section 13(1) is to be one which requires the landlord to convey the land.

[79] Section 14 of the Act deals with the consideration payable in respect of acquisition of croft land and we heard no submissions analysing its terms. We note, in passing, that it defines the consideration in terms of the “crofting value” and that, in turn, is based on current rent. Rent fixed by the Court assuming the unrestricted access enjoyed at present would be expected to be higher than the rent appropriate if access to the croft was restricted by a requirement to negotiate a series of locked gates or burdened by specially onerous maintenance obligations.

[80] Section 15 deals with acquisition of a house site. We think that, for present purposes, these provisions are essentially to the same effect as those relating to croft land: subsection (1). The main differences between sale of a house site and of croft land relate to the consideration payable and absence of any right in the landlord to object in the former case.

[81] Section 16 deals with the conveyancing process. Subsection (1) gives power to a person who is landlord to grant a valid conveyance even if under some person disability due, broadly, to personal status or mental incapacity. Nothing turns on this provision. It can be seen as essential to the proper working of subsection (2) where the Land Court is given power to authorise execution of the necessary conveyance to give effect to its Order. But, in any event, subsection (2) does provide the effective enforcement provision in relation to the rights given by sections 12 to 15. If the landlord will not or cannot do what he has been ordered to do, the Principal Clerk can be authorised to do it on his behalf. Subsection (3) regulates payment in that situation. Subsection (4) emphasises the underlying scheme. The parties are free to make their own arrangements notwithstanding any formal Order by the Court.

[82] Section 16(5) provides:

“Where a person other than the landlord has a completed title to the subjects to be conveyed, the second references in sections 12(2) and 13(1) of this Act and the reference in the said section 15(1) and in the foregoing provisions of this section to the landlord shall be construed as references to the landlord and such other person for their respective rights”.

[83] Although nothing turns on the terms of the change, it may be noted that prior to amendment by the Abolition of the Feudal System (Scotland) Act, the reference in the first line was to persons other than the landlord being “infeft.”

[84] We are satisfied that the subjects to be conveyed include the croft itself and the heritable rights attaching to it. The nature of access as a pertinent of a croft is discussed by the Divisional Court at paragraphs [300] to [302]. We need not repeat that material. We accept Mr Thomson’s contention that section 16(5) should not be read as if the statutory definition of land was part of that section itself. But, to find out what is to be conveyed, we need to know what the crofter is entitled to have included in the conveyance. The crofter has been given a right to acquire the interests in land held by him as tenant. Accordingly, the subjects to be conveyed can properly be seen to include the tenant’s unrestricted right of access. In a straightforward case where the owner of the croft had acquired, or retained, full rights of access commensurate with those of his tenant, we think it clear that the rights to be conveyed would include the access. Such rights would fall to be included as part of the dispositive clause of a traditional conveyance. We see no reason why such rights should not have been intended to be included in the expression “land”. They are to be acquired as heritable rights. The statutory definition of “land” merely clarifies the matter.

[85] In the present case the landlord of the croft is unable to convey a right to use the access route commensurate with the rights of the tenant because the landlord no longer has the title to such right. When the matter is analysed in terms of the practical nature of the rights involved, the language of section 16(5) appears to cover the situation without difficulty. The crofter has, at present, a right to use the track which is part of Mr Doble’s land. The statute provides for him to acquire that right as owner. Mr Doble has title to that land. In terms of section 16(5), sections 12(2), 13(1) 15(2) and 16(2) are to be read as if they allowed us to require Mr Doble to convey appropriate rights.

[86] We think that any difficulty arises, not from the terms of section 16(5) but from the provisions of the other sections to which it refers. The power to require a person other than the landlord to convey the land is given “failing agreement with the landlord”. That might be said to suggest that the legislature had in mind only rights which the landlord could have agreed to convey. However, as the provisions of section 16(5) are directed at a situation where, on the face of it, the landlord cannot grant a title, we see no reason to read the whole provisions as restricted to a situation where the landlord might be able to obtain power to grant such a title. No such argument was presented to us.

[87] A related argument might be that the rights in question should be regarded as defined by their labels. A right of access is a right to use land for a particular purpose. It would not be a normal use of language, and, indeed, would be unsound in theory to talk of Mr Doble having a right of access over his own land. If the right which the tenant holds as a pertinent of his croft is to be viewed for all purposes as equivalent to a servitude, a distinct heritable right held by a benefited proprietor over the lands of another, it is clear that the title to that right is not held by Mr Doble.

[88] However, the applicant’s right to use the land is not held by him as a servitude. It is a right to use the land for the purposes of obtaining access to his croft which he holds as tenant protected by the crofting legislation. That right can be converted into a right as owner by a conveyance of some sort from the owner of the land. We see no reason to construe the legislation narrowly to avoid that result.

[89] Mr Doble is able to grant a valid conveyance which would give effect to the crofter’s rights. He is successor in title to the original croft landlord. He acquired the land subject to the burden of the crofter’s rights as tenant. He suffers no prejudice in being obliged to convey a right of access to the crofter. He is not entitled to a share of rent for the access as matters stand. His position in relation to practical matters of control of the use of the track is protected by the power of the Court to impose appropriate terms and conditions.

[90] It is clear that, in enacting section 16(5) the legislature had in mind situations where the party entitled to rent from the croft would not be the party able to give a good title to the land which the crofter had been given a right to acquire. We are satisfied that the provision can properly be construed in a way which gives effect to that right. We accept that the legislature may not have had the present situation in mind. The primary purpose may well have been to deal with situations where a new owner had not had time to acquire a recorded or registered title, or where, because of some dealing with the title to the landlord’s estate, there was a separation between the person entitled to the rent and the person with title to the relevant subjects. It might have been thought wide enough to cover any difficulties arising from the concept of apportionment where the Act leaves much to inference. But, as we see it, the real question is whether Parliament intended the application of section 16(5) to be restricted to the more obvious situations. We are satisfied that the construction discussed above goes no further than is necessary to give effect to the dominant purpose of this part of the Act: namely, to empower the crofter to acquire as owner the rights to which he is entitled as tenant. We have not heard any reason why a restriction should be inferred preventing it from having that effect.

Approach to section 5(3)

[91] We have commented above on the lack of fair notice of the lines of argument advanced by Mr Henderson. He suggested that some indication of the intention to re-open the question of consent might be found at pages 6 and 7 of the Answers. It is sufficient to say that we do not accept that anything in the Answers gives notice of the point. However, in view of the helpful approach of the respondents, discussed above, we are able to consider this issue on its merits.

[92] In the Court below, much time was devoted to the question of whether the crofter could be taken to have agreed to the change of route. However, there was no challenge before us to the conclusion that agreement had been reached, expressly or by implication, by about May 2003: paragraph [289]. There was also a question as to whether or not the subject matter of the agreement – the change of an access route – was such as to bring the matter within the scope of section 5(3). The circumstances were, of course, somewhat out of the ordinary in that the agreement with which the Court was primarily concerned was not an agreement between the crofter and landlord. However, the scope of the provision is not restricted to such agreements. In any event, the landlord was also a party and we do not doubt the conclusion the Divisional Court reached on that point. We heard no challenge to the Court’s decision on that matter: paragraph [305].

[93] We are satisfied that in the exercise of its discretion the Court must look not only at the nature of the agreement as it appears to affect the crofter immediately concerned, but is entitled to have regard to wider aspects. The Divisional Court recognised that it was as a permanent variation of the access route that it required to approve the arrangement. The Court is given an apparently unfettered discretion and we did not hear submissions as to any necessary limits on that discretion.

[94] We note the Divisional Court’s expressed concern - at paragraph [296] - that the amended provisions of the Act might appear to assume that the “contract or agreement” referred to in subsection (3) was intended to be limited to an agreement in writing. However, there was no such restriction in the original provisions and we are satisfied that it cannot have been the intention of Parliament to bring about such a change by inference. The power of the Court to consent to informal agreements is important in the context of crofting where the statutory context may make application of the wider concepts of acquiescence or personal bar more difficult to apply. Where the circumstances are such as to lead to the conclusion that an agreement, express or implied, has been reached, the Court can exercise its discretion under section 5(3). Particular circumstances such as the nature of the agreement, whether it was in writing, and whether, and to what extent it has been acted upon, might have to be taken into account as part of the exercise of discretion.

[95] We see no difficulty in complying with the new provisions of subsection (4) which require intimation of “a copy of the contract or agreement”. Where satisfied that an agreement had been reached, though not in written form, the Order of the Court can set out the terms of the agreement which has been found to be established and a copy of that Order can be intimated to the Commission. It will simply be necessary to ensure that, in cases covered by the amended provisions, our Orders take a suitable form.

[96] We take this opportunity to repeat an observation we have made before and that is to caution against reliance on dicta which might tend to suggest that the Court would not approve any agreement which contained terms inconsistent with the provisions of the Act. This will always be a matter of circumstances but, as the statutory power is to consent to provisions in an agreement which deprive the crofter of a right he would otherwise have under the Act, it is clear that a result inconsistent with the Act is not only within the scope of the section but is the express aim of the statutory provision.

[97] It is clear from the terms of the preliminary Note of 12 September 2007 that the Court took the view that the issue of approval of the change of route was one separate from the issue of the right to buy. Nothing in the Order of 21 December indicates a different approach. We do not accept Mr Henderson’s contention that the Divisional Court treated the question of consent under section 5(3) as being part of the “whole package” of rights under discussion. The reference in paragraph [354] to “the combined result” was a reference to the outcome. It was not part of the Court’s decision-making process

[98] We think that the approach taken was one which was within the scope of a proper exercise of their discretion under section 5(3) and we have found no justification for interfering with it. The Court was satisfied that the crofter had agreed to the change. It was a reasonable change. Parties had acted in reliance on it. To have refused consent would have given the crofter a right to insist on removal of the building works constructed on the original route and to resume his use of the old track. It would not, of itself, have enabled him to acquire an unrestricted right of access from his landlords. We recognise that it would have given the applicant a practical bargaining counter. We accept that the Court could properly have had regard to the implications of the agreement on any consequential rights including the tenant’s rights to purchase, but we are not persuaded that it was a factor requiring dominant weight. Where a crofter has entered an agreement which is fair and reasonable in itself and has been acted upon, it will not usually be appropriate to refuse it consent simply because it has adverse implications for the crofter’s right to buy.

[99] It may be added, however, that we have no doubt that implicit in the consent was the understanding that the new route provided an effective access for the tenant. This assumed the tenant had established a right, as tenant, to use the “loop” over Mr MacColl’s land. Had this been in any real doubt, we would have thought it appropriate to reconsider the whole matter.

Miscellaneous

[100] Both Mr Thomson and Mr Henderson took time to go through the various titles in some detail. It is, however, sufficient for us to say that we accept Mr Thomson’s submission that our decision must be based on acceptance of the position set out in the current land certificates. Mr Henderson’s position was less clear. Although the problem does not arise in light of our acceptance of his submissions in relation to section 16(5), he appeared to have in mind, in relation to the alternative argument, a situation where, if we simply pronounced an Order favourable to the applicant and granting unrestricted access “as presently enjoyed by the tenant”, he would be able to “sort things out” with the Keeper. We did not see a need to enquire into what steps he expected to have to take to achieve that end.

[101] The circumstances of the present case are unusual. In a straightforward case, if a landlord with an established unrestricted right of access, attempted to thwart the tenant’s right to acquire his land by acceptance of restriction on that right, such attempt might well be open to challenge under what has come to be known as the “off-side goals” rule exemplified in Rodger (Builders) Ltd v Fawdry and most recently discussed in Gibson v Royal Bank. But, it would not be open to this Court to deal with any such challenge and we are satisfied that we could not pronounce an Order assuming that any such approach would be successful. We must take the heritable titles as they stand.

[102] We also heard discussion of the possibility of having the conditions of access varied by application to the Lands Tribunal in terms of section 90 of the Title Conditions (Scotland) Act. The Tribunal is given wide powers to change “title conditions” as defined in section 122. It is plain that, for the most part, the title conditions which fall within the scope of the Act are conditions burdening the land in respect of which they apply. However, head (c) of the definition covers “an affirmative obligation imposed, in a servitude, on the person who is in right of the servitude”. We note that, although the term “affirmative burden” is defined by section 2(2)(a), the Act is silent as to the meaning of an affirmative obligation. But, an affirmative burden is defined in terms of “an obligation to do something (including an obligation to defray or contribute towards, some cost”, and it is clear that head (c) is intended to relate to positive obligations to act rather than refrain from acting.

[103] Head (c) would, accordingly, cover an obligation to contribute to maintenance of an access route. If the share imposed under the terms of a servitude was too great, the Tribunal could adjust it. In the present case, the conditions complained of related to maintenance, sub-division of the croft and the possibility of locked gates. It is doubtful whether the restriction against sub-division of the croft could properly be treated as an affirmative obligation and it does seem clear that the right of the burdened proprietor to lock the gates could not be so regarded.

[104] In short, the doubt expressed by the Divisional Court as to the possibility of the restrictions being varied by the Lands Tribunal appears to us to be well founded.

Further procedure

[105] Although we are satisfied that we should pronounce an Order in terms of section 16(5) it is clear that any such Order will have to be subject to terms and conditions: section 13(1)(a) and section 15(1). 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. For example, it might well impose an explicit condition as to maintenance. There might be circumstances where conditions were required limiting the extent of use; for example, limiting it to agricultural use and to the domestic needs of a limited number of dwellinghouses. On the other hand, the present use would also cover the rights of the crofter to use his croft for ancillary purposes and the nature of appropriate conditions may vary with circumstances. It may be hard to imagine circumstances where the Court would impose a condition allowing for locked gates but it would be wrong to rule that out in advance.

[106] As noted, we have proceeded on the view that a suitable right of access exists over the MacColl land and that the tenant will be able to acquire adequate rights in relation to that land without formal procedure. Further consideration will have to be given both to section 5(3) and in relation to the extent of any order under section 16(5) if this view proves ill-founded. However, the history of the case suggests that the dispute relates to the land at West Dallens. It seems unlikely that suitable conditions will be a matter of agreement and to minimise further delay we have appointed a hearing. However, it will be necessary for the parties to set out their proposals for conditions and we have appointed the respondents to lodge suitable minutes. We shall consider whether there is any need for formal response at that stage. The applicant will need to state his attitude to any proposals and may wish to suggest different conditions. However, the issues will be obvious enough. We would not expect the hearing to be delayed by a need for elaborate pleading. Our intention is that the hearing will be limited to evidence and submissions bearing on the appropriate conditions, if any, to be imposed in relation to the conveyance of a suitable servitude right by Mr Doble in respect of the land to which he has completed title at West Dallens and Mr and Mrs Wallace in respect of the land to be retained by them.

[107] Mr Henderson indicated that he would seek to amend his craves in light of our decision. Further issues may arise if he seeks leave to do so. We have allowed six weeks for the respondents’ minutes. We would expect any steps by the applicant to be taken within three weeks and we would then be prepared to consider any submissions as to procedure.

For the applicant: Ferguson MacSween & Stewart, Solicitors, Portree

For the second respondent: Thomas Duncan, Solicitor, Linlithgow

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