THE COURT

(Lord McGhie, Mr A Macdonald)

NEVIS ESTATES LTD AND OTHERS v CAMERON

(Application RN SLC 142/99 – Order of 1 February 2011)

CROFT – RESUMPTION – REASONABLE PURPOSE – PROTECTION OF ANCIENT WOODLAND – BALANCING FACTORS – ADVERSE IMPACT ON CROFT – LOSS OF VALUABLE SHELTER – USE AS SMALLHOLDING – COMPETENCY OF RESUMPTION FOR AGRICULTURAL USE – PRESUMPTION AGAINST RESUMPTION FOR AGRICULTURAL USE – QUESTIONS OF PRIORITY OF RESUMPTION OVER RIGHT TO BUY – MULTIPLE LANDLORDS – LIFTING THE VEIL OF CORPORATE IDENTITY – CROFTERS (SCOTLAND) ACT 1993 sec 20

The case involved a great deal of detail which need not be summarised. One aspect related to circumstances in which the Court had to balance the landlord’s purpose to resume a valued woodland valley with a view to its long term protection in the public interest against the adverse impact this would have on the carrying capacity of the croft. Another part related to the landlords’ proposals to resume an area for use as a small holding with particular emphasis on vegetable growing. The aim was to provide employment and encourage tourism but the land was of value to the croft.

HELD (1) that balancing all relevant considerations the landlords had established that resumption of the woodland was a reasonable purpose in the public interest; (2) that although it could not be said that an application for authority to resume for agricultural use was necessarily incompetent, the tract of authority showed that it would only be granted in particularly compelling circumstances and the Court was not satisfied, on the evidence, that a reasonable purpose had been established in this case when balanced against the value of the land to the croft.

CROFT – ACQUISITION OF CROFT LAND BY CROFTER – SOUND ESTATE MANAGEMENT – RELATED APPLICATION BY LANDLORD FOR RESUMPTION – RELEVANCE OF RESUMPTION TO ESTATE MANAGEMENT - QUESTIONS OF PRIORITY OF RESUMPTION OVER RIGHT TO BUY – MULTIPLE LANDLORDS – LIFTING THE VEIL OF CORPORATE IDENTITY - CROFTERS (SCOTLAND) ACT 1993 SEC 13

CAMERON v NEVIS ESTATES LTD AND OTHERS

(Application RN SLC 131/01 – Order of 1 February 2011)

Following proposals for regeneration of woodland, the landlords applied to resume a portion of the croft together with the solum of a track and the foundations of a pier or jetty. The crofter then made a formal application to acquire the croft land. This was opposed. At the hearing it became clear that the objection was limited to the areas which the landlord was seeking to resume and that the crofter did not oppose resumption of the solum of track and jetty area. The crofter contended that the proposed purposes for resumption had been so changed by the time of the hearing that the application to purchase should have priority.

HELD that the landlords proposals for resumption could properly be seen as an aspect of sound estate management within the meaning of sec 13(2); that having regard only to proposals in relation to the woodland which were reasonably to be seen as within the scope of the original purpose, the landlords had established a reasonable purpose for resumption which would have priority over the application to purchase; (3) it was unnecessary to decide that any rigorous principle of priority of application existed, it being observed that an application for resumption might involve questions of public interest which merited priority over a right to buy but if the Court had been looking at the landlords’ revised plans as the basis of the reasonable purpose, this would, if anything, have strengthened the landlords’ case.

Applications SLC 142/99 and 131/01 were heard together. The note appended to the Court’s order in SLC 142/99 is as follows:

[1] There are four applications before the Court relating to the subjects at 1 and 2 Tarbet, Loch Morar. However, for the reasons set out in the Note of 17 May 2010 in this application, it was decided that the substantive issues could best be resolved by hearing a full proof in applications SLC-142-09 and SLC-131-01. For the purposes of these applications we can refer to Mr Cameron as “the crofter” and treat the subjects as a croft although other applications challenge aspects of this status. The position of the landlords is more complicated. Four different bodies have been involved as landlords. Although it is convenient, for much of the Note, to refer simply to “the landlords”, the four bodies are distinct. Where a specific landlord is being referred to it should be clear from the context which is involved.

[2] Application SLC-142-99 is an application by the landlords for resumption of parts of the croft under the provisions of section 20 of the Crofters (Scotland) Act 1993. Having regard to the possible public perception of this case as being a fight over Mr Cameron’s rights, it may be worth stressing that in a resumption application, there is no real dispute about rights. A landlord seeking to resume part of a croft accepts that the crofter has full rights as tenant. But, Parliament has given landlords a right to ask the Court to allow them to take back part of any croft if the Court is satisfied that the landlords have a reasonable purpose. To put it shortly, a resumption case is an exercise of the Court’s judgement in weighing up balancing factors rather than a dispute over rights. It is for the Court to weigh up any conflicting interests having regard to the good of the croft, the estate, the public interest and the interests of the local crofting community. While it is impossible not to have some sympathy for the feelings and desires of Mr Cameron, we cannot determine matters on the basis of sympathy and, in any event, it must be noted that the good of “the croft” is not necessarily the same as the interests of the present crofter.

[3] The other application, SLC-131-01 is an application by Mr Cameron to buy his whole croft land. Parliament has given crofters a right to buy out their landlords interest in their croft. That right is subject to a landlords’ right to refuse if the landlord can establish any of the statutory grounds for refusal. In the present case, the landlords rely on one of these grounds: that if the crofter was allowed to buy all the croft this would be substantially detrimental to the interests of sound management of the estate of a landlord: see sec 13(2)(b) of the 1993 Act.

[4] There is an obvious conflict between the right of a landlord to apply for authority to resume part of the croft and the right of a crofter to buy that croft. We have concluded that the landlord’s proposals for the preservation and regeneration of the woodland at Glac Falaichte are of sufficient public benefit to outweigh the adverse impact on the croft. We note that the crofter has a statutory right to compensation for such adverse impact. We have not been persuaded that the landlords’ other purposes or proposals justify resumption in the circumstances of this case.

The hearing

[5] We agreed to hear evidence at Fort William because of Mr Cameron’s age, 87, and the difficulties it was said he would have faced in attending court in Edinburgh. We sat at Fort William from 18 to 22 October 2010. We also heard evidence in Edinburgh on 2 and 5 November. We heard submissions at Edinburgh on 15 and 17 November. Mr Lewis Kermack, Solicitor, appeared on behalf of the crofter. Sir Crispin Agnew, QC, appeared for the landlords. We then carried out a site inspection on 19 November 2010.

Statutory material

Crofters Holdings (Scotland) Act 1886
Crofters (Scotland) Act 1993
Crofting Reform (Scotland) Act 2007
Allotments (Scotland) Act 1892
Allotments (Scotland) Act 1922
Allotments (Scotland) Act 1950

Unless otherwise specified, references to “the Act” or to individual sections are to the 1993 Act as amended by the 2007 Act.

Authorities

Barvas Estate Ltd v Crofters in South Bragar Common Grazings 1983 SLCR 47
Board of Agriculture for Scotland v Maclean 1929 SLCR 71
Bowman v Guthrie 1997 SLCR 40
Bowman v Guthrie 1998 SLT (Land Ct.) 2
Cameron v Corpach Common Grazers 1984 SLT (Land Ct.) 41
Cartwright v Post Office [1969] 2 QB 62
Clegg v MacPherson 1963 SLCR App 108
Corbett v MacLeod 1990 SLCR 25
Countess of Sutherland v Shareholders in Doll Common Grazings 1970 SLCR 85
Crerar v Murray & Others 2004 SLCR 140
Crichton Stuart v Ogilvie 1914 SC 888
Davie v Trustees of Countess of Sutherland’s No 3 Settlement 2005 SLCR 137
Dumughn v Crofters of Morefield Common Grazings 2005 SLCR 168
Dunbar’s Trustees v Crofters of Winless Common Grazing 1994 SLCR 89
Dunbeath Estate Ltd v Henderson 1989 SLT (Land Ct.) 99
Dunbeath Estate Ltd v Gunn 1988 SLCR 52
Dunbeath Estate Ltd v Gunn 1988 SLCR 136
Ferguson v Crofters Commission 1999 SLCR 77
Fountain Forestry Limited v Ross and Others 1985 SLCR 115
Fountain International Ltd v MacDonald 1991 SLCR 84
Geddes v Martin 1987 SLCR 104
Gilmour v Master of Lovat 1979 SLT (Land Ct.) 2
Grimersta Estate Ltd v MacLeod 1972 SLCR App 129
Guthrie v Byrne and Others 1970 SLCR 68
Hitchcock Reps v Crofters in South Harris General Common Pasture 1974 SLCR 67
Jones v Lanarkshire Health Board 1991 SC 285
Lewis Island Crofters Ltd v Mackay 1940 SLCR 69
Lamont v Kennedy unreported SLC/160/09
Libberton Proprietors Ltd v Mackay 1973 SLT (Land Ct.) 13
Lochiel Estates v Campbell 1968 SLT (Land Ct.) 2
MacAskill v Basil Baird & Sons Ltd 1987 SLT (Land Ct.) 34
McCallum v Duke of Hamilton’s Trustees 1924 SLCR
MacColl v Crofters Commission 1985 SLCR 142
Macdonald v Barker 1970 SLT (Land Ct.) 2
MacDonald v Johansen unreported SLC/102/01
Mackay’s Trustees v Colthart 1959 SLCR 43
Mackay v Barr 1981 SLCR App 76
Mackay v Crofters Commission 1997 SLT (Land Ct.) 4
Malcolm v M’Dougall 1916 SC 283
Middletweed Ltd v Murray 1989 SLT 11
Murray’s Trustees v Ross 1964 SLT (Land Ct.) 9
National Trust for Scotland v Macmillan and Others
North Berwick Trust v James B Miller & Co 2009 SLT 402
Page v Greene 1993 SLCR 94
Palmer v Crofters Commission 2006 SLCR 1
Pigott v Robson 1958 SLT 49
Portman Trustees v Macrae 1971 SLT (Land Ct.) 6
Scobie v Crofters of Morefield, Rhue and Ardmair 2001 SLCR 100
Seafield’s Trustees v M’Currach 1914 SC 174
Secretary of State for Scotland v Sutherland 1984 SLCR 53
Secretary of State for Scotland v Shareholders of Lealt & Culnacnock Common Grazings
1982 SLT (Land Ct.) 20
Secretary of State for Scotland v Stewart 1972 SLCR App 93
Shaw v Cummings 1987 SLCR 157
Shieldaig Farm (Gareloch) Ltd v MacRae 1995 SLT (Land Ct.) 47
Smoor v Macpherson 1981 SLT (Land Ct.) 25
Stevens v Sedgeman [1951] 2 KB 434
Stornoway Trustees v Shareholders in Portnaguran Etc Common Grazings 1939 SLCR 32
Stornoway Trustees v McLean 1940 SLCR 67
Stornoway Trustees v Shareholders in Stornoway General Common 1939 SLCR 39
Sutherland v MacKenzie 1999 SLT (Land Ct.) 2
Tabor v McMaster 1962 SLCR
Thrumster Estate Ltd v Miller & Others 2006 SLCR (Vol 2) 35
Turner v Wilson 1954 SC 296
Walker v MacEwan 1946 SLCR 14
Watson v Maclennan 1972 SLT (Land Ct.) 2
Waugh v Thrumster Estate Ltd 2006 SLCR 53
Waugh v Thrumster Estate Ltd 2003 SLCR 100
Wotherspoon v Crofters Commission 2008 SLCR 286

Textbooks Etc

Stair Encylopaedia Vol 13
The Farm Management Handbook 2008/09 29th Edition
The Farm Management Handbook 2009/10 30th Edition

The Proposed Purposes

[6] The initial application SLC-142-99 was lodged on 14 October 1999. It was at the instance of Nevis Estates who then owned the whole croft. It was amended on 11 August 2001 to exclude a number of small areas of woodland and an area to the northwest of Glen Tarbet. More extensive amendment was allowed on 17 May 2010 to reflect the changes in the landlords and to allow them to add material expanding the description of the purposes of the resumption. We shall discuss the amendments in more detail below and also describe in more detail the different parcels of land to be resumed. However, although the landlords stressed their primary position that the application should be viewed as a whole, it can be seen to have four potentially distinct elements; three relating to distinct parcels of land and the fourth relating to a distinct purpose. It is convenient to give labels to these elements at this stage.

[7] The three elements which can be described by reference to parcels of land are: (1) the solum of the pier and track; (2) the smallholding; and (3) the woodland at Glac Falaichte; The purposes involved in relation to these elements can be described, respectively, as development of improved transport; development of a new resource for tourists with related benefit for employment; and preservation and regeneration of woodland. The fourth element which can conveniently be labelled “the bunkhouse proposal” relates to the building of tourist accommodation and a related cottage within the woodland at Glac Falaichte.

General approach

Factual matters

[8] The evidence led covered a wide range of matters of potential relevance to the issues before us and these were scrutinised in careful detail on behalf of the crofter. We are satisfied that all reasonable bases for challenge of the landlord’s proposals were thoroughly explored. Although we must inevitably exercise our judgment on a broad basis, we have been able to take into consideration the wide range matters raised before us. We shall attempt to deal with the main issues of fact upon which our decision is based and, where appropriate, we make reference to the evidence bearing on these issues. We do not attempt to summarise all the evidence given by witnesses or established by the documentary productions. Most of the witnesses spoke to reports or precognitions lodged in process and, for present purposes, we simply give an indication of the broad scope of the evidence given by each.

Witnesses led for the crofter

[9] Anthony Stuart Kirkham, 53, is Head of the Arboretum and Horticultural Service and Head of Horticulture and Public Education Department at Kew Gardens. He holds a wide range of diplomas and certificates and is a member of various prestigious Societies. He has vast experience in relation to trees all over the world. He had visited the woodland at Glac Falaichte. He described it and gave his views as to its long term care.

[10] Euan MacMillan, 41, Lurg Farm, Fintry, had formerly worked with his father on a large holding at Arisaig which was similar in some respects to the subjects. They ran some 50 hill cows and 1000 Blackface ewes over 10,000 acres. He is now a very successful Blackface farmer near Stirling and has wide experience of such sheep. He gave evidence of his views on the management of the subjects and the probable impact on the croft of loss of the resumption land.

[11] Richard Twining Sidgwick, 66, FRICS retired, has had long experience of the management of West Highland estates, including experience of agriculture, the management of native and commercial woodlands and administration of crofts. He had been a member of various bodies connected with land management in the Highlands. He had inspected the croft with Mr Cameron and other members of his family on 3 September 2010. He gave evidence covering details of the croft and its operations. He spoke to the shelter provided by Glac Falaichte and gave his view of the impact on the croft of loss of the resumption area.

[12] Mr Donald Cameron, 87, the present crofter, spoke to his family’s long connection with the croft, his own use of it and his view of the impact of loss of the proposed resumption area. He had spent his working life working with cattle and sheep, mainly sheep. He had been tenant since 1982. But he had also been employed as a shepherd by Lochiel Estate and then by Mr Cameron of Glen Nevis.

Witnesses led for the landlords

[13] Andrew T M Aitchison, 38, BLE, MRICS, is a partner in Strutt and Parker. He has substantial experience of land and estate management. He was responsible for factoring the various estates at Nevis under direction of the different trustees or directors. He had prepared the written plans setting out the landlords’ policies; in particular, he was responsible for preparation of the “Masterplan” for Tarbet Trust. He provided detail as to the working of the estates and their plans for future development.

[14] Nigel M. Johnston, 55, Architect, Arisaig, gave evidence of the plans for the bunkhouse and related managers house and of his discussions with local planning officers and council officials. The building although a “new build” but would be within the footprints of the original croft buildings. He had some fifteen years experience of working with the landlords on similar projects.

[15] Tom MacKenzie McLellan, 58, BSc.(For.), M.I.C.For., is currently district manager of Tilhill Forestry Ltd. He gave evidence of the history of the landlords’ involvement with the woodlands on the original Nevis Estate, with particular reference to Glac Falaichte. He spoke to discussions with Mr Cameron and to the proposals for the woodland. Although he had long experience of managing commercial woodlands and some experience of working with ancient woodlands, he made it clear that he deferred to Mr Baxter Cooper on the question of the management necessary in the long term.

[16] John M. McDiarmid, 75, JP, MBE, is a sheep farmer and agricultural consultant with wide experience of Blackface sheep. He has given expert evidence on previous occasions before the Court and in arbitrations. He has long experience as an arbiter in agricultural matters. He had visited the croft in July and October 2010. He gave evidence of his assessment of carrying capacity and of the impact of loss of the woodland. He described the possibilities for alternative methods of sheltering the stock.

[17] Andrew Baxter Cooper, MSc. CBiol. MIEEM, Hon Fellow of University of Edinburgh. He had made an initial report 1996 on the ecology of Nevis Estates at a time when there was uncertainty about the east boundary. Accordingly, Glac Falaichte was not included in the report although he had been attracted by the wood and had looked at it at that time. He had carried out a full ecological survey in 2010 using standard techniques to produce his report of August 2010.

Legal matters

[18] Mr Kermack cited a wide range of authorities of possible relevance to the issues before us. However, we think it possible to deal fairly shortly with the main legal principles which we have accepted as applicable. The main contentious area related to the question of whether resumption of land from a croft for the purpose of agricultural use was competent within the scope of section 20. Most of the other cases cited were examples of the operation of the various statutory provisions. The circumstances varied greatly and no case had any apparent similarity with the present.

The legal principles

[19] Parliament has given crofters a right to buy their croft land in terms of sec 12 unless the landlords can establish that for the crofter to do so would create hardship or would be substantially detrimental to the interests of sound management of the estate of the landlord: sec 13(2). Parliament has given landlords the right to resume all or part of the croft if they establish a reasonable purpose in terms of sec 20. There is no doubt that when considering whether a purpose is reasonable the Court must weigh all the relevant circumstances. It is not sufficient for the landlords simply to establish a purpose which, taken on its own, would be reasonable.

[20] If a crofter is able to exercise a right to buy, the landlord will lose the right to resume. Equally if a landlord is permitted to resume any part of a croft, the crofter will not be able to buy it. The tests to be applied in determining matters on the merits are not mirror images. There is an obvious question as to which should have priority in any particular circumstances. The parties did not attempt to support their contentions as to priority by reference to any fundamental principles. Mr Kermack simply submitted that the purchase application should be considered first and, indeed went as far as to suggest that only if the statutory defence under sec 13(2)(b) was established by the landlords, should the resumption be considered at all. We do not accept this nor the relevance of the cases on irritancy cited in Crofting Law, at p82, footnote 1 from which Mr Kermack sought support. He suggested that we should “follow the reasoning” of the Court in MacAskill v Basil Baird and Sons Ltd. In that case the Court was dealing with a defence to an application for authorisation to acquire the croft. The landlords resisted on the basis that they were proposing to start commercial peat extraction and would suffer hardship from a sale. The Court did not accept this and that, accordingly, was sufficient to deal with the matters before them. However, the Court went on to say: “We are not now prepared, nor indeed have we been requested, to grant a continuation for a resumption application. This application to purchase was dated 18 May 1983, Baird only applied for planning permission on 20 August 1984 following Baird’s refusal to negotiate a sale of the croft.”

[21] It can fairly be said that this comment shows that the Court was prepared, in particular circumstances, to attach some significance to the priority of events. But it does not show any particular line of reasoning. If anything, the fact that the Court was prepared to consider the possibility of resumption when no application for resumption had been presented might tend to show that they thought resumption should normally have priority. It is, however, sufficient to say that we treat the remarks as a comment appropriate to the particular circumstances rather than as justifying priority one way or the other.

[22] Sir Crispin did not appear to dispute that weight should be given to priority. He stressed the priority in which the applications were lodged but accepted that the Court had a discretion. For completeness reference may be made to comments made by the Court fairly recently in MacDonald v Johansen : “There is always a tension between a crofter’s right to buy and a landlord’s right to resume. Although the general practice of the Court has been to deal with these matters by reference to the chronological order in which they were raised, this is an exercise of discretion by the Court. The whole circumstances will always have to be considered.”: at para 38. We refer also to our observations in the said Note of 17 May 2010 at para [14].

[23] Where there is no clear reason to go behind it, the date of application to the Court is the best indication of priority because the main concern of the Court is not to give priority to resumption over acquisition or vice-versa. The Court’s concern is with the efficient processing of cases properly before it. In any event, priority in point of time is not a rule capable of rigid application. It may be necessary to look at the sequence of events prior to formal application to the Court. For example, where there have been discussions, it may be a matter of pure chance which party first decides that an application to the Court should be made. It is also important to note that while a dispute over an application to purchase will be limited to a dispute between landlord and tenant, a resumption application will have to consider the public interest and the interests of the local crofting community. This might tend to suggest that a resumption application ought to be dealt with before a purchase.

[24] The issue of priority will normally arise as a question of procedure. The Court may have to consider whether an application should be sisted or delayed to allow a later application to catch up. The Court has a very wide discretion in regulating procedures before it. General issues of fairness may be applied. It may be noted that Sir Crispin attempted to rely on dicta in Jones v Lanarkshire Health Board in support of the contention that as the pleadings had been amended to include reference to all the purposes or proposals in the Masterplan, no questions of priority now arose. However, in the present case, all amendments to the pleadings had been strenuously opposed on behalf of the crofter and we do not think that the mere fact of amendment can govern the matter.

[25] However, where matters have in fact been fully explored at proof, the issues are not straightforward. A landlord has a right to seek authority to resume at any time. That right is not lost until the tenant has acquired the landlord’s interest. Parliament has made no express provision for priority. Although our assessment of reasonableness of purpose allows us to assess and weigh conflicting interests of croft and estate, it is less clear that procedural fairness is a relevant factor for the purposes of sec 20. Accordingly, we have approached the present case by attempting, first, to take a chronological view of the applications and the purposes set out in them. But, as the inclusion of references to public purposes in sec 20 could support an argument that resumption applications should be given priority or at any event that the Court should consider the applications as they stand at the hearing without regard to the order in which proposals emerged, we have gone on to consider matters on that basis. As will be seen we have come to the same conclusions from both standpoints in the circumstances of the present case. It may be that, in a different case, an issue of pure priority may require to be determined and we may come to hear further submission on the matter.

Geographical layout

[26] The subjects, croft 1 and 2 Tarbet, otherwise known as Swordlands, lie at the southeast corner of the tract of land, formerly owned by Nevis Estates Limited, stretching from Glen Tarbet to Mallaig and bounded on the north by Loch Nevis and on the south by Loch Morar. The croft is roughly rectangular in shape and extends to some 700 acres. It is bounded on the south, partly by Loch Morar and partly by the policies of Swordlands Lodge which is owned by Mr Ian R. S. Bond who also owns the estate to the east of Glen Tarbet. The northern boundary of the subjects is apparently on the watershed of the ridge of hills which rise to about 1,000 feet. The west boundary runs down from a loch or lochan, Loch a’ Bhraighaid to Loch Morar on the line of a burn. There was no dispute about these boundaries. They are unfenced. There is a dispute about the boundary to the east but, for the purposes of the present case, it was taken to be the line of a deer fence erected in 1999 which separated the Nevis Estate from Mr Bond’s Estate. This fence runs high on the east side of Glen Tarbet. It may be noted that there had been a deer fence to the west of Glen Tarbet. This appears to have given rise to some initial confusion as to the boundary of the estate acquired by Nevis Estates Limited. We did not hear evidence as to when that deer fence ceased to be functional. It plainly had been derelict for many years before the new fence was erected.

[27] There is a road from Morar on the north side of Loch Morar but it ends at Bracora. There is a rough track from Bracora to Glen Tarbet. The track then runs up the west side of the glen, over the pass and down into North Tarbet.

[28] The bulk of the croft lies to the north of the track and is typical undulating hillside with various outcrops and valleys capable of providing shelter for sheep. To the south of the track, the dominant feature is Swordland Lodge which has extensive wooded policies. We understand that the lodge gates would typically to be left open and many sheep were foraging within the policies at the time of our inspection. The availability of grazing within the policies is, of course, irrelevant to our assessment. It is not suggested that the crofter has any rights in the policies. However, the effect of the wooded policies is to provide sheltered areas on the croft itself.

[29] It should be explained that we used our site inspection to satisfy ourselves that we had a good grasp of the topography and, in particular, to understand and assess the specifics of topography insofar as it related to the issue of shelter for sheep stock. We also considered the suitability of the proposed new vegetable area. We are satisfied that in assessing the conflicting evidence relating to shelter and grazing of sheep and in relation to proposals for development of a smallholding, the Court was entitled to take account of its own experience. In relation to the woodland at Glac Falaichte we satisfied ourselves of the positions of the proposed house sites in relation to the existing tree and vegetative growth but we make no attempt to rely on our impressions as to the state of the woodland or the issues of preservation and regeneration of the ancient woodland at Glac Falaichte. We have no relevant expertise in that regard. It might be said that we came to understand Mr Baxter Cooper’s evidence that the special value of the woodland would not necessarily be apparent to ordinary members of the public.

[30] It was averred by the landlords that “the estate was purchased by Nevis Estates Limited with a view to conserving and improving the land and the amenity value of the estate, for all those who live in, work in or enjoy the recreational use of the area”. This was not challenged. The said tract of land running from Glen Tarbet to Mallaig had been owned by Lovat Estates for centuries and was bought by Nevis Estates in 1995. The funding came substantially, if not wholly, from Sir Cameron McIntosh. We heard evidence that he made the purchase in response to a request from local residents anxious to keep the estate from falling into the hands of foreign investors. Soon after the acquisition, Messrs Strutt and Parker were instructed to examine the land and make proposals for its management. They prepared a plan in 1999. The underlying thrust of the plan appeared to be directed at maximizing the advantages of the estate in the broad public interest. The management objective was defined as:- “The long term survival of the rural communities of North Morar and the preservation of the culture, landscape and environment of the Estate for future generations”. The plan identified a wide range of detailed applications within the scope of that objective. In particular, it dealt with the benefit of preserving existing woodlands.

[31] It appears that at the time of preparation of the plan there were discussions with various crofters about the possibility of taking advantage of Woodland Grant Schemes. Broadly speaking, the estate proposed to provide the capital cost of fencing and crofters who entered the scheme would receive grants for preserving the woodland. Mr Cameron was involved in such discussions. He did not challenge evidence led on behalf of the landlords to the effect that he appeared to be prepared to participate and there were discussions at his house which led the landlords to assume that he had agreed to the plans in general terms. But, this was one chapter of events which was not explored in detail and it is not directly relevant to the issues before us. It appears that it was at or about the time of the initial discussion of proposals by the Estate for preservation of the wood at Glac Falaichte, that Mr Cameron first made a request to buy his croft.

[32] Considerations of priority in the present case are not straightforward when regard is had to time and purpose. The landlords’ proposals for the existing wood at Glac Falaichte did not initially require resumption. They expected that their proposals for control of the woodland would be taken forward as part of a scheme which would leave the wood in the tenancy of the crofter. However, in assessing the question of priority, we think that these proposals can be treated as broadly equivalent to a proposal to resume. If the landlords’ plan for the wood had been put in place, the tenant would have had a form of compensation for loss of use of the wood but it would not have been available to him for his own agricultural purposes while the scheme was in place.

[33] On 14 October 1999 the landlords lodged the present application for resumption. At that time they also lodged two further applications, one seeking to challenge the status of the subjects at 1 and 2 Tarbet as not being a “croft” within the meaning of the crofting legislation and the other contending that the land at Glac Falaichte was not part of the croft. We discussed the implications of the various applications in our Note of 18 December 2009. We need not repeat that material. The present application, as initially framed, covered all the currently disputed areas in Glen Tarbet and also sought to resume all, or virtually all, the wooded areas on the croft, including about a dozen separate areas to the west of the Glen Tarbet track and dotted along the lower parts of the croft to the south. It included a triangular area running to the west from the track through the glen up to the north boundary. This had been intended to be fenced to allow regeneration of woodland to spread from Glac Falaichte to link up with similar regeneration spreading from North Tarbet. The aim at that point was for a broad band of regeneration covering that triangular area and the whole width of Glen Tarbet.

[34] Various parts were deleted from the resumption application by amendment on 11 August 2001. We understood that these deletions were made in response to discussions with the crofter although it was not said that they were based on any explicit agreement. As it stood following that amendment, the resumption application proceeded on a narrative of fact that: “The area which the applicant now seeks to resume consists of two areas extending to 11.1 hectares [existing woodland] and 5.1 hectares of area for regeneration. Both areas require to be fenced to keep out stock and in particular sheep to allow natural regrowth of seedlings in the woodland area and to allow the limited tree plants in the 5.1 ha area to regenerate the area into natural woodland. These areas naturally link in with the proposals for regeneration on the west side of Tarbet. The proposals are for a reasonable purpose for the good of the Estate. The WGS scheme will generate additional income for the Estate. The planting on this resumed area will form part of the overall woodland proposals that will run from Loch Morar to Loch Nevis. This will enhance the amenity and the bio-diversity of this part of the Estate. They are also in the public interest in that the WGS schemes over the whole Estate will provide employment and they are consistent with the Forestry Commission’s proposals for enhancement of natural woodland regeneration. It will enhance the amenity and bio-diversity of this part of the Estate, which is regularly visited by walkers and others”. The proposal made no reference to tourist development within the 11.1 ha area and no reference to development of a smallholding on the 5.1 ha area.

[35] The crofter raised the purchase application SLC-131-01 on 18 October 2001. It referred to a letter from Mr Cameron’s then solicitors on 9 March 2001 seeking to exercise his right to buy. There was no mention of his own request to that effect in 1998. There is little doubt that the landlords understood that the crofter had agreed to deal with Glac Falaichte under a Woodland Grant Scheme. They attempted to enforce this agreement before us but we determined that we did not have jurisdiction to deal with the issue. Proceedings in this Court were sisted on 11 March 2003 to allow the landlords to raise proceedings in the Sheriff Court. The landlords were unsuccessful in those proceedings. For present purposes, the main significance of these matters is that they explain some of the delay between 2001 and 2009. The history also clearly demonstrates that the focus of the landlords’ attention in 2001 was the preservation of woodland. It appears that they took the view that, if this could be resolved by the Sheriff Court action, there would be no dispute about remaining matters. We think that there is no doubt that their substantive purpose was properly to be seen as regeneration and planting of woodland.

[36] After the Sheriff Court proceedings there was some further delay when there were discussions involving Mr Cameron and other crofters for some sort of communal acquisition by the crofters of all the crofting properties in the original Nevis Estate. The croft land on the estate, including Swordlands, was conveyed by Nevis Estates Limited to Bracora Crofters Limited. We heard a good deal of evidence about the circumstances in which this company was set up. We return to some aspects but it is unnecessary for present purposes to explore this in detail. The solum of the track and pier foundations was conveyed to the Macintosh Foundation. In 2007 the resumption area to the east of the track was conveyed to Tarbet Trust.

[37] In 2008 the Tarbet Trust developed their Master plan. This was not shown to Mr Cameron until some time in 2009 and there was no clear evidence that he had any awareness of it before that. He had consulted new solicitors and it appears that by the beginning of 2009 they were wishing to press on with his application to buy. However, the applications were, in fact, wakened by motion of the landlords in February 2009.

[38] It is not necessary to repeat the material discussed in our Notes of 18 December 2009 and 17 May 2010. Put shortly, we allowed the pleadings to be amended to show the new owners of parts of the croft as applicants and to show their various proposals for resumption. In relation to the wood at Glac Falaichte, there were some changes to the proposals advanced as reasonable purposes. There were changes to the detail of what was proposed in relation to preservation and regeneration of the woodland. The proposals were based on the Masterplan. In so far as the proposals in that plan relate to protection and regeneration of the woodland we are satisfied that, broadly, they reflect the initial proposal. But the bunk house proposal was new as was the smallholding scheme. Both were closely related to plans for development at North Tarbet.

The purchase application

[39] On the merits, it is convenient to look first at the defence to the purchase application although we have concluded that that application cannot be determined without resolving issues relating to the resumption.

[40] We are satisfied that, in the context of croft tenancies, we should have regard to ownership of the specific land in question when seeking to identify the appropriate landlord, rather treat divided ownership of the croft land as necessarily leading to joint landlords. Some crofts were statutory creations but most have their origin in agreements, expressed or implied, between landlord and tenant. We are not aware of any original agreements involving joint landlords. The existence of a croft tenancy held over land with a number of different owners is largely a consequence of the various statutory provisions. It cannot readily be assumed that the intention behind such provisions was to view the separate proprietors as joint landlords of the whole croft. For reasons discussed in Lamont v Kennedy, it is clear that Parliament has proceeded on an assumption that a change of title to part of a croft creates a direct landlord and tenant relationship in respect of that part. Although this may give rise to difficulty in other contexts, the provisions of section 13 and section 20 would be difficult to apply if the concept of joint landlord was to be deemed to apply. However, these provisions do appear to work in a reasonably straightforward way if by having regard to individual lands and land owners.

[41] In their pleadings the landlords make it clear that their objection to the purchase is limited to the resumption subjects. In other words Bracora Corfters Limited who are owners of the land to the west of Glen Tarbet have no interest in the disputed matters. The Mackintosh Foundation have an interest in the detail of resumption of the pier and track which they own but there was no substantive dispute in relation to these parts. Tarbet Trust as owners of the resumption area – which is in substance Glen Tarbet - rely on section 13(2)(b) and contend that purchase by the tenant would be substantially detrimental to the interests of sound management of the Estate

[42] We heard submissions that we should “lift the veil” of corporate identity and deal with matters on the basis that all the landlords were essentially a manifestation of the same controlling person, Sir Cameron Mackintosh. However we see no good reason to do so. There is no doubt that the landlords are distinct legal persons. The title was initially held by Nevis Estates and was divided for positive reasons. The various landlords have different controlling bodies. Each might, in practice, give dominant weight to the wishes of Sir Cameron but it is clear that the purposes of Tarbet Trust are quite distinct from those of the Mackintosh Foundation and from those of Bracora Crofters Limited.

[43] No authorities were cited in relation to the concept of lifting the corporate veil but, broadly speaking, it may be said that courts have been slow to lift the veil of corporate identity for the benefit of those who created the separate identity for their own benefit in the first place. We do recognise that there may be circumstances where it would be appropriate to do so. For example, had we been entirely satisfied that Bracora Crofters Limited was created as a separate company solely to assist the exercise the transfer of crofts, we might have been prepared to regard it as simply part of Nevis Estates Limited. But, there is no dispute in relation to the land now owned by Bracora Crofters Limited.

[44] On the other hand, we are satisfied that the Tarbet Trust and the Mackintosh Foundation are quite distinct entities and that the test to be applied to the disputed resumption area, in terms of sec 13(2)(b), must be based on the interest of the Tarbet Trust as owners of the relevant land.

[45] Mr Kermack subjected their Trust purposes to careful scrutiny. The Trust Deed does appear to make a clear distinction between the “Property” which is defined by reference to specified areas of land at North Tarbet and the “Trust Assets” which cover the Property and also all other assets held by the Trustees. There is no doubt that the Trust is aimed at preservation and promotion of a sustainable community at the Property, namely subjects at North Tarbet. The Trust has a narrow focus. We accept that consideration of sound management of an estate is not necessarily limited by the purposes of a Trust applicable to the current owners. However, in practical terms we consider that for the purposes of section 13 the Trust purposes must be taken as a dominant aspect of management.

[46] We are not persuaded that refusal of the tenant’s application to buy would advance these purposes. If Mr Cameron remains as crofting tenant, the landlord will have no right to build holiday accommodation on the croft; to take over parts of it for development of a smallholding; or, indeed, to control use of the wood. In their pleadings in the purchase application the landlords say that they would be more likely to be able to influence a tenant if they continued to have a role as landlords. But this is speculation. It was not spoken to positively by any witness.

[47] We are satisfied that the various disputed issues in relation to the proposals for use of the land in question do not justify a finding that the making of an order under sec 13(1) would be substantially detrimental to the interests of sound management of the estate of the Tarbet Trust except in so far as the purchase would preclude the landlords proposals for resumption. These proposals are an aspect of their estate management. We accept that if the resumption is to go ahead, this would, in theory, provide a defence under sec 13(1) although that would be superseded by the resumption itself.

Resumption

[48] When considering the conflict between the right to seek authority to resume and the right to purchase we have had regard not only to chronology in general terms, but to the specific purposes relied on from time to time. Mr Cameron founded on a solicitor’s letter of 9 March 2001 as the start point of his application to buy. There is nothing to show that the attempt he made in about 1998 was a spontaneous request as opposed to a reaction to the landlords’ proposals in relation to the woodland which were being discussed at around that time. We are satisfied that the purchase application should have no priority over the landlords’ proposals for preservation and regeneration of the woodland. However the landlords lay weight on the Masterplan and have attempted to characterise it as being no more than a development or detailed working up of the original 1999 report with its many proposals for development of Nevis Estates as a whole. It is important to note that the 1999 report was not the basis of the initial resumption application. We proceed, at this stage, on the basis that if a resumption is to have any priority over an application to purchase it must be based on the resumption purpose specified at the time.

[49] The landlords stressed that the reasonable purpose which they advance in terms of section 20 is the whole scheme covered by the outline planning permission and the Masterplan. However, we are satisfied that a range of identifiable purposes does not fall to be treated as a single unit simply because it is labelled as such. Mr Kermack argued that section 20 referred only to a purpose in the singular and that it did not permit more than one purpose to be considered at one time. However, as a matter of statutory interpretation, unless a contrary intention appears, words in the singular include the plural and we see nothing to indicate a contrary intention in the context of sec 20. We see no reason why a landlord should not advance several distinct purposes in relation to an application to resume. Where the purposes are inter-related it would make obvious sense to have them in the one application. Where they are distinct it might be a matter of circumstances whether they could conveniently be dealt with in the one application. It is plainly cheaper to approach matters on that basis and we cannot read the statutory provision as requiring multiple applications. We consider that the normal approach of the Court where a variety of purposes can be identified should be to look at the detail of the proposals as they affect the land sought to be resumed and to be free to exclude parts if not satisfied that a reasonable purpose has been established for resumption of them.

[50] We consider that the important aspects of the timetable in relation to this resumption application are that, in 1999, the landlord sought to resume certain subjects for the purposes of woodland preservation and regeneration. It appears that there was discussion about this but, in any event, the application to purchase was made in 2001. We have referred above to the proceedings taken in the Sheriff Court. At or about the same time it appears that the crofter, acting with other crofters on the Nevis Estate, made a further application to purchase. This was resisted by the landlords. They sought to proceed by a scheme whereby the crofters, as a group, would acquire title to be the whole croft land and to the whole common grazings. Mr Aitchison gave evidence that Bracora Crofters Limited was formed solely for the purpose of providing a vehicle by which the crofters could acquire appropriate rights. They would each receive an appropriate number of shares in the company. This would save individual conveyancing and save the landlords from having to be concerned in the negotiation of detail of shares and boundaries.

[51] One odd feature of this plan was that the wood at Glac Falaichte was included in the land transferred to Bracora Crofters Limited. Mr Aitchison did not attempt to suggest that it had been included in error. Mr Kermack suggested that it was not easy to understand how it had come to be included if there was no intention of conveying it either to Mr Cameron or to any other crofter. Mr Aitchison attempted to explain the matter on the basis that the Estate knew that the question would depend, in any event, on the decision of the Court in the present action. But the Estate did not in fact await the decision of this Court. On 3 December 2007 the land to the east of the track in Glen Tarbet was conveyed to the Tarbet Trust. Mr Kermack suggested that this chapter of events could be explained more cogently as an attempt by the landlords to minimise the potential impact of the right a crofter community to buy eligible additional land in terms of sec 70 of the Land Reform (Scotland) Act 2003. It is unnecessary for us to deal with this suggestion. Mr Aitchison said this had not been part of their thinking. However, it may reasonably be thought that the new proprietors of other parts of the original Nevis Estate would have felt entitled to rely on the separation of title had the occasion arisen.

[52] But, for present purposes we do not think that anything turns on the reasons for the changes in title. We can accept that the delay between the crofter’s application in 2001 and the landlords’ recall of the sist in 2009 should be regarded as neutral in the sense that it is not possible to say whether either side was, in any relevant sense, at fault. But two facts remain. One, is that if the applicant was not at fault for the delay it must be accepted that from 2001 he had an application pending before the Court in which he was seeking to purchase his croft. The second is that, although the landlords also had an application pending, their application was to resume for purposes of regeneration and preservation of woodland. It was not until 2009 that the purpose changed to include the wider purposes described in the Masterplan.

The purposes of resumption

[53] As described briefly above, the proposals before us involve three distinct parcels of land. We deal with them in turn.

Pier and track

[54] Resumption of the solum of the foundations of the existing pier, or jetty, and the track is no longer a matter of dispute. Mr Cameron freely conceded that, as long as he had right to use the pier and track, he had no objection to the landlords resuming these parts. We note for completeness that it is plain that his right to use the track must include the right for his stock to cross freely over it. However, he objected to resumption of the whole Rubha Dubh peninsula which was said to be related to the resumption of the pier.

[55] In our view, no reasonable purpose has been established to justify resumption of the peninsula. The existing pier occupies only a small area which may fairly be described as being to the northeast of the peninsula rather than part of the peninsula itself. In any event, the land slopes steeply down to the pier and the area available for development at the pier itself is very limited. We heard some discussion of plans to improve transport links and to open Loch Morar to fishing by people staying at Tarbet but we heard nothing specific in relation to use which might be made of the higher part of the peninsula in that connection. The landlords averred a need to improve the pier to meet safety requirements but there was no indication that this would require any specific additional landtake. We are, however, satisfied that it is reasonable to allow resumption of land immediately adjacent to the pier for the purposes of maintenance, development or rebuilding of the pier and for shelter facilities for travellers.

[56] We were not addressed on the detail of the topography and consider it is premature for us to attempt to delineate a suitable area on plan. We have in mind something of the order of a 5 to10 metre strip but the precise area will be determined by the landform. We invite detailed proposals.

[57] In relation to the track, we consider that something of the order of a 6 metre strip centered on the existing track should suffice to cover the existing track itself and related ditches and drainage. We would, however, invite submissions to deal with any practical difficulties which parties may wish to have addressed.

The smallholding

[58] The proposal to use a parcel of land as a smallholding involves some 5 ha of land to the east of the track consisting of a comparatively level area, lying, broadly speaking, in the central area of the pass between North and South Tarbet. Near the crest of the pass it is rough moorland typical of the appearance of the rest of the croft. As it extends south it is predominantly bracken covered. In the pleadings the purpose of resumption is referred to as “The provision of some agricultural land for use by a proposed smallholding.” For detail, reference was made to the Masterplan. The purpose as described in the Masterplan was said to involve the development of a smallholding based on resumption of various areas of land from the existing croft at North Tarbet and use of such areas there along with the said parcel of land. We are aware that an application has been made for resumption of the areas at North Tarbet. For present purposes we can simply assume that the parcel in question could be used along with land at North Tarbet as proposed. Sir Cameron is the crofter and plainly is free to use his croft, either at his own hand or by an employee, for agricultural purposes and for other constructive uses. It is unnecessary for us to say anything about the prospects of success of that application.

[59] In the Masterplan, the purpose of the development of a smallholding was said to be to produce “added value” produce for sale to the local community, holiday cottage tenants and visitors to Tarbet. For the landlords it was said that it was there to generate an additional income stream and employment opportunity by producing vegetables for sale to the local community, holiday cottage tenants and visitors to Tarbet and providing a visitor attraction/interpretation. We heard that the smallholding might be used in part for keeping sheep which would be capable of being used as part of the management of Glac Falaichte, discussed below. But clearly the main purpose of the land to be resumed was to be the growing of vegetables. This purpose was not foreshadowed in any way in the original application. Not only was this purpose quite new, it became apparent that it was a purpose which conflicted with the original.

[60] The original scheme involved regeneration of woodland between Glac Falaichte and the remains of woodland areas at North Tarbet. We heard some suggestion that these two separate areas had originally been part of one forest but we do not think that the evidence positively supported this. We proceed on the basis that the two areas of woodland have been quite separate for hundreds of years. However, that point is not of critical importance. We do accept that there would be a public benefit in the establishment of a link. This would encourage bio-diversity and would add to the visual attraction of the area. There is no doubt that use of the land in question as part of a smallholding instead of protecting it for regeneration of trees would detract from the potential for a link. The landlords’ witness, Mr McLellan, had apparently been unaware of the change from the original plan and of the new proposal to use the central area as a smallholding instead of being the central part of the link between north and south woodlands. However, he made valiant attempts to show that the absence of any connection in the central area would not be of critical importance to the overall scheme of development of such a link. That may indeed be so. Some linkage will still be possible using the ground to the east of the proposed smallholding. But the loss of the centre cannot be thought to be a positive step in this context. Be that as it may, the fact that one purpose might tend to detract from another purpose is not in itself of critical importance. The two purposes might remain reasonable purposes within the meaning of section 20.

[61] The main challenge to the smallholding proposal on its merits was based on the proposition that resumption of land from a croft to allow it to be used for agricultural purposes could not be a reasonable purpose within the meaning of section 20 and that such an application necessarily fell to be refused as incompetent. We recognise that there may, in practice, be little distinction between a finding that such an application is incompetent and a determination that use for an agricultural purpose can never be regarded as a reasonable purpose within the meaning of section 20. It is apparent that these different ways of expressing the matter have been used almost interchangeably.

[62] Mr Kermack pointed out that applications for resumption for use of land for agriculture either by a landlord or third party have consistently been refused except in circumstances where the resumption has been thought appropriate to give legal effect to a situation which had been ongoing for many years. He referred to various cases including: Tabor v McMaster; Dunbeath Estates v Henderson; Dunbar’s Trustees v Winless Common Graziers; Walkerv McEwan; Palmer v Crofters Commission; and MacColl v Crofters Commission.

[63] In Dunbeath Estate Ltd v Henderson the Court said expressly that resumption of part for agricultural purposes was incompetent. The case was an application to authorise resumption of some 5,530 acres of common grazing for the purposes of conservation. The Court was not persuaded that the purpose of conservation applied to the whole area and, in any event, thought that, in relation to a woodland area, it was not necessary for conservation to take the area out of crofting tenure. As the application had been presented unopposed on an all or nothing basis and with the consent of the crofters having been given on that basis, it necessarily failed. The Court did, however, go on to deal with a proposal by the landlords to introduce goats instead of sheep “to keep the sward”. The Court said: “It is not, however, competent for a landlord to resume land out of agriculture for the purpose of farming it himself”. The authorities cited were Turner v Wilson and Tabor v McMaster.

[64] We regard that comment as obiter. It was not necessary for the decision and was made after an unopposed hearing. The Court did not require to distinguish use of stock for the environmental purpose of “keeping the sward” from the agricultural purpose of using grass to keep the animals. Although it is plainly entitled to weight and it appears to reflect the established practice of the Court, we accept that the authorities cited do not establish the principle expressed.

[65] Turner v Wilson dealt with construction of a lease of subjects governed by the Agricultural Holdings legislation. We are satisfied that it cannot be read as establishing any general proposition relating to the competency of resumption for agriculture. There was no attempt to decide the case on that basis. On the contrary, there was careful examination of the lease to decide whether such a use might be permitted.

[66] In Tabor v McMaster the Court was dealing with a case where it was satisfied that the landlord had put forward a strong case for taking back all the croft land to work it with an existing, well run, farm enterprise. The crofter appears to have accepted that the land was run down and neglected but she proposed to assign it to a relative who would bring it back into cultivation. The Court refused the application saying: “It is, however, well established law that the resumption of land occupied by an agricultural tenant for the purpose of reletting the land to another agricultural tenant is not a proper use of the process of resumption”. Under reference to what might be described as the “floodgates” argument the Court went on to say: “We think it is beyond doubt that the right of resumption reserved to landlords in the Crofters Act is designed to enable landlords to recover possession of land in the occupation of crofters with a view to using that land for other than purely agricultural purposes and that to allow the exercise of this right in order to extend a landlord’s own agricultural operations would be completely contrary to the intention of the legislature”. This is a powerful observation but it was made in the context of an application for resumption of the whole croft land and we think the position less clear when small areas are involved.

[67] Nevertheless, there is no doubt that the Court has accepted this as a proper approach to resumption. There have been few exceptions. In Dunbar’s Trustees v Winless Common Grazings, the Divisional Court accepted that the real purpose of the resumption was to regularise a longstanding state of affairs but went on to say “On the first reading of the application resumption appears to be for an agricultural purpose and as the Court has said in numerous cases the Court will not authorise resumption for an agricultural purpose”. In Walker v MacEwan the Court said: “It has been repeatedly held that [resumption for the purpose of reletting a part of the holding as an agricultural holding] is not a permissible exercise of a power of resumption in an ordinary agricultural lease (cf Crichton Stuart v Ogilvie and Admiralty v Burns) and following these cases the Land Court has frequently held that such a purpose is not a reasonable purpose for resumption of a landholder’s holding”.

[68] These comments reflect the settled practice of the Court. But it may be said that a practice of finding that resumption for agricultural use is not a reasonable purpose does not mean that the Court might not, if the circumstances were right, find that resumption for such purpose could be allowed.

[69] MacColl v Crofters Commission was an appeal against a decision by the Crofters Commission to refuse a decrofting direction. Reasonable purposes in that context, in what is now sec 25, are defined by reference to sec 20, but, of course, the test of what is reasonable is one which depends on assessment of particular circumstances. The circumstance that a landlord is seeking to take back some land from an unwilling tenant is obviously quite different from the circumstance of an owner/occupier seeking to be free from crofting control. It is, accordingly, unlikely that examples of decisions under sec 25 will cast much light on an assessment to be made under sec 20. In MacColl, as in the present case, there had been reference to the provisions relating to small allotments as part of the argument that use of the land for agriculture could be a reasonable purpose within the meaning of sec 25. The Court said that it was not a reasonable purpose that cultivation was to be carried on personally by the landlord. In that case, the landlord as occupier could carry on making precisely the same use of the land without decrofting.

[70] Mr Kermack spent some time in dealing with the contention in the landlords’ pleadings that the landlords’ basis for resumption of what we have called the smallholding area was equivalent to a proposed use as a small allotment. He made the point that the underlying concept of an allotment was the lease of land to the allotment holder. Here the land was to be held by the Trust and used by an employee. He stressed that all previous discussions of allotment had made it clear that an allotment was a small area, not an area approaching that of an agricultural subject. In the event, Sir Crispin did not attempt to support the argument that the proposed smallholding could be treated as if it was a “small allotment” within the meaning of sec 20(3)(a)(ii). He argued simply that the inclusion of allotments as an example of a reasonable purpose in the section meant that cultivation of land for purposes which would fall within the usual meaning of agricultural use demonstrated that use for agricultural purposes was not fundamentally incompatible with the intention of Parliament.

[71] Sir Crispin’s main submission was that, although the Court had often held that resumption of a holding for agricultural uses was not a reasonable purpose, such decisions should be seen as determinations based on specific circumstances. They did not justify a conclusion that it was incompetent to seek permission to resume simply because the use to be made of their land could be said to be agricultural. In addition to discussion of the cases cited by Mr Kermack, to which we have referred, he took us to the Board of Agriculture v Maclean. This was an application to resume the whole holding. It was clear, he said, that the Divisional Court comments were directed at the attempt to resume the whole: for example, at page 75. That was contrasted with resumption of small areas which would continue to be put to agricultural use albeit that the resumption was said to be for purposes such as straightening marches or reorganisation of holdings: at page 77. The Court, indeed, appeared to countenance the possibility of resumption of quite substantial parts of a croft as part of an overall reorganisation. The point Sir Crispin made was that there was no suggestion that mere continuance of agricultural use necessarily made an application incompetent.

[72] He accepted that the Full Court in that case had used the term “competent” but that was in the context of explicit reference to a resumption which demanded “the extinction of the land holding for the purpose of reletting it to other landholders”: page 81. The argument being advanced by the landlords in that case was explicitly addressed to the situation where the entire holding was to be taken from one tenant and given to others in his place. There was discussion of a concept of such a resumption being contrary to the good faith of a lease. The landlords, in that case, argued that this concept had no bearing on a statutory power of resumption. However, it seems plain that the Court took the view that there was a “deeper and more vital principle applicable to resumption than a mere rule of construction”: at page 83. That principle was not explicitly identified but, on the following page, there was discussion of the distinction between the process of resumption and termination of a lease. “A clause of resumption necessarily excluded the idea that it could be invoked in order to obtain possession for no other reason than to relet the subjects to other tenants. That would merely be a termination of the lease instead of a resumption.” The Court founded on the decision in Crichton Stuart v Ogilvie as establishing a principle applicable to statutory resumption as well as private contract: at page 84.

[73] It can be assumed that the principle the Court had in mind was based on the observations that power to resume had to be exercised bona fide. But whatever the precise principle taken to have been established by the decision in Crichton Stuart, it is abundantly clear that that decision could not have been thought to be authority for the proposition that any resumption for agricultural purposes is incompetent. The decision was to a contrary effect. The case raised the question of the scope of provisions in the Agricultural Holdings (Scotland) Act 1908 requiring six months notice of termination except in relation to “any stipulation in a lease entitling the landlord to resume land for building, planting, feuing or other purposes”. The lease in question was of a grass park and allowed resumption on one month’s notice for “any purpose whatever except that of letting to another agricultural tenant”. It was held that the landlord was entitled to resume for his own agricultural use on one month’s notice. Although the Lord President treated the matter simply as an issue of construction, both Lord Johnson and Lord Skerrington dealt with the underlying principle that a power to resume should be exercised bona fide. Such a power could not be used simply as a cover for terminating a lease. The purpose of resumption “must be consistent with the good faith of the lease”. “Resumption for any purpose is inconsistent with the tenant’s continued occupation. But if it is for the landlord’s personal use, and not to enable him to relet to another tenant, it is not inconsistent with the good faith of the lease”: p 892.

[74] This observation must be seen as an observation directed at the specific lease in question. But its effect is more general. Resumption for agricultural use is not necessarily inconsistent with a power of resumption. If that is so for contractual purposes, it is difficult to see why it should be assumed to be the case in a related statutory context. The Court in Board of Agriculture v McLean in expressly relying on Crichton-Stuart cannot be thought to have been contemplating a distinction between ordinary farms and crofting tenancies. We plainly must give weight to the decision in Crichton-Stuart. We see little difficulty in a general proposition that it would not be a bona fide exercise of a power of resumption to use it to terminate a lease in order to relet to another, but the case, itself, is a clear example of the superior Court’s acceptance that termination to use the land for agricultural purposes is not essentially inconsistent with the concept of resumption.

[75] In short, despite the obiter reference to competency in Dunbeath v Henderson, we are not persuaded that resumption for agricultural use is necessarily incompetent. We think that it is difficult to see how it could ever be said to be a reasonable purpose in the context of an application for decrofting and in practice it would rarely be capable of being seen as reasonable in the context of sec 20. We are satisfied that we must have regard to the merits of a landlord’s proposals and cannot simply reject them on the basis that, being for agricultural use, they are inconsistent with the scope of sec 20. But, it is clear that the decisions of the Land Court show a settled practice which requires, at least, a presumption against the reasonableness of any purpose which does not propose to change the nature of use of the land from agriculture. Parliament has had various opportunities to change the law and we are satisfied that the settled practice of the Court is a sound basis for such a presumption. We should not authorise resumption unless it is quite clear that the purposes of the landlord are of a nature which justifies removal of the land from the crofter and from crofting tenure.

[76] For the landlords, it was argued that the smallholding should be accepted as having several reasonable purposes in the context of the overall Masterplan. As we have seen, the “smallholding area” proposed to be resumed from the subjects was to be used along with two identified areas at North Tarbet to create one smallholding to be operated by an employee of the landlords. It was proposed that it be used for a variety of purposes including the keeping of pigs. It was suggested that it would also provide grazing or fodder for the sheep which might be used in the woodland management regime. However, our immediate concern is with the use of the land to be resumed. The main thrust was directed at use of this land for vegetables.

[77] We heard no expert evidence as to the viability of the vegetable growing plan. Sir Crispin relied on the evidence of Mr McDiarmid which, he suggested, was “very supportive” of the idea that vegetable growing was a practical proposal. The idea for the growing of vegetables was said to have come from the expressed desire of some summer residents to have locally grown vegetables. No doubt permanent residents in Highland areas would also welcome locally grown produce. The fact that it is not readily available points to the difficulties involved. We recognise that North Tarbet faces the particular difficulty of having no sun to warm the land from October to March. But, many vegetable crops can be grown in summer months in other parts of Scotland if conditions are suitable. We heard no informed evidence as to the suitability of the proposed site. It is southfacing but much of it is effectively a hill pass. Such a location may well provide good shelter for stock on occasions but such passes tended to be windy places and we heard no evidence of any particular suitability of this land. No experienced witness was led to speak to matters such as soil depth, soil quality or wind effects. Reliance was placed on the current bracken as tending to show that the soil was essentially fertile and we accept that as a reasonable inference although eradication of bracken is far from easy and much of the area is not, in fact, bracken covered. Some reliance was also placed on the suggestion that the layout of the land suggested that it had previously been used for lazy beds. We did not find evidence of any significant area of lazy beds although we accept Mr Sidgwick’s evidence that attempts may well have been made in the past by the former residents of South Tarbet to grow potatoes or bere. Having ourselves examined the proposed site of the smallholding, we are satisfied that Mr Sidgwick’s assessment was accurate. He had seen similar schemes “end in tears”. Although the presence of bracken did indicate better soil, much of the area was bedrock. He thought the wind through the bealach would impede growth.

[78] We recognise the expertise of Mr John McDiarmid in relation to sheep but there was no attempt to set him up as having any knowledge or experience in relation to growing of vegetables generally, far less the growing of vegetables on a West Highland hillside. It may be noted that in his written evidence his views on the matter were expressed in the following terms: “Provided that one has the ability, the determination, the desire and above all the financial resources to create a smallholding from the area earmarked, this is quite possible”. It may be said that this is hardly a ringing endorsement of the proposal. It is not “strongly supportive” of it. Mr McDiarmid said it was a project which was not for the fainthearted. He did explain that the land would be more suitable than land at North Tarbet. We accept the comparative advantage of the south facing aspect. But we are not satisfied that this would outweigh the effects of greater height and wind through the pass compared with the relative shelter of the North Bay area.

[79] The growing of vegetables would be unlikely ever to be an economically viable exercise there. When Mr McDiarmid was asked how the output would compare with the input required, he simply answered that time would tell. But we heard evidence of the efforts that would be required to break in the land. It would be years before it was productive. We have no doubt it would require a great deal of attention. It is enough to say that we were not satisfied that the growing of vegetables would ever be economically viable taken on its own. If it was to be justified it would only be on the basis that the availability of fresh vegetables would in itself be a tourist attraction. We heard no evidence of this. No doubt resident visitors would like fresh vegetables but we heard no evidence that visitor numbers would depend on availability of vegetables.

[80] It may be added that a possible justification of using this land along with the identified plot at North Tarbet was that it would create a bigger unit capable of providing employment. However, as a general proposition, we would be slow to accept that provision of employment for which there was no economic justification would be a reasonable purpose for resumption. Where such work leads to creation of a physical capital asset, other considerations may apply but, in the circumstances of this case, the prospect of employment for vegetable growing is not a persuasive factor.

[81] Having regard to the whole facts and circumstances including the well established attitude of the Court to resumption for agricultural use, we are not satisfied that the landlords have established a reasonable purpose. If the land in question is capable of being converted to profitable use for growing crops, this is a benefit which should be left as part of the existing croft. Although Mr Cameron will not be likely to use it in that way, another crofter might. In any event, we are satisfied, as discussed below, that the ground in question is currently of considerable value to the croft as a base for winter feeding and a source of an important “early bite”. It may be added that although the tenor of Mr McMillan’s evidence was that he would be surprised if it could be used for vegetables, he made the point that if this area was fit for vegetables it would also be fit for hay and that, itself, would be a valuable asset for a crofter.

The woodland at Glac Falaichte

[82] Assessment of the landlord’s purpose in relation to preservation and regeneration of the woodland requires a difficult balancing exercise against the value of the land to the tenant in providing both shelter and early season sustenance for his sheep.

[83] There was an impressive weight of evidence speaking to the value of the existing wood and the benefit of preserving it in the long term in the public interest. Although there was some cross examination by Mr Kermack to the effect that the wood was not of national importance because no public body had taken positive compulsory steps to protect it, the direct evidence was unanimously to the effect that it had considerable public importance. The relevant public bodies had seen no need to intervene because they were satisfied that the landlords’ proposals were appropriate. Reference was made to various statements of Government policies. For example, in “The Scottish Forestry Strategy 2006, the Executive stressed the importance of native woodlands. In relation to “Enhancing biodiversity” it was noted that “Scotland’s ancient semi-natural woodlands are some of our most diverse ecological systems. But they are a fragment of what used to be our natural forests. As an indicator of sustainable forestry and an irreplaceable habitat, it is important to maintain their area and safeguard their condition”. Glac Falaichte was described by the experts as ancient woodland meriting protection. The Strategy noted the need for neglected woodlands to be brought into active management.

[84] The tenant’s own witness, Mr Kirkham gave powerful evidence of the value of the wood. Perhaps the most telling aspect of his evidence was the fact that his enthusiasm for the woodland had been generated spontaneously. Although led as an expert witness for Mr Cameron he described how he had come across the wood accidentally while stalking and had immediately recognised its quality and importance. He described it as a “gem” and “a wonderful woodland”. In course of his evidence he made various spontaneous comments describing it as a special wood.

[85] His initial view had been that the wood was in good order as it stood and that the existing regime had appeared to work well. However, he accepted in cross examination that he could not say that the wood showed any evidence of new saplings ready to grow up to replace any mature trees which might fall. He accepted that the absence of saplings could be due to grazing pressure. Although he said that the current state of the wood could have been created by grazing pressures and it was that which made it so special, he accepted that he was not in a position to say how it could best be managed for the future. He also accepted, in cross examination, that some management was necessary in the long term interests of the wood. In relation to such management, he expressed a preference for minimal interference and emphatically made the point that artificial attempts to assist regeneration by planting were unlikely to be successful. He said that regeneration by controlling stock would be preferable.

[86] He was taken through Mr Baxter Cooper’s report and did not appear to express any significant disagreement. He explicitly agreed that there was a risk of long term structural damage due to lack of natural regeneration and that this could be affected by grazing pressures. He accepted that “doing nothing” was unlikely to meet conservation objectives. He accepted the need for control of bracken and control of the spread of rhododendron. He said he was not an expert on sheep but accepted that free grazing by sheep would not be the best way to manage the wood. Careful management was required. He specifically accepted the proposition that although, in the short term, the wood could be left to its present use, for the long term it needed management and the sooner that started the better.

[87] Although Mr McLellan and Mr Baxter Cooper spoke in more detail to these matters and made clear their view that uncontrolled grazing by sheep would eventually prove harmful to the wood, it can be said in broad terms that there was no real disagreement among experts about these matters.

[88] It was accepted that management might involve simply watching and being prepared to act when necessary. A simple example of that would be in relation to the risk of spread of rhododendrons. There was no sign of rhododendron in the wood at present but management would require monitoring and active steps to deal with any seedlings which might emerge. It was agreed that there was a risk of rhododendron spreading. If the invasive species ponticum got into the woodland, its uncontrolled growth would be fatal to the long term health of the wood. The nearest plants were said to be at Bracorina and the main identified risk was of seeds being carried into or near the woodland on walkers’ boots. We did note a substantial rhododendron bush in the garden of the croft house adjacent to the track. The evidence of the risk of seed on boots of walkers suggests that if that was a plant of the species ponticum it would be the main source of risk at present. However, we heard no evidence relating to that bush and were unable positively to identify the species. The danger of seeds being carried from Bracorina may be slight but it was a matter raised on behalf of Mr Cameron in relation to the bunkhouse proposal and it can be taken to be accepted by him. We are satisfied that the landlords, managing the wood positively, would be more likely to take appropriate steps to deal with any intrusive rhododendrons than the crofter would in using it for his sheep.

[89] We had cross examination on behalf of Mr Cameron to the effect that the present state of the woodland was attributable to an unrestricted grazing regime going back for hundreds of years. But, we did not have direct evidence of that. We heard evidence that change in the overall structure of such a wood might not be apparent for very many years. In other words the present state of the wood might be attributable to the fact that it had been protected from animals more than 50 years ago. The witnesses were unwilling to commit themselves to any view of the ages of the present mature trees. It would require particular specialist skill to determine the ages without potentially harmful coring tests. But the clear impression they had was that many of the trees were over 100 years old. We do not know what regime was in place in the early years of the current trees but we think it probable that Glac Falaichte was protected by fencing. Maps produced appeared to show the bulk of the woodland as a distinct parcel of land in the area of the dwellings. Mr McLellan said it was likely that the state of the wood was attributable to periods when stock had been excluded. There was nothing to contradict this.

[90] The evidence of the condition of the wood at present was that it had no understory of young trees which would be able to grow to replace any of the mature trees lost by age, disease or storm damage. We did find several fallen trees at inspection and have no doubt that the risk of loss of the existing mature trees is very real. Without well established saplings to take their place the wood would be likely to die out in time.

[91] We heard that various factors might tend to lead to a lack of saplings. Where there is an existing dense canopy, saplings are slow to make progress. Where there are years of poor seed production there may be few seedlings available to grow on to become saplings. However, we are satisfied on balance of probability that the dominant reason for absence of any saplings of any significant age is browsing by stock. The experts spoke to seeing an abundance of new seedlings in the summer months of 2010 but the evidence was that when food was in short supply deer and sheep, if they had access to the wood, would remove the growing tips. The seedlings would never progress. Since 1999 the wood has been protected by a deer fence to the east together with a programme of deer control by culling. We are satisfied that the absence of evidence of any identifiable understory of growth over the last 10 years is likely to be attributable to grazing by sheep. Accordingly, we have no difficulty in concluding that control of sheep is necessary if the long term welfare of the Glac Falaichte woodland is to be secured. We are satisfied that control of sheep will only be achieved by providing for the landlords to have control of the wood. They have the resources to manage it for the benefit of woodland growth rather than for agricultural purposes. Mr Cameron did not accept the need to do anything about the wood and was straightforward in saying that he would not be prepared to take advice as to how he should manage the wood. In any event, when considering this issue we must have regard to the possibility of a different crofter eventually coming to take over the croft. We must have regard to the long term benefit of the wood. If it is to be actively managed to ensure its long term survival, it is clear that such management must lie in the hands of the applicants.

[92] We do not think that it matters what the best management tool will turn out to be. What is clear to us is that proper management requires a facility for sheep to be excluded. It will be essential to treat sheep as a tool for management of the wood and not to treat the wood as an agricultural resource. The weight of evidence was to the effect that the value of the wood lay in the trees. The main emphasis on bio-diversity was in the context of the proposal to create a link between the wood at Glac Falaichte and the existing woodland at North Tarbet. However, the final witness, Mr Baxter Cooper emphasised the wider aspects of the value in the wood. The trees were the most obvious feature but the low level vegetation was, he said, also of considerable importance. He described the wide range of flowers, grasses, ferns and bryophytes he had found there. This created a complication for management which had not been recognised when the initial proposals for woodland control were being formulated in 1988. At that time, the thinking was that complete exclusion of the sheep would be appropriate. However, it now appears to be thought that sheep have an active part to play in keeping down bracken and coarse grasses such as molinia and allow the continued development of important low plants. Accordingly, the current thinking is that sheep should only be excluded for a matter of weeks or months in the early summer but some sheep should be used thereafter as a management tool. However, Mr Baxter Cooper thought that such a method of control might require some modification in light of experience.

[93] Mr Kirkham and Mr McLellan also gave evidence of use of grazing animals as a tool for woodland management. However, it appears that this is something of a new science. Mr McLellan had attended a training seminar on the subject but this related to use of cattle. He had no experience of use of sheep. However, he was aware of the existence of new techniques. He explained that the Government grants were still based on a requirement of complete exclusion. The Government, he said, had not caught up with modern developments. On the evidence, we cannot be satisfied that current techniques will necessarily prove to be the best. But positive management in the interests of the woodland requires a facility for exclusion of sheep.

Impact on the croft

[94] Although we are satisfied that it is reasonable in the public interest to take steps to protect the long term welfare of the wood we have no doubt that, in determining whether this is a reasonable purpose in the context of the provisions of sec 20, it is necessary to weigh all the effects. The evidence was clearly that loss of the woodland area would have an adverse impact on the scale of agricultural activity on the croft. There would be a loss of shelter and a loss of available early feed. This could have a knock-on effect on the quality of lambs.

[95] Although many resumptions may have little or no impact on agricultural activity, the Act recognises that any loss of land may have an adverse economic impact on the croft. There is express provision for compensation in sec 20(1). It is plainly expected that the Court will have to make an assessment of the benefits to be expected from any resumption as against the expected disadvantages. In short, the mere fact of adverse impact on agricultural activity is not, itself, an answer to a resumption.

[96] The exercise involves the balancing of interests which are not directly comparable. We have no doubt that Mr Cameron genuinely considered the shelter afforded by the wood to be of great importance to the proper management of the croft. It also seemed clear that he regarded the use of the land for sheep to be, in itself, a matter of importance if not a point of principle. Mr Sidgwick, his expert witness, tended to express the matter in terms of a right to continue the present operation. In their pleadings the landlords made various suggestions of ways to ameliorate the effects of the loss of Glac Falaichte. They referred to use of a pole barn for shelter. There was reference to provision of shelter belts. As the duty in terms of sec 20(1) lay on the landlord to make adequate compensation and this might be in kind rather than in cash, it was perhaps surprising that Mr Cameron appeared to have made no attempt to clarify the terms of the landlords’ offers or to discuss with them any possible alternative provision. However, we do not criticise him for that. It does tend to support his evidence as to his view of the importance of the wood and his view that nothing could compensate for its loss.

[97] In terms of sec 20, the Court must consider the good of the croft, the good of the estate and the public interest. It must also give consideration to the interests of the crofting community. In the present case we think that, in substantive terms, an important interest on both sides of the matter can properly be regarded as being the interest of the public. We heard some discussion as to what might be meant by the term “public interest”. We are not satisfied that any of the dicta cited to us provide any real guidance. It will mean different things in different contexts. We do not think that it is limited to the “national interest”, if that expression is used in the sense of the nation as a whole. We are entirely satisfied that it means something wider than the patrimonial interests of people living in the vicinity. It relates to the interests of the public at large. That might take the form of the interests of the public as potential tourists or the interests of the public in preservation of sites seen as important only to specialists in ecology. It is unnecessary for present purposes to attempt to define the scope of the term. We are entirely satisfied that it is correct to speak of the public interest in preservation of woodland just as it is appropriate to speak of the public interest in preservation of crofting as a way of life.

[98] The statute directs us to have regard to the good of the croft rather than the interests of Mr Cameron. But it is reasonable to have regard to his operations as indicative of the way the croft might typically be managed. Mr Cameron does not live on the croft. He and his daughter keep a number of sheep. It was agreed that they should be treated as one. The day to day management and care of their sheep was undertaken by Mr Cameron’s brother in law, Mr Mackay and his two sons. We heard nothing of the scale of their enterprise. Mr Cameron and his daughter are able to stay on the croft for lengthy periods in the summer. They dealt with management matters such as sales. They arranged for away wintering of hoggs. It was estimated that they contributed the equivalent of 48 man days labour. We heard that to justify a full time shepherd, a flock of over 1000 would be required. It is plain that, in current conditions, the croft would not provide subsistence support for a resident crofter.

[99] It was averred on behalf of Mr Cameron that, if the resumption was authorised, he might expect no more than £25,500 under the compensation and sharing provisions of secs 20 and 21 and it was said that this would not make up for actual detriment to the croft. However, there were no detailed pleadings making an alternative claim for compensation. In the circumstances, it was considered appropriate to hear the case on the merits and leave any financial claim for further procedure. We cannot wholly ignore the fact that he will be entitled to compensation for any loss he can show as likely to arise from loss of use of the woodland. If he can establish a probable economic loss arising from loss of the woodland, he will be entitled to compensation for that as well as his entitlement to share in any value derived from the development potential of the resumed land. However, in considering the purposes of resumption in relation to the adverse impact on the croft we have placed no great weight on the potential compensation as we heard no submissions directed to that matter.

[100] We discuss further below the adverse impact in relation to the overall economic viability of the croft. However, it may be said that we recognise that there is a public interest in maintaining crofting units. If the effect of the resumption was to lead to loss of a resident crofter that would be an important factor pointing against the resumption. But, as matters stand, there is no realistic prospect of the croft supporting a full-time crofter. Whether the croft is operated as part of the agricultural enterprise on the adjacent croft, or as part of a vanishing way of life by a non-resident such as Mr Cameron, will make little difference to matters from the viewpoint of the public interest.

[101] We are not persuaded that the good of the estate is of any major significance in the present context. The Tarbet Trust will not derive any significant benefit from preservation of the Glac Falaichte woodland. It was not suggested that preservation of the woodland, as such, would provide any form of direct economic benefit to them. It is, no doubt, possible that some grant income might be available but their proposed management activities suggests that it would be unlikely that there would be any identifiable profit. It was not suggested that there would be any net income benefit. We shall return, below, to the landlords other proposals for use of part of the woodland for a holiday accommodation. But, looking at the woodland preservation as the identified purpose, we think it can properly be viewed as a purpose which is predominantly in the interests of the wider public. It is the public interest in the woodland which is to be set against the loss of land from the croft, rather than any furthering of the private interests of the Estate.

[102] For completeness, it may be added that it was not suggested that the question of whether or not this particular woodland should remain as part of crofts 1 and 2 Tarbet was a factor of any importance to the crofting community in the locality. On the evidence, the main interest of other crofters lay in the maintenance of the deer fence. We heard that prior to its construction, deer were a serious nuisance the whole length of the Estate, right to the gardens of Mallaig. Maintenance of the deer fence is an important issue. Mr Cameron said he was prepared to undertake maintenance of the fence and there was no challenge to his ability to do this effectively.

Stocking implications

[103] Discussion of the impact on the croft was hampered to a greater or lesser extent by three factors. One was the recognition that, in assessing the good of the croft, we were not limited to consideration of the circumstances of Mr Cameron. This distinction tended to underly the different approaches of Mr McDiarmid, who made an assessment based simply on physical examination of the croft itself, and Mr Sidgwick, who relied on information derived from Mr Cameron’s operations. A second complicating factor was that the croft was run along with the adjacent holding and without any intervening boundary. Day to day care of the flock was undertaken by the neighbouring crofter. A third factor was the risk of confusion as to precisely which piece or pieces of land were being spoken to in different contexts.

[104] Mr Sidgwick’s evidence was largely dependent on material derived from Mr Cameron. There was no attempt to provide direct evidence of Mr Cameron’s stock records or sales. The landlords had attempted to recover his accounts but this was resisted on the basis that we should have regard to the use which might be made of the croft by a competent crofter rather than the particular methods of the present incumbent. We refer to our Note of 23 September 2010 accepting Mr Kermack’s submission to that effect. However, we did order production of stock books and various other records relating, for example, to IACS. Such material as was recovered from Mr Cameron and produced was not satisfactory. It is unnecessary for present purposes to express any formal criticism of the state of his records and we refrain from detailed comment. It is enough to say that the material produced was incomplete and the evidence about it was confused. It became plain that some figures were estimates. In light of the state of the records which were produced we cannot be satisfied that the evidence, given by Mr Sidgwick or Mr Cameron, as to actual figures was wholly reliable when it clearly derived in part from records which were not produced.

[105] However, it may be stressed that it was not suggested that there was any deliberate attempt to conceal or deceive and it is appropriate to consider the figures which Mr Sidgwick used. He told us that the income from the holding was about £14,100 made up from subsidy payments of £11,400 and livestock sales of £2,700. Costs were said to amount to £8,100, including transport costs of £3,700 and wintering of £3,000. This left a profit of about £6,000. He said this left the enterprise on the margins of viability. He said, in chief, that he would not disagree with the suggestion that loss of the resumption area would lead to a flock reduction of 60 to 80 ewes.

[106] It was not entirely clear where that suggestion came from. Mr McMillan’s figure was 40 to 70. He said that he understood that the flock was 330 Blackface ewes. They were hardy animals which largely looked after themselves. On such a holding, they might be gathered as many as four times a year but not necessarily as often. It might just be twice. Accordingly, the sheep were, in his view, “semi-feral”. They were not used to human contact. He found no evidence of overgrazing. He said that in bad weather there might be 40 to 70 sheep sheltering in the wood. This, however, was just his guess. Pressed on the point, he said it might be higher, that figure was just based on his experience. When asked specifically what the effect on the croft would be if the woodland was excluded, he said there would be 40 to 70 sheep less. He would not be surprised if that caused the crofter to “throw in the towel”. However, he was not asked to attempt any calculation to support his figures or conclusion. He accepted that Mr McDiarmid was well regarded although he did not know him personally. However, he stressed that “paper farming” in reliance on published figures took no account of particular circumstances. In cross examination he said that if the sheep were excluded from the wood, they would find shelter. Blackface sheep were good at finding shelter but other shelter areas would become more cramped.

[107] Mr Cameron’s own evidence of the impact of loss of the woodland was not clearly stated. He appeared to say said it could “reduce them by half”. But, he followed that by saying simply that “you could not keep the same number of sheep”. Asked specifically to comment on the assessment of 40 to 70, he said that it all depended on the weather. He did not attempt to distinguish between the numbers which might seek shelter and the impact on reduction of capacity. He spoke positively of the benefit the early bite provided in relation to the quality of lambs produced but expressed this in general terms.

[108] Mr Sidgwick, in his evidence in chief, was asked whether the operation would be viable without the “15 ha” (which plainly was a reference to the whole resumption area). He said this was difficult to answer. It was marginal. The crofter might soldier on “but why should he?”. Resumption would make a difficult situation worse. In his written statement Mr Sidgwick expressed his final conclusion in the following terms: “An essential element of public agency policy is to avoid displacement of established concerns. The resumption of 16 ha to complete the landlords’ “masterplan” by providing sites for two buildings for use over a short season, the production of vegetables for visitors and timber from sustainable resources runs counter to this and other principles.” It is not clear on what he based his view of public policy but in any event it is clear that in this balancing exercise he was considering the whole of the landlords’ proposals and not simply the woodland. His strongly expressed view was not based on the exercise of balancing public policies in relation to the woodland against the detrimental impact on the croft. Implicit was the view that the crofter had a right to keep his land.

[109] The figures given as to total numbers of stock owned by Mr Cameron, or his daughter, are not of critical importance because it is clear that the croft is, in practice, operated along with that of Mr Cameron’s brother in law, Mr Mackay, and his sons. It was not suggested that loss of the resumption area would have any impact on their enterprise or on their ability to care for the Cameron’s remaining stock. Mr Cameron’s sheep are free to run on adjacent land to the north and west of the croft. He said the flocks did mix but they knew their own, which were marked and tagged. They sorted them when gathering.

[110] Mr McDiarmid gave evidence of his attempt to count the stock present on the croft on his visits in July and October 2010. He could not find as many as a hundred on the croft. Our experience on site inspection was much the same. Of course, it can be said that none of these counts was rigorously carried out. A number of animals were counted in the policies of Swordlands Lodge but many more might have been there, out of sight. All we can say positively is that there were no more than half a dozen animals in the woodland at Glac Falaichte at the time of our visit. But it was not a day they would need to seek shelter.

[111] We are satisfied that the croft would be reasonably stocked at a density of about one ewe to four acres. Mr Sidgwick accepted such a figure as typical and, although Mr McDiarmid’s own view was that a lower density was appropriate, he was not prepared to dispute that level. That would mean a flock of 175 ewes, rather than the 370 or so claimed by Mr Cameron. However, the main disputed question was the numbers which would be lost if the landlords resumed all the ground. Mr McDiarmid’s evidence was that the flock, of whatever size, would not be hefted to the croft as a whole. Although Mr Cameron’s evidence tended to suggest that the flock split into two parts, one going West and the other East, we are satisfied that this was over simplistic. Mr McMillan said that most Blackface sheep had their favourite spots and tended to stick to them although some would move over the whole croft. We accept that, on a croft on 700 acres, there would be different areas which different groups of sheep would regard as their territory. Use of the wood for shelter would be limited to animals hefted in the region of the wood. There was other shelter on the croft. Mr McDiarmid did not think more than 60 animals would ever seek shelter in the wood at one time. But even if 60 animals were in the habit of seeking shelter there, that did not mean that there was no other shelter available. Other shelter might not be as good but adequate shelter would be found by some of that number. He accepted that loss of the wood would lead to reduction of the flock but did not think that the flock would need to be reduced by more that 30 ewes. He spoke to the economic consequences of this.

[112] Mr McDiarmid assumed that reduction in numbers would mean a reduction in costs. In relation to any West Highland flock of Blackface sheep, the net return on actual agricultural activites, that is, ignoring subsidy income, was minimal. It would often in fact be a net loss. The bulk of the return came from subsidies which were not now dependent on absolute numbers. In his opinion, the net effect of any reduction of stocking on total income would be marginal

[113] He supported this by reference to calculations based on figures derived from the Farm Management Handbooks published by the Scottish Agricultural College – and sometimes referred to as the “SAC book”. We have experience of this publication which is widely relied on as a good indicative guide to costs and returns. It is based on averages calculated by reference to actual accounts. However, Mr McDiarmid accepted that particular individual enterprises might produce quite different figures. That was particularly true of an enterprise like the croft in question where transport costs played a big part and where the labour costs could not be accurately assessed. The figures produced were of gross margins and they did not include the element of return on labour. The accounting exercise did not allow for work done by Mr Cameron and his daughter nor for work carried out by Mr Mackay and his family. That was part of the “return” which was to be assessed not only in economic terms but by reference to preservation of a way of life.

[114] Using his own assumed stocking density of one ewe to 4.5 acres and using the published figures for typical costs and returns, Mr McDiarmid calculated that there would be a net negative margin of £27 on Mr Cameron’s enterprise as a whole, including the daughter’s sheep. If the total numbers were reduced by 10%, that margin fell to a negative figure of £75. He did not think that the difference would have any impact on the operations. He also produced a similar calculation based on an assumed stocking of 300 ewes. This, he noted, was a stocking rate of one to 2.3 acres which was very much higher than he could accept. The negative margin at that level was £305 and loss of 10% increased that to £325. He accepted that these figures were indicative only. He did not think they were unrealistic although he accepted that this holding had extra fixed costs of transport which would not be reduced proportionately.

[115] Mr Cameron spoke to seeing as many as 100 animals in Glac Falaichte. At that stage he was expressly talking about the woodland at South Tarbet Bay. However, it emerged that there was a possibility of confusion between use of the terms Glen Tarbet, Glen Falaichte and Glac Falaichte. As we have found that the smallholding area should not be authorised for resumption we are satisfied that any confusion is not to the prejudice of Mr Cameron when we now consider only the woodland itself. In other words, if his description of the impact of resumption was based on the whole area sought by the landlords, the impact will inevitably be less if resumption is limited to the woodland itself. At the hearing much of the evidence was expressed explicitly in terms of woodland but on other occasions it appeared that witnesses were discussing the whole proposed resumption area. When considering the conflicting evidence of impact, if the evidence was not entirely clear, we have made the assumption that the parties were talking about the loss of the woodland. It is the most sheltered area.

[116] However, the smallholding area, as we have seen is within the glen. It might well tend to be too windy for vegetables but it would provide shelter for sheep in some storm conditions. It is an area partly covered with bracken and the undergrowth of grass in this area would be expected to provide a good “early bite” before the new season bracken came to dominate. Much of Mr Cameron’s evidence was, quite sensibly, taken by way of leading questions. Having seen the site we are now satisfied that there were times when he was referred to Glac Falaichte but had the whole proposed resumption area in mind. We have little doubt that he was talking about the whole proposed resumption area when he was asked to explain why “Glac Falaichte” was important to him in winter. He said it was where the sheep were fed in the winter. He said they were fed at the east and west ends of the croft. That area was the most accessible; he could get to it easily with his quad bike; and the sheep were provided with feed blocks there. On our site visit we saw three feed-blocks spaced out on the smallholding area. They appeared to have been put in place shortly before our visit as we saw no sign of licking or tramping by animals and no sheep were near in the morning. By the afternoon a couple of dozen sheep were in the vicinity. It can be assumed that the blocks had been put in their usual place. The smallholding area would be the obvious place for delivery of winter feed. It lies immediately to the left of the track. We saw no obvious track access to the woodland area, as such, and we do not think it could possibly be described in terms of “easy access”. Further, there would be no apparent purpose in putting winter feed there rather than at the smallholding area. We are satisfied that this explanation as to the impact of resumption on his winter feeding regime was not limited to the woodland area.

[117] In any event, when considering the impact of loss of the woodland area, we accept Mr McDiarmid’s approach. Whatever the maximum numbers seeking shelter might be, the real question is the impact on the flock if that particular shelter was not available. We are satisfied that the croft provides a variety of areas where shelter could be found by Blackface sheep. But the main impact on flock numbers would come from loss of grazing and the early bite. The impact of the loss of the woodland would not be limited to shelter in storms. The woodland provides sheltered grazing which allows a number of animals a better chance to thrive. Accordingly, we accept that the possibility of providing other means of shelter would not solve the problem. But if the resumption was limited to the woodland area the loss of early sustenance would be less.

[118] We are not persuaded that any useful purpose is to be served by close analysis of the conflicting evidence of Mr Sidgwick and Mr McDiarmid as to the impact on the croft of loss of Glac Falaichte, itself. As we have said, Mr McDiarmid’s evidence was based on his objective assessment of the croft and his assessment of the extent to which flock numbers would have to be reduced because of inability to find shelter and feeding if the resumption took place. Mr Sidgwick on the other hand appeared to base his evidence on Mr Cameron’s actual operations. We understood that Mr Sidgwick had had sight of Mr Cameron’s stock records and accounts. He certainly placed reliance on what he understood from Mr Cameron as to the numbers and activities followed. As noted, we are not satisfied that this was a secure basis. No real purpose is served by attempting to determine specific figures. Mr Sidgwick accepted that it was not possible to be accurate. You would need to wait and see how it turned out, was the way he put it. It is likely that the actual reduction in numbers would lie somewhere between his figure of about 60 and Mr McDiarmid’s assessment of 30.

[119] Whatever, the realistic figure, we are satisfied that, without the woodland, the facility for Mr Cameron to continue his present way of life would remain. He obviously placed a high value on having use of the woodland and we recognise that its loss might lead him, personally, to call it a day. But consideration of whether the numbers involved justified his efforts appears to us to be a matter of emotion rather than a matter of economics. Mr Sidgwick said in terms that he thought economic viability was not the only thing to consider. There was a whole way of life that was worth sustaining. We do not doubt the value of active crofting but we are not persuaded that loss of the wood would play any critical part in that. Mr Cameron will not be able to carry on his present operation for ever. It may be that his daughter will be able to take over. We do not know what emotional attachment she may have to the use of the wood. But we are satisfied that the economic benefit of the croft will not be significantly affected by loss of the wood and in the circumstances of this case, it seems to us that it is primarily an economic assessment which must be made. Our task is to assess the overall reasonableness of the landlords’ purpose.

Implications of the bunkhouse proposal

[120] Although we can apply a test of priority and limit our consideration of the resumption to the purpose of preservation and regeneration of woodland, it must be recognised that, if the landlords are allowed to resume land for one purpose, there is no secure way of ensuring that they cannot eventually use it for another, or at least no way of preventing them using it for an additional purpose. In the present case, it is very clear that if resumption of the Glac Falaichte woodland is allowed, the landlords would wish to use the sites of ruined buildings within that land for construction of a bunk house and ancillary house for a manager. It was contended that use for this purpose would be harmful to the woodland. It is, therefore, necessary to have regard to any adverse implications of such use when considering the reasonableness of the landlords’ proposals for preservation of the woodland. If the bunkhouse proposal was likely to detract from the purpose of preservation of the wood, then the balance between the landlords’ proposals and the adverse impact on the croft might change.

[121] We are not persuaded that construction and use of the buildings will have any adverse impact on the running of the remainder of the croft. Mr McMillan described the sheep as essentially feral and emphasised the risk of disturbance to the sheep if people were using accommodation on the croft. He accepted that the Blackface sheep were not disturbed by walkers. They were used to tourists on the track. Indeed, our experience at the inspection is that they were very tolerant of us as strangers even when walking off the track. We noted that they tended to stand their ground until we were within about 20 metres and then move slowly away. We considered this consistent with the normal behaviour of Blackface sheep. There was little in what we saw to support the view that these sheep were essentially feral in any relevant sense. But, in any event, if the woodland was resumed it would be fenced. The sheep would not be very near the buildings. The movement of people going to or coming from the woodland would not be significantly worse than movement of people on the track. We are not persuaded that it would affect the sheep in any significant way.

[122] We heard a good deal of cross examination contending that the proposed use of the buildings would be harmful to the aim of preservation of the wood. But we are satisfied that any adverse impact would not be of such a scale as to be of any significance. The ruins on which it is proposed to build a bunk house are situated in a clearing. There is one ash tree growing in the centre of the ruins. That tree will be lost but it was not suggested that it was a tree of any particular individual importance. We are satisfied that there is adequate space around the existing ruins for work of construction to proceed without any risk of adverse impact on the remaining woodland. The smaller ruin is closer to existing trees but it is situated in the part described as secondary woodland by Mr Baxter Cooper and no individual trees were identified as being of particular importance. There may well be some interference to root systems but, in terms of scale this will not be of any significance. During construction, access will be required for light machinery but we accept the evidence of Mr Johnston that there will be no need for any heavy machinery. We accept his evidence that the provision of a suitable septic tank and adequate water supply will present no difficulties.

[123] The greater problem is the risk of damage to the woodland from tourists. However, we are not persuaded that a supervised bunk house would be a greater risk than occasional casual or “wild” camping might be. In particular, we are satisfied that with the provision of an organised bunk house without open fires and supervision from a manager there is no real risk of the wood being plundered for fuel. We heard of the importance of dead wood to the low level ecology. It will be easier to educate walkers in the context of a formal bunkhouse than to hope that wild campers would understand the problem. We heard extensive cross examination about the desire of tourists to have barbecues but the risk of this seems to us to be much less likely in a supervised environment than the existing risk from wild campers. The public have a right of access through the wood. We accept Mr McDiarmid’s evidence of his experience that, in practice, the provision of obvious paths means that walkers do not stravaig. We accept the evidence of Mr Baxter Cooper to the effect that the real public importance of the wood lies in its interest to experts. He said that it would not be a focal point for ordinary walkers. Accordingly, we are satisfied that tourists in the area can be expected to use paths provided rather than clambering through the trees and rocky slopes of the woodland.

[124] In short, in assessing the woodland proposal on the assumption that the crofter’s application to buy the croft should have priority over the landlords’ proposals for development of a bunk house, we are satisfied that the resumption proposal is reasonable and that the woodland at Glac Falaichte should be resumed.

Extent of woodland

[125] We have discussed the resumption of woodland by reference to Glac Falaichte, the 10.868 ha. shown cross-hatched on the plan, no.106 of process. However, it is clear that tree growth extends to the north of that along the precipitous east slope of the glen. The intention of the landlords was to restrict the smallholding area to the lower central area of the glen. That would allow natural regeneration of trees to spread north and, in time, join similar regeneration spreading south from North Tarbet. We are satisfied that this is a reasonable purpose. Mr McLellan laid considerable weight on the aim of creating linkages to improve biodiversity. The area in the north east corner of the proposed area would be of critical importance for that purpose whether the central area was used for sheep or as a smallholding. This is a well recognised benefit spoken to in publications from the Scottish Government and Scottish Natural Heritage. The steep part is not accessible to sheep and the lower section has not been said to be of any particular importance for shelter or otherwise. Our examination of it did not lead us to conclude that loss of it would have any ascertainable impact on the croft.

[126] If Glac Falaichte is to be resumed we have no doubt that this area to the north of it should also be included. Allowing resumption of this area will have a minor additional benefit for both the croft and estate in that it will leave the whole deer fence in control of the landlords and free the crofter from any responsibility for maintenance of the fence. We heard that proper maintenance of the fence, where it was a boundary of the croft, would take a half day inspection twice a year. The fence is high on a steep slope and would not be readily accessible to Mr Cameron himself. He might require to hire someone to do this work and, of course, would have to bear the cost of any necessary repair. The detail of this is not relevant to our decision. But it may be added that we understood the fence to have been provided for the benefit of Nevis Estates and understand that it may not be a shared march fence.

[127] We have shown the area in question by an indicative line on the plan 107 attached to this order. That line is derived from the plan of the smallholding shown as Appendix D of the Masterplan, production 25. However, as we understand it, that plan does not show the boundary in its correct position - as shown in the revised plan production 106. We would be prepared to revise the indicative line in light of further representations for example to accommodate any relevant physical features.

Assesment of purposes without regard to priority

[128] We have assessed the woodland and looked at the bunkhouse proposals purely in the context of the purpose of preserving the woodland. However, it is appropriate for completeness to say that if we had been considering the landlords’ whole proposals as they stood at the date of the hearing, we would have considered the bunk house proposal as adding weight on the landlords’ side. We have no difficulty in accepting that there is a growing market for tourist facilities in comparatively remote areas. We are satisfied that it is in the general public interest that such facilities be provided. They are a direct benefit to the members of the public who use them for recreation and the presence of such people is an indirect benefit to local businesses as consumers of local services. There will be a benefit to local tradesmen in the construction and maintenance of the buildings and increased direct employment for people servicing the accommodation.

[129] The landlords are proprietors of North Tarbet. As shown in the Masterplan and described by Mr Aitchison the proposal for construction of a bunkhouse is related to proposals for development of the old church building at North Tarbet. The building has been refurbished and is presently used on a very informal basis to provide bunkhouse accommodation. We heard that in season it might have about a dozen visitors a month. It is not advertised. As part of a scheme for regeneration of North Tarbet it is proposed that the church be converted to use as a café and gift shop. It is conveniently situated for the ferry service which calls daily in summer. A number of walkers make the round trip walking from Bracora and returning to Mallaig by sea. There are several holiday cottages in the area. The present catchment for a shop or café is small but such facilities do attract their own trade. We accept the plan as realistic. When looking for an alternative site for a bunkhouse, the landlords selected the ruins in Glac Falaichte as the most suitable. We heard cross-examination directed at the proposition that a site might have been found at North Tarbet but we have no reason to doubt that the proposed site is realistic and an appropriate one for the purpose. It is well sited on a southern slope. It may lead to the development of a boat connection on Loch Morar or to the development of fishings on that Loch. But, in any event, in walkers’ terms, it is not far from the ferry link at North Tarbet and not far from the proposed café.

[130] We also accept that such a development has potential advantages for croft 1 and 2. Although Mr Cameron has been forced to live in Fort William we heard that the croft house had been modernised. It could provide permanent accommodation. The aim of keeping crofting viable would be strengthened by a full time crofting resident. A permanent resident on the croft would derive a range of minor benefits from developments such as that proposed by the landlords. If part-time or seasonal workers were required in connection with the servicing of tourist accommodation, such a resident might be well placed to provide this. In the exercise of trying to attract residents to comparatively remote areas, every little helps. The possibility of some part time or seasonal work; the facility of a café within tolerable walking distance; and the probability of a modest increase in transport facilities are all modest but positive factors.

[131] It might be added that the possibility of obtaining assistance from neighbours is another positive element. Mr McDiarmid spoke of the need for temporary, part-time or seasonal work in remote areas. Farming activities often give rise to a need for specific assistance from friends or neighbours. Anyone living on the croft would be likely to see the proximity of other residents as an advantage, at least when, as here, they would be out of sight and unlikely to encroach on domestic life. Although we do not write it off, the idea of a resident crofter being able to derive positive economic benefit from providing other services to tourists is, we think, too speculative to weigh in the balance.

[132] In summary, we see no downside from the bunkhouse scheme from the viewpoint of the croft and think there are some advantages.

Conclusion

[133] We are satisfied that we should authorise resumption of the whole woodland area shown cross hatched in the plan attached to the application, no.106 of process, and authorise resumption of an area at the pier or jetty to be more specifically defined in light of further plans or submissions, together with a strip of, say, six metres wide centered on the track. We should refuse to authorise resumption of the remainder of the area bounded in red except for a section at the North East corner which will be the corridor linking Glac Falaichte with the woodlands at North Tarbet. That area can be defined by reference to the plan, production 106, and the east edge of the proposed smallholding as shown on the plan attached to this note, which may be referred to as production 107. We shall adopt that line unless we hear submissions justifying any minor variation.

[134] In proceeding to hear the present applications before the other two challenging the status of the holding or parts of it, we recognised that it would be necessary to give the landlords an opportunity to consider their position further before we pronounce any formal order. We hope that the above makes clear what we are minded to allow. Various conditions were mentioned in course of the hearing as being accepted by the landlords and it may be that most matters will now be capable of being resolved by agreement. The landlords reserved their right to have a current rent fixed for the area to be purchased. There may be little dispute about this. However, we have simply put the case out for a hearing as to further procedure. Once parties have had a chance to consider matters further we shall invite written intimation of any matters which they seek to have resolved by the Court.

For the landlords: Sir Crispin Agnew of Lochnaw QC; Macphee & Partners, Solicitors, Fort William

For the crofter: Turcan Connell, Solicitors, Edinburgh