Decision of the Scottish Land Court

Highlands and Islands Airports Limited (Applicants) v Shareholders in Melbost and Branahuie Common Grazings (Respondent)

Case reference SLC/153/17
before
Lord Minginish, Chairman, and Tom Campbell
6 February 2019

INTRODUCTION

[1] This is a dispute about whether an area of land at Stornoway Airport, Isle of Lewis, (“the disputed area”) is still subject to crofting tenure. It hinges on events during the Second World War when the government took possession of the then existing civilian airfield together with surrounding land as part of the war effort.

[2] The applicants are Highlands and Islands Airports Limited, the present heritable proprietors of the airport, including the disputed area. The application is for declarator that three parcels of ground, extending in all to 219.140 ha, comprising the applicants’ whole subjects at Stornoway Airport and including the whole land on which the present airport is built, are “not subject to any crofting rights by any persons”. The applicants want to dispone part of their land, including part of the disputed area, to a company called Calmax Construction Limited, for a residential development, which is why the matter has become an issue now.

[3] The present respondents are the committee members of the Grazings Committee for the combined common grazings of the townships of Melbost and Branahuie. Originally there were five of them but Mr Willie MacFarlane, one of the original five, has withdrawn. We understand them to represent all of the crofters and graziers in those two townships. They have a counterclaim that the disputed area remains subject to crofting tenure and will remain so “until such tenure is terminated in accordance with the Crofters (Scotland) Act 1993”.

[4] The application was also intimated to The Stornoway Trust, as predecessors in title of the applicants and as current owners of the larger part of said common grazings (outwith the airport perimeter), though not the disputed area. They lodged answers which, among other things, confirm that they have no records showing the disputed area to have been resumed from crofting, but have taken no further part in the case. The graziers of Steinish Common Grazings, which lie to the west of the disputed area, would also have an interest in the matter were it not for the fact that the status of the part of their grazings now owned and occupied by the applicants is not in doubt: it was resumed in terms of the resumption orders referred to below.

[5] Both parties had preliminary pleas and we heard a debate on those at Stornoway Sheriff Court on Thursday 6 December 2018, when the applicants were represented by Mr Robert Sutherland, advocate, and the respondents by Mr Lewis Kermack, a former solicitor, appearing, unremunerated, with leave of the Court in terms of Rule 100(3)(b) of our Rules. Although this was a diet of debate, parties agreed that there was no need for proof and that the case could be disposed of on the basis of their pleadings and submissions at debate.

Factual background

[6] Before we summarise parties’ submissions it is convenient to set out what appear to be agreed facts:

i. All of the land with which the application is concerned was subject to the Small Landholders Act 1886 to 1931 in the 1930s and was then owned by the Stornoway Trust.

ii. At that time the idea of creating a civil aerodrome at Stornoway emerged and for that purpose a total area of 140 acres was resumed from Steinish Common Grazings by two resumption orders of this Court, dated 1934 and 1936.

iii. In or around 1940, with the Second World War under way, the Secretary of State for Air (“the Secretary of State”) took physical occupation of the embryonic airport (which then comprised little more than a grass landing strip) and some surrounding land, including part of Melbost Farm, part of Stornoway Golf Course and various parcels of land forming parts of the townships of Melbost, Branahuie, Steinish and Sandwick North Street, all extending to 797.523 acres, to which title was taken by way of disposition by the Trustees of the Stornoway Trust to the said Secretary of State dated 30 August 1946 and recorded in the General Register of Sasines for the County of Ross and Cromarty on 25 November 1947 but with a date of entry of Whitsunday 1941.

iv. The crofting interests affected were (i) grazing rights held in common grazings of the township of Melbost (Area 1 on Plan 1, attached), (ii) land forming part of the inbye land of 11 of the Melbost crofts (Area 2 on said plan), and (iii) grazing rights held by shareholders in the combined common grazing of Melbost and Branahuie (Area 3 on said plan).

v. The Air Ministry greatly expanded the aerodrome to meet the needs of the war effort and an RAF base was set up there.

vi. Between 3 August and 31 December 1945, with the war now over, this Court issued its decisions in four Minutes of Agreement and Reference referred to it by (a) Stornoway Trust and the Secretary of State (RN 5930), (b) Landholders (the correct legal term for crofters at that time) in a number of townships including Melbost and Branahuie and the Secretary of State (RN 5931), (c) Mr Ebenezer Mackenzie, tenant of Melbost Farm, and the Secretary of State (RN 5932) and (d) Trustees of Stornoway Golf Course and the Secretary of State. Whatever other significance is to be attached to these decisions (a matter to which we return below) and although the wording of the various orders varies, they were, on the face of them at least, the products of four references made to the Court for the assessment by the Court of compensation payable under the Acquisition of Land (Assessment of Compensation) Act 1919 (“the 1919 Act”).

vii. Of these four references the one with which we are most directly concerned is the one involving the landholders (or crofters) and it is pertinent to note a number of things about it, viz;

(a) In terms of the Minute of Agreement and Reference itself (production 5) the reference to the Court was “as the Arbitrator agreed on between the parties in terms of Section 8(1) of [the 1919 Act]”.

(b) The Court issued its proposed findings on 14 September 1945. In the written report (1945 SLCR App 128) the preamble to that order reads “Under a Minute of Agreement and Reference the Joint Applicants asked the Land Court, in terms of Section 8 of the [1919 Act], to assess compensation to the tenants whose holdings were affected by the compulsory acquisition of land by the Air Ministry”.

(c) In terms of the formal order itself, the Court gave notice that it proposed to fix “the reductions of rent to be allowed to the Claimants … and the compensation payable to them under [the 1919 Act] in respect of interference with their respective interests in the land specified in the said Minute of Agreement and Reference”.

(d) As is the case with all four references, the decision makes no mention of the powers under which the compulsory acquisition referred to above had taken place.

(e) Nor does the decision make any reference to any land or landholders’ rights being resumed in terms of sec 2 of the Crofters Holdings (Scotland) Act 1886 nor being taken out of crofting by any other mechanism.

(f) Reduction of rent was awarded in each case (save for one owner-occupier) without any restriction as to the period of time for which the reduced rent was to apply.

(g) As well as reducing the rents, the Court assessed compensation for loss of profits as a landholder and for a variety of other things, such as money spent on grass seed, loss of manurial value and the impact of the Air Ministry’s involvement on fixed equipment, including “redundant buildings”.

(h) In a short explanatory note appended to the order, the Court said, with reference to the compensation for redundant buildings, that it was “our measure of the sum required to compensate the holder in respect of the lower compensatable value of his buildings consequent on the diminished value of his holding due to the compulsory acquisition of part of it by the Air Ministry”.

(i) The Court issued its final order, adhering to its proposed findings, on 31 December 1945.

viii. With the coming of peace, RAF Stornoway was disbanded in or around 1945 or early 1946 and the aerodrome returned to civilian use. Most of the land acquired in 1941/46, including all of the land subject to this application, was sold by the Secretary of State for Defence to the applicants in 2001.

ix. So far as usage for crofting purposes since 1941 is concerned, what the respondents’ aver is (para 4 of the Answers):

“[W]hile the airside fences constructed by the Applicants and aircraft safety prevents the shareholders making use of the grazings on the airside parts, the second of the Named Respondents makes use of the Struiper [an area of ground adjacent to the disputed area at its northwestern corner] for grazing cattle and the fourth of the Named Respondents keeps his tups amongst the redundant RAF buildings at the junction with the main road [i.e. on part of the disputed area]. The Third Respondent … has grazed his ram [on the part of the disputed area intended to be disponed to Calmax Construction Ltd] for the last 35 years without seeking, or feeling the need for, permission, as his grandfather had before him. In addition, until the late 1960s, when a larger and modern fank was built for use by the shareholders, elsewhere, the shareholders made use of a fank within the vicinity of the RAF buildings and the land subject to this application, and another fank with the area known as the Struiper … Sheep did in fact graze the airfield for many years after the war.”

Legislation

The Crofters Holdings (Scotland) Act 1886

“1. A crofter shall not be removed except for breach of statutory conditions

A crofter shall not be removed from the holding of which he is tenant except in consequence of the breach of one or more of the conditions following (in this Act referred to as statutory conditions), but he shall have no power to assign his tenancy.” [The conditions listed are not relevant to this case.]

Small Landholders (Scotland) Act 1911

“1. Crofters Acts applied throughout Scotland

“From and after the commencement of this Act, and subject to the provisions thereof, the Crofters Acts shall be read and construed as if the expression “landholder” were substituted for the expression “crofter” occurring therein, and shall have effect throughout Scotland.”

Acquisition of Land (Assessment of Compensation) Act 1919

“1. Tribunal for assessing compensation in respect of land compulsorily acquired for public purposes

(1) Where by or under any statute (whether passed before or after the passing of this Act) land is authorised to be acquired compulsorily by any Government Department or any local or public authority, any question of disputed compensation, and, where any part of the land to be acquired is subject to a lease which comprises land not acquired, any questions as to the apportionment of the rent payable under the lease, shall be referred to and determined by the arbitration of such one of a panel of official arbitrators to be appointed under this section as may be selected in accordance with rules made by the Reference Committee under this section.

8. Power to refer to Commissioners of Inland Revenue or to agreed arbitrator

(2) Nothing in this act shall prevent, if the parties so agree, the reference of any question as to disputed compensation or apportionment of rent to the Commissioners of Inland Revenue or to an arbitrator agreed on between the parties.”

Small Landholders and Agricultural Holdings (Scotland) Act 1931

“25. Avoidance of agreement inconsistent with the Landholders Acts

Any contract or agreement by a landholder by virtue of which he is deprived of any right conferred on him by any provision of the Landholders Acts shall to that extent be void unless the contract or agreement is approved by the Land Court.”

Cases

Crofters Commission v Arran Ltd 1996 SLCR 103
Crofters Commission Reference 2012 SLCR 159
Highlands & Islands Oil and Gas Company Ltd v
Crofters sharing in the Bourbloch Common Grazings 1995 SLCR 110
Macdonald v Prentice’s Testamentary Trustees 1993 SLCR 97
Shetland Islands Council v Jamieson & Ors 1993 SLCR 97
Smith v Murray 1990 SLCR 90
Whyte v Garden’s Trustees 1925 SLCR 99

Submissions

(i) for the applicants

[7] Mr Sutherland’s submissions were tightly focussed on what had happened in the 1940s and not with anything that had happened before or since.

[8] He presented two arguments. His primary argument was that what had happened in 1941 had been a form of compulsory purchase as a result of which the rights of crofters under the Small Landholders Acts had flown off. His secondary argument was that if, contrary to his primary argument, the land had not been acquired compulsorily, the landholders had voluntarily relinquished their rights at that time, a process which was to be taken as having the consent of the Land Court given the Court’s role in terms of the Minutes of Agreement and Reference referred to above.

[9] The applicants accepted that sec 1 of the Crofters Holdings (Scotland) Act 1886 granted security of tenure to crofters. Section 2 contained a power of resumption for certain reasonable purposes but that was not being relied upon. The applicants themselves had found no evidence of resumption and it was not being averred that resumption of the disputed area had ever taken place. Instead what was being averred, in terms of the primary argument, was the loss of rights due to compulsory purchase.

[10] It had not, however, proved possible to identify which statutory provision had been used when the land was acquired. In terms of the applicants’ pleadings, it was averred that the land had been requisitioned by the Secretary of State under the Emergency Powers (Defence) Acts 1939 and 1940 and the Defence Regulations 1939. However, Mr Sutherland had subsequently become aware of other powers of requisition available to the Ministry, so it was no longer possible to confidently aver that the acquisition had been under the Emergency Powers Acts of 1939 and 1940.

[11] The 1919 Act itself contained no powers of acquisition, so that was not the legislative basis for what had happened. But it was a reasonable inference that some sort of compulsory acquisition had taken place. There were express references to compulsory acquisition in the Minutes of Agreement and Reference. There was no evidence of the sort of negotiation which might be expected to have preceded a sale to the Secretary of State by private bargain. And, even if there had been no formal process, explicitly relying on and referring to particular statutory powers, it was well known to all concerned at the time that such powers existed and the acquisition of the land had taken place, if not in express and explicit reliance on specific powers, then in the shadow of the existence of such powers. No one at the time would have wanted to frustrate the war effort by insisting on formalities. Something done under the shadow of such powers was to be taken as being done under these powers. So, whatever had actually happened, the result had been a compulsory acquisition, hence the assessment of compensation on that basis under the 1919 Act, which was available only when land had been compulsorily acquired.

[12] The heads of loss for which the Court had fixed compensation were akin to those for compensation for resumption. Nothing in the way the awards were framed indicated that there was to be any temporal limitation on how long the land was going to be held. In 1945 the war was over and one would have thought the Court would have calculated, for example, the loss of rental income by Stornoway Trust by reference to a fixed period, if the loss of rights was only to be temporary.

[13] If the intention had been to hand back the common grazings with the coming of peace, one would have expected mention of that to be made in the Minutes of Agreement and Reference and one would have expected the crofters to have been asking for it back but they hadn’t done so, not in 1945 nor subsequently. The possibility that the land was still subject to crofting had arisen for the first time only during the 1990s.

[14] In the case of the Steinish grazings the landholders’ rights had been extinguished by resumption when the civilian aerodrome had been created, so it would be consistent with that for the additional land required for the RAF station also to be removed from that legislative regime.

[15] The exercise of compulsory powers meant that the rights of the landholders disappeared; Highlands & Islands Oil and Gas Company Ltd v Crofters sharing in the Bourbloch Common Grazings. There was no need for any other procedure.

[16] Turning to his secondary argument, until the enactment of sec 25 of the Small Landholders and Agricultural Holdings (Scotland) 1931 (“the 1931 Act”) it had been possible for landholders to abandon their statutory rights but after that it could only be done with the approval of the Land Court.

[17] There was no suggestion that the sec 25 procedure (of applying to the Court for approval) had actually been carried out in this case but the involvement of the Court in assessing compensation in terms of the Minutes of Agreement and Reference was tantamount to the granting of approval and the requirements of sec 25 were therefore satisfied.

[18] For those reasons the respondents’ pleas-in-law should be repelled and the applicants’ sustained.

(ii) for the respondents

[19] Mr Kermack first attacked the following averments from para 4 of the Statement of Fact:

“Since in or about Whitsunday 1941, the land now forming Stornoway Airport has not been subject to any rights under either the Small Landholders (Scotland) Acts or the Crofting (Scotland) Acts on the part of any small landholders or crofters. Any rights that existed prior to the creation of the RAF airfield were abandoned in or about Whitsunday 1941 by the small landholders who had the benefit of those rights, or renounced by the voluntary agreement of those small landholders. In all the foregoing circumstances the tenancy and common grazing rights over the land now forming Stornoway Airport were extinguished at that time.”

[20] These averments were lacking in specification because they identified no agreements by the predecessor crofters or shareholders renouncing their rights. Nor did they include any averment of abandonment. They were also irrelevant because crofting tenure could not be terminated or extinguished by abandonment or renunciation; Whyte v Garden’s Trustees, Smith v Murray. In any event renunciation was prohibited by sec 25 of the 1931 Act.

[21] In order to terminate crofting tenure there had to be a resumption order or a decrofting direction (Macdonald v Prentice’s Testamentary Trustees at page 120; Shetland Islands Council v Jamieson & Ors) and no such order was averred here. The applicants had also failed to aver any other mechanism by which the land had been removed from crofting.

[22] In relation to Mr Sutherland’s primary argument, although the Emergency Powers (Defence) Acts of 1939 and 1940 were referred to in the pleadings it was clear that the applicants did not actually know whether these Acts had been relied on at the time and there was no mention of them in the four Land Court processes. On the contrary, all the indications, from the terms of the Minutes of Agreement and Reference and the form of the 1946 disposition, were that it was a sale by agreement. Mr Kermack had another explanation as to how things might have been done without the need for compulsory acquisition but it has no bearing on the relevancy of the applicants’ pleadings and forms no part of his own pleadings, so we take no account of it here.

[23] In relation to the applicants’ reliance on the four Minutes of Agreement and Reference, it was revealing that the other three parties (apart from the landholders and the Air Ministry) were the landowner, a tenant farmer and a golf club, none of whom held their land on crofting tenure. The Minute of Agreement and Reference procedure was therefore not a mechanism specifically directed at taking land out of landholding tenure and the jurisdiction the Court was exercising in assessing these claim was not its crofting jurisdiction. In fact these were not court processes, in the sense of contested litigation involving one of the Court’s statutory jurisdictions, at all, but voluntary joint references to the Court as an arbiter chosen by parties under sec 8 of the 1919 Act.

[24] It was also important to note that what the Court referred to consistently in the landholders’ claim was “interference with their respective rights” (emphasis added). “Interference with” did not connote extinction of the rights.

[25] The applicants not having identified a mechanism whereby the crofting rights held by the landholders might have been extinguished, the Court should find, in terms of the respondents’ counterclaim, that they continued to exist, even if only “for aught yet seen”.

Discussion

[26] As we have said, although this was a debate on parties’ preliminary pleas, it was accepted that proof would add nothing to parties’ positions and we are invited to dispose of the case on the basis of the pleadings together with the productions referred to.

[27] We direct our attention first to the applicants’ principal argument, which was that the “interference” with the landholders’ interests which had taken place in 1941 had been by way of compulsory acquisition under, or in the shadow of, one or other of the several pieces of legislation containing such powers then in force.

[28] The high point of the applicants’ pleadings on this point is the sentence in para 3 of the Statement of Fact which says “The acquisition and extension of the aerodrome was over various parcels of land which the Applicants understand had been requisitioned by the Secretary of State under the Emergency Powers (Defence) Acts 1939 and 1940 and the Defence Regulations 1939”. Even if that is taken as an offer to prove that acquisition was under these powers, it was retreated from at debate when Mr Sutherland very properly advised that he was no longer able to advance that proposition in light, as we understood him, of becoming aware of other powers which may have been deployed. So the position has become that the applicants invite us to hold, that, as a matter of necessary inference, the acquisition was made under compulsory powers.

[29] The exercise then becomes one of looking at the various adminicles of evidence pled in support of that. These all have to do with the Minutes of Agreement and Reference. The applicants’ pleadings, of themselves, do not list the various aspects of those Minutes which are being relied upon as showing that they proceeded on the basis of compulsory acquisition but Mr Sutherland elaborated on that in his submissions, while Mr Kermack drew attention to aspects which seemed to point the other way.

[30] Having assessed those submissions and the productions referred to, it seems to us unlikely that any formal process of compulsory acquisition was undergone. We have come to that conclusion for the following reasons:

a) The absence of any documentation constituting or representing such a process.

b) The absence of reference to any particular statutory power in the documents which have been produced.

c) The terms of the disposition in favour of the Air Ministry, making no reference to statutory powers, and the form of that disposition, being an ordinary disposition of the kind used in a consensual transaction, not the form prescribed in Schedule A of the Lands Clauses Consolidation (Scotland) Act 1845.

d) The fact that, consistently with the form of the disposition, the narrative in the Minute of Agreement and Reference dealing with compensation to Stornoway Trust in respect of the acquisition of the land narrates that “The First parties [being the Stornoway Trust Trustees] agree that the Stornoway Trustees shall sell and the Minister agrees to purchase the said subjects, with entry at a date to be fixed by the Scottish Land Court as the term of entry; And the parties hereto hereby submit and refer to the Scottish Land Court, as sole Arbitrator mutually agreed upon between them, to fix the price to be paid to the Stornoway Trustees in terms of Section 8 of [the 1919 Act] and, failing agreement on the terms and conditions of the Disposition to follow hereon, to adjust and determine such terms and conditions …”.

e) The use of the term “interference with their holdings”, as it is put in the relevant Minute of Reference, and ”interference with their respective interests in the land”, as it is put in the Court’s order, suggests something short of the complete extinction of rights which, parties are agreed, would be the result of compulsory acquisition.

[31] The fact that formal compulsory purchase procedure does not seem to have been resorted to does not mean that there was no element of compulsion in what happened. Mr Sutherland was, no doubt, correct in his submission that what was done was done in the knowledge of the existence of such powers. Also it is understandable that parties would not want to frustrate the war effort by insisting on formalities. All concerned would have known that if things weren’t done voluntarily they could be done compulsorily but, equally, they would, we imagine, have been happy to go along with what was such an obvious requirement of the war effort as possession of an airfield. After all, they knew they were going to receive fair compensation for their loss.

[32] What we have difficulty with, however, is in ascribing to what was done without resort to the statutory powers the consequences which would follow had these powers been used. We see a certain logic to it, certainly, but we do not see a legal basis for it. Either those powers were used or they were not and if they weren’t the consequences which would have followed from their use simply don’t come into play. We are therefore unable to sustain Mr Sutherland’s argument.

[33] This brings us to Mr Sutherland’s secondary argument: that the landholders agreed to the termination of their interests in the land in return for payment of compensation in terms of an agreement which had been approved by the Land Court.

[34] This argument is entirely based on the Minute or Agreement and Reference between the landholders and the Air Ministry. We are asked to hold that it represents an agreement by the landholders to give up their interest in the land acquired by the Air Ministry and that the Land Court’s willingness to fix compensation represents approval of that agreement for the purposes of sec 25 of the 1931 Act.

[35] The agreement being referred to in the relevant Minute of Agreement is simply an agreement “to refer to the Scottish Land Court, as sole Arbitrator foresaid, to fix and determine the compensation to be paid to each of the Landholders” but it is worth quoting the whole preamble to the reference to give context:

“WHEREAS certain works have been carried out, or are in course of being carried out by the Air Ministry on land in Stornoway, in the County of Ross, the property of the Stornoway Trustees … which land is delineated and shown in various colours and is bordered with a red line on the plan annexed and signed as relative hereto, on various portions of which land there are small holdings occupied by the landholders some of whom in addition to being occupiers of small holdings have right of grazing on lands not being parts of their holdings and some of whom have rights of grazing only, with which small holdings and grazing rights the Air Ministry has interfered: AND WHEREAS it has been arranged that the compensation payable to each of the landholders in respect of interference with their respective holdings and/or grazing rights shall be referred to and fixed by the Scottish Land Court, as Arbitrator agreed on between the parties in terms of Section 8(1) of the Acquisition of Land (Assessment of Compensation) Act, 1919: THEREFORE the parties have agreed and do hereby agree as follows:”

[36] Although the parties and the Court must have been clear as to what was being compensated for in this process, nowhere is that spelled out: not in the Minute and not in the Court’s decision. Accordingly, if we are being invited to accept that this is an agreement to which the Land Court gave approval, it remains very hard to know what, exactly, the Court was approving. Was it in respect of “interference” with grazings and use of inbye land for the duration of hostilities or was it for permanent loss of certain rights? As we have already said, the word “interference” itself suggests something short of permanent deprivation.

[37] Looking to the heads of compensation makes things little clearer. Everyone got a reduction of rent, without reference to any limit of time, so we assume it is a reduction of rent going forward and not just for the war years. That suggests permanent loss of something, whether some inbye land, grazing rights or both. Each was also awarded something for “Loss of Profits” and in a bid to understand what loss was being compensated for and how it was computed we retrieved from the National Archives the processes for the four referrals. Only the Minutes themselves and the Court’s decision had been produced by parties but the processes included the claims lodged by the various claimants.

[38] We thought it might be of significance that the claims submitted on behalf of the landholders include what appear to be future loss claims calculated on the basis of “14 years’ purchase” so we gave parties the opportunity of commenting on these.

[39] The submission for the applicants was that this was a capitalised claim to compensate for the permanent loss of the rights in question. It was consistent with the way compensation for future loss would be calculated in a resumption. Although the Court had not applied a multiplier of 14 in its awards (the awards don’t mention a multiplier and don’t disclose how loss of profits was calculated), it appeared to have accepted the principle that loss should be compensated on the basis of a capitalised sum. The fact that the Court had evidently not used the same multiplier as the landholders’ agents did not mean the awards it was making were not for permanent future loss.

[40] The submission for the respondents was that little could be made of the new information. The sums claimed were not matched by the sums awarded. In no case had the Court used a multiplier of 14 or any other multiplier. Quoting from Mr Kermack’s submission the Court “has decided not to make any finding in respect of the claim for 14 years purchase and has decided not to give any reasoning as to why they did not include any claim for 14 years purchase”. It was simply not possible to know what had become of the claims based on a 14 year multiplier, whether they had been withdrawn or not awarded for some other reason.

[41] Reviewing matters in the light of these submissions, while it is certainly the case that matters are nowhere near as clear as one would like, it seems to us that what was happening when these awards were made was that the landholders were being compensated for future loss. We say that because (a) nowhere is it said that the loss is confined to the war years, (b) an unrestricted (in terms of duration) reduction in rent obviously looks to the future and (c) the claims made by the landholders on a capitalised basis, although not accepted in full by the Court, must have been for future loss. It seems to us, therefore, that the landholders were being compensated for permanent loss, if not of their rights, then of their ability to exercise these rights over the disputed area.

[42] But that is not an end of the matter. There is the question whether the fact of the Minute of Agreement and Reference having been dealt with by the Court amounts to approval of the agreements arrived at between the landholders and the Air Ministry for the purposes of sec 25 of the 1931 Act.

[43] Manifestly, that is not what the Court was asked to do in 1945. We have already quoted the terms of reference from the preamble to the Minute. The Court was being asked to accept office as arbitrator of choice of the parties under sec 8 of the 1919 Act. There is not a word about any of the Court’s statutory jurisdictions being invoked. Nevertheless the agreement between parties was brought to the notice of the Court by the reference and we are asked to take the fact that the Court was willing to deal with it, and did deal with it, as tacit approval of what had been agreed.

[44] In Macdonald v Prentice’s Testamentary Trustees the applicant offered, in the course of a hearing, to give up her grazing rights over certain parts of the subjects with which the case (an application for declarator that certain land was a common grazing) was concerned but the Court said:

“In terms of Section 3(4) of the 1955 Act [which was substantially the same as sec 25 of the 1931 Act] a crofter cannot by agreement, deprive himself of any right conferred on him by any provision of that Act. Any such agreement is void unless approved by the Land Court. The grazing right which is part of the croft is a right conferred on Miss Macdonald by the 1955 Act. She cannot therefore agree to give it away without the Court’s approval. So far as [certain other land] is concerned, she has been prepared to relinquish her right of grazing, no doubt for good reason. She has, in effect, agreed to her rights being diminished to that extent but she has not sought the approval of the Court to such an agreement. We have not been asked for our approval in the present application and in these circumstances, we are not in a position to grant our approval to an agreement for the removal of those pieces of ground from the area of the grazings without the issue having been properly focussed by argument in an application to which all interested parties have been called.”

[45] Although it is almost inconceivable that the Court would have refused approval to the agreement before it, particularly given its purpose, the fact remains that the approval of the Court was neither sought nor granted. In that situation we are unable to hold that the Minute of Agreement process can be regarded as tacit approval of the agreement.

[46] There is, in any event, another difficulty in the way of this approach. Any agreement for the surrender of the crofters’ rights would have to be with the Stornoway Trust because they were the landlords when the agreement with the Air Ministry was entered into and, so far as the rights of graziers in the common grazings are concerned, they remained the landlords even after the Air Ministry had taken title to the land in 1947. That is because grazing rights are not held in tenancy from the owner of the common grazings but are pertinents of the crofts to which they attach and it is the person who is entitled to receive the rents and profits, or to take possession, of the crofts who is the landlord; see Crofters Commission v Arran Ltd & Ors at pages 123-137, Crofters Commission Reference at paras [49] to [57] and sec 61 of the Crofters (Scotland) Act 1993. Acquisition of title to the part of the disputed area which was part of the shared common grazings of Melbost and Branahuie did not make the Air Ministry the landlords of the graziers, whose landlords remained the Stornoway Trust. So far as the Melbost crofters, part of whose crofts were taken by the Air Ministry, are concerned, there is a similar problem because the agreement with the Air Ministry preceded the Ministry taking title to the land. Agreements made with a party who was not the landlord at the time could not be effective in depriving the crofters of land or pertinential rights which were held from the landlord as part or as pertinents of their crofts.

Decision

[47] The pleas-in-law for the respondents are as follows:

“1. There being no evidence of an event instructing the extinction of crofting tenure or common grazing rights over the application site, the declarator sought by the Applicant should be refused.

2. In the absence of evidence of extinction of the crofting tenure and grazing rights held by shareholders in the Melbost and Branahuie common grazings over the area shown on the plan produced herewith, the Land Court should declare that those rights subsist until such time as terminated in accordance with [the] Crofters (Scotland) Act 1993.

3. The Applicants’ averments being irrelevant, et separatism, lacking in specification, the craves for the Applicants should be dismissed.”

[48] We sustain these pleas-in-law in so far as they relate to the disputed area (not the application site). In the case of plea-in-law 2 that is subject to various qualifications. Firstly, it refers only to the rights held in the Melbost and Branahuie Common Grazings, whereas, presumably, the intention was that, conform to the respondents’ counterclaim, it should refer to the whole of the disputed area. Secondly, we adopt Mr Kermack’s suggestion that our finding might be on a “for aught yet seen” basis. That leaves the door open for the applicants to come back if, for example, evidence of the actual use of particular compulsory acquisition powers is found in time to come. The same result could be achieved by applying for a re-hearing in terms of Rule 74 of our Rules but that provision is qualified by the requirement that the information “could not have been discovered before [the time at which the order in question was made] by that party by exercise of due diligence”. Making use of the “for aught yet seen” formula avoids the need for argument as to whether the information could have been found by the exercise of due diligence before our order was made. Thirdly, it is inappropriate to declare that the disputed area will remain under crofting tenure until such tenure is terminated in accordance with the 1993 Act. That is partly because of the “for aught yet seen” basis on which our order has been made but mainly because other means of removing land from crofting might be provided in future legislation.

[49] The applicants also have three pleas-in-law, viz:

“1. The Respondents’ averments in answer being irrelevant et separatism lacking in specification, the order applied for should be granted de plano.

2. The Respondents’ averments in answer in so far as material being unfounded in fact, the Answers should be repelled and decree granted as applied for.

3. The common grazing rights over the application site having been extinguished, decree should be granted as craved.”

We have repelled these in so far as they relate to the disputed area (rather than the whole application site).

[50] The result is, therefore, that, notwithstanding that possession of the land in question was acquired by the Air Ministry in or around 1941 and notwithstanding that the landholders were paid compensation based on the permanent loss or restriction of the ability to use that land, the land remains subject to crofting tenure because, for aught yet seen, (i) compulsory purchase powers were not used to acquire it and (ii) the formalities which would otherwise be required for its release have never been completed.