THE COURT

(Lord McGhie, Mr D J Houston)

ANGUS LAMONT v WILMA I KENNEDY AND OTHERS

(Application RN SLC 160/09 – Order of 8 September 2009)

CROFTING – COMMON GRAZINGS – EFFECT OF APPORTIONMENT – DEEMED CROFT – PERTINENT – CONFUSION – TENANT ACQUIRING LANDLORD’S TITLE TO PART OF CROFT – WHETHER DIVISION OF CROFT – FAILURE TO INTIMATE CHANGE OF TITLE – CROFTERS (SCOTLAND) ACT 1993 Secs 3 (4) and 3 (5), Sec 9, Sec 23.

A crofter was granted an apportionment of common grazings in four parcels and her souming was extinguished. She subsequently she purchased one of the parcels, extending to 3.9ha. She did not purchase the original croft nor any of the other parcels. She did not intimate the change of title to the Crofters Commission. The disposition in her favour expressly excluded four house sites lying within the 3.9ha parcel. She later she transferred title of the 3.9ha to a couple who owned a house on one of the sites. This transfer was not intimated to the Crofters Commission. She then decided to assign her croft to the applicant. The application contained reference to four parcels and the Crofters’ Commission approved the assignation. After the apparent assignation the applicant made use of the 3.9ha. A dispute arose over his right to do so.

HELD apportionment superseded the original grazing rights attached to the croft. The apportionment had become part of the croft in terms of sec 3(4). A deeming provision superseded any other meaning or definition. The Act provided for a crofter to purchase any part of his or her croft and purchase of a part of a croft inevitably brings an end to the tenancy of the part. When the original crofter acquired title to the 3.9ha, that area ceased to be part of her tenancy because she could not be landlord and tenant at the same time. Accordingly, any assignation of a tenancy by her could not include that apportionment. The applicant had no rights in the 3.9ha and accordingly no title or interest to pursue the application. Although the creation of a part which was vacant could potentially lead to division of the croft, this would not necessarily be struck at by sec 9. In any event, if there was a competition between statutory provisions, the right to buy should receive effect. The obligation to intimate changes in title arose under sec 23 and the effect of subs. (12) and (2) was that such failure was to be met by criminal sanctions. In the circumstances it was to be taken that the breach in question did not affect the civil rights of parties involved in related transactions. OBSERVED that dicta in MacMillan v MacKenzie were potentially misleading and had to be read carefully in context. Plainly, the Court had considered that land which had been apportioned could not be regarded as still being part of the common grazings.

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

Introduction

The applicant initially sought an Order that he was tenant of a 3.9 hectare piece of land apportioned to croft 17/18 Kilmoluaig, Isle of Tiree in 1995. We shall use the expression “17/18” to refer to the original croft and the expression “the 3.9ha” to refer to the land in dispute in this case. It should, however, be noted that the question of precise area may possibly be relevant in relation to four houses lying within the apportioned area and the extent and status of garden or amenity ground currently used in connection with them. So, we do not treat the figure as an accurate measurement. The four respondents are owners of the houses. The Crofters Commission lodged answers as an interested party.

[1] A hearing was arranged at Oban on 8 July 2010. It had been agreed that this should be limited to the question of whether the applicant was the crofting tenant of the 3.9ha. However, by letter of 14 June, the applicant sought to amend his case to seek a finding that he is the “rightful occupier” of the 3.9ha rather than the tenant. This was based on the proposition that the rights in the common grazing were not a tenancy. They were simply a pertinent of the original croft. However, the letter made it clear that if the Court did not support this contention the original crave was to stand as a fall back. We have accordingly had to consider both aspects of his claim.

[2] At the hearing Mrs Susan Lamont, wife of the applicant, was allowed to appear on his behalf. Sir Crispin Agnew, QC appeared on behalf of the respondents. There was no appearance for the Commission. Neither party asked to be allowed to lead evidence and the hearing proceeded as a debate on the respondents’ preliminary plea challenging the applicant’s averments as irrelevant.

Authorities

Castle and Others v Philp 1997 SLT (Land Ct) 22
Crofters Commission v Arran Limited and Ors. 1997 SLT (Land Ct) 22
Crofters Commission v Gunn 1991 SLT (Land Ct) 53
Crofters Commission v Mackay 1997 SLT (Land Ct) 2
Guthrie v Bowman (No. 1) 1998 SLT (Land Ct) 5
Davidson v Clydesdale Bank 1998 SC (HL) 51
MacMillan v MacKenzie 1995 SLT (Land Ct) 7

Statutory material

Crofters (Scotland) Act 1993
Crofters Holdings (Scotland) Act 1886

Background facts

[3] Mrs Lamont had prepared a background summary. This contained a number of assertions of fact, some supported by clearly itemised reference to productions and some more general assertion. We make some reference to this background material below but, since the hearing proceeded as a debate, we set out, at this point, only the relevant agreed facts. These were not disputed and can be shortly stated.

[4] In 1980 Mrs Doris MacLean succeeded to the tenancy of the croft 17/18 Kilmoluaig on the death of her husband. In October 1995 she was granted an apportionment of Kilmoluaig common grazings in four parcels, all adjacent to her croft and totalling 24.9 ha. Her souming in the grazings was extinguished. In May 1997 she purchased the 3.9ha parcel from Argyll Estates. She did not purchase the original croft nor any of the other parcels which had been apportioned to her. She did not intimate the change of title to the Crofters Commission. The disposition in her favour expressly excluded four house sites lying within the 3.9ha parcel.

[5] In July 2002 she transferred title of the 3.9ha to Mr and Mrs Colin McCallum who owned, and still own, one of the houses which they use as a holiday home. This transfer was not intimated to the Crofters Commission.

[6] In February 2003 Mrs MacLean wished to assign her croft to Mr Lamont. He had originally assisted her working her croft and had been sub-tenant under a formal sub-tenancy of most of the original croft 17/18 and three of the original apportioned parcels. The sub-let agreement excluded the 3.9ha and part of the original croft. The pro-forma application to the Crofters Commission for consent to the assignation included a box headed “croft shares/souming”. The entry showed: “4 shares which are apportioned and to go with the croft”. The form had been completed by Mr Lamont on Mrs MacLean’s behalf.

[7] For completeness, it may be noted that a letter of 2 December 2005 was produced which bore to have been written and signed by Mrs MacLean. It included the following: “I told Angus the day he came and filled in the form for me to give him the rest of the crofts, that the field around Colin’s house is Colins, and was nothing to do with the croft”. We also noted that in the box for her signature in the pro-forma her name was simply printed.

[8] Although there is clearly a dispute as to whether Mrs MacLean ever actually attempted to assign any right in the 3.9ha, the debate was conducted on the usual basis; that is, accepting, for the purposes of the legal argument, that she had done so. If the case came to a hearing it might be necessary for Mr Lamont to consider whether he accepted the letter of 2 December 2005 as being what it bore to be and, if so, whether he accepted it as accurately reflecting the position of Mrs MacLean. If not, he would, of course, have to consider what evidence he might lead to challenge it.

[9] The Crofters Commission approved the assignation.

[10] After the assignation Mr Lamont made use of the 3.9ha for grazing. In 2004, a dispute developed between Mr Lamont and the McCallums regarding his use of the ground. In July 2004 Mr Lamont was advised that, according to the Crofters Commission’s records, he was tenant of the whole croft plus the apportionments. There was then extensive correspondence culminating in proposals by the Commission to let the 3.9ha. For present purposes it is unnecessary to set out detail of the further developments and exchanges of correspondence. It is sufficient to note that ownership of the 3.9ha was eventually divided among owners of the four house sites.

Submission for the respondents

[11] Sir Crispin provided a written outline of his submissions. They can be summarised briefly. It was contended that when Mrs MacLean acquired title to the 3.9ha, that area ceased to be part of her tenancy because she could not be landlord and tenant at the same time. Accordingly any assignation of a tenancy by her could not include that apportionment. Apportionment superseded the original grazing rights and accordingly the argument that Mr Lamont held grazing rights as a pertinent of his croft was without foundation. Our Discussion below reflects the detail of Sir Crispin’s submission and it is unnecessary to set it out at greater length.

[12] He asked the Court to hold that Mr Lamont has no rights in the 3.9ha and accordingly no title or interest to pursue this application or that his application was in any event, unsupported by relevant averments. He moved that the action be dismissed in relation to Mr Lamont but continued for a determination that the house sites are not subject to the control of the crofting legislation. He submitted that this could competently be done as the Crofters Commission was already a party.

[13] Sir Crispin also urged us to make a finding that the 3.9ha did not include the house sites. He referred to various productions in support of this. We did not, in fact, understand Mrs Lamont to dispute the proposition that the “original house sites”, were not included in the apportionment. It is clear that Mrs MacLean did not acquire title to the original house sites and if they were part of the apportionment quite different arguments would have applied. Mrs Lamont advanced no argument in relation to them. Her contention was that the original sites did not include what are alleged to be more recent extensions to some of the buildings or garden ground. As the hearing was restricted to the question of whether the applicant was tenant of the apportionment and the matters covered by the applicant’s letter of 14 June, it is not appropriate to make any formal order. The material before us tended to support Sir Crispin’s position as far as the original house sites were concerned but we did not hear evidence and are in no position to make any finding as to that or the nature and extent of any extensions there may have been. We also note that, in its Answers, the Commission refer to the houses as being within the apportionment and we think that the Commission should have an opportunity to consider its position before any further order is made.

Submission for the Applicant

[14] Mrs Lamont provided a helpful written statement of her submissions. She set out a meticulously prepared summary of the applicant’s contentions as to the background, supporting the various contentions with clear references to the relevant productions. The broad picture presented was of a conflict between the interests of crofters in making proper use of the 3.9ha for agricultural purposes and the interests of the owners of the house sites (three of which were holiday homes). It was said that Mr Lamont had not attempted to pursue any claim to the area in question at the time when he thought that the Crofters Commission would compel it to be let to some crofter or aspiring crofter and that it was only when it became plain that the house owners were trying to thwart that outcome that he sought a ruling that he was, in fact, the rightful occupier.

[15] It was submitted that the fact that the McCallums had divided the 3.9ha into four parts and given parts to each of the other house owners showed the intention to remove the land from crofting. This was made clear by the owners’ applications to decroft the various parcels of land. These applications had been opposed. The current state of play was that the Crofters Commission had allowed decrofting of only a small area. The Commission was now proposing to let the remainder of the 3.9ha to a person who was not regarded by Mr Lamont as a suitable tenant from an agricultural point of view. The fact that ownership had been so divided meant that the units were unviable in agricultural terms. In any event, the effect of the respondents’ activities was equivalent to removal of the land from crofting use. It was feared that the proposed tenant would probably restrict his use of the land to uses which suited the house owners rather than making best agricultural use of it.

[16] We have set out this material for completeness but we have not had a hearing on evidence and we base our decision on the “Background facts” set out above.

[17] Mrs Lamont’s written material also set out clear and well formulated propositions in law. We attempt to summarise these briefly but we cover the main contentions in the Discussion, below.

[18] The primary argument as advanced in the letter of 14 June 2010 was that the right to graze the 3.9ha remained as a pertinent of the original croft 17/18. Assignation of the tenancy of that croft, therefore, carried with it that pertinent. The pertinent was said to be the right to “occupy” the area in dispute because it was apportioned to the croft. The 3.9ha was part of the 24.9 ha shown in the Register of Crofts. It was contended that change in ownership of part of a common grazings had no bearing on any right available to the crofters sharing in those grazings. It was also contended that the occupier/tenant of 17/18 had right to occupy the 3.9ha because it was deemed to be part of that croft.

[19] An argument on similar lines was advanced at the hearing. However, it was advanced in terms of a proposition that the 3.9ha was not a croft. This was supported by reference to the definition of a croft in Section 3(1). The provisions of this sub-section made reference to events in 1955. At the time of the 1955 Act the area plainly was not a “holding”. It was part of the common grazings. It was contended that, as the area did not fall within any of the definitions in sub-section (1), it could not be a croft. This argument was supported by reference to Section 41. The Crofters Commission had a duty to enter certain information. The Register showed the area of a croft as separate from the areas apportioned to it. These areas included the 3.9ha.

[20] It appeared that Mrs Lamont’s written submissions were aimed, in part, at a challenge to the Crofters Commission’s proposal to let the area to another person under the power given to them by sec 23(5). If the area was to be treated as common grazings and not part of a croft, this would be an incompetent course. In any event, the argument in relation to the present application was that the land had not ceased to be common grazings. She referred to MacMillan v MacKenzie at pages 51 and 52 and pointed out the Court had said words to the effect that the act of apportionment did not mean that the land apportioned ceased to be part of the common grazings. Accordingly the tenant of 17/18 should still be seen as having rights in the grazings as a pertinent of the original croft. In terms of sec 3(4), the apportioned area was deemed to form part of the croft. It followed that Mrs MacLean continued to hold rights over the apportionment as part of her tenancy of 17/18. This could be, and had been, assigned to the applicant.

[21] The grazing rights pertaining to 17/18 could only be removed by statutory procedure. The purchase of 3.9ha by Mrs MacLean did not affect the grazing rights which remained with the original croft tenancy. It was said that the rent paid to Argyll Estates still included an element for grazing. The further changes in title similarly had no bearing on the grazing rights. The new owners were simply owners of land burdened with the grazing rights attached to 17/18.

[22] It was submitted, by way of comparison, that if Mrs MacLean had purchased 17/18 and not the apportionment, she would, in terms of sec 3(5) have been deemed to hold the grazing rights pertinent to the croft in tenancy until held otherwise. It was contended that this would apply whether these rights had been apportioned or not. If she subsequently let the croft, the tenant would automatically acquire the grazing rights which would then be “held otherwise”. The deeming provision allowed the unit of the croft plus grazing rights to remain intact. That fitted the intention of the Act. The essential point was that the grazing rights derived from the title to 17/18 and not from the title to the land burdened by such rights. This was supported by reference to the decision in Crofters Commission v Arran Limited.

[23] It may be noted that much of the detail of the submission was essentially based on the contention that the rights in the apportionment were simply equivalent to exclusive grazing rights and that the grazing rights remained despite apportionment. As will be seen, we think that is a critical issue. It is unnecessary to set out fully the various consequences said to follow from that contention.

[24] Mrs Lamont stressed that the whole of sec 3 was dealing with the definition of “croft” and “crofter”. When something was deemed to be part of a croft it would continue to be part of the croft until that status was properly terminated. The grazing rights had never been terminated. Mrs MacLean could not have simply agreed to give them up. This would have required the authority of the Court under sec 5(3). She could not transfer the grazing rights to anyone without consent of the Commission.

[25] Mrs Lamont referred to Castle and Others v Philp for the proposition that rights in common grazings are good against singular successors. She pointed out that the consent of the owners of the common grazings to an assignation of grazing rights was not required. In any event, her assertion was that the part owners of the 3.9ha were not to be regarded as owner/occupiers of a croft but as owners of an area subject to grazing rights.

[26] In relation to the alternative argument and the contention that Mr Lamont was tenant of the 3.9ha, Mrs Lamont pointed to the conditions on which the apportionment had been granted. One was that the use was to be for improved management. Mrs MacLean purchased the area by private bargain. Had she required to proceed under the statutory provisions, the Court would have had to have regard to the conditions of the apportionment in terms of sec 13(5). She had avoided this by the private purchase. When Mrs MacLean bought the land and later conveyed it to the McCallums, she did not give intimation to the Crofters Commission. This was a breach of sec 17(7). However, Mrs Lamont made no submission as to the consequences of such breach.

[27] The assignation to Mr Lamont was, she said, properly carried out. There was advertisement and a report by the local assessor. At that time, none but the parties directly involved knew that there had been a prior transfer of title. She asserted that Mr Lamont did not know of this.

[28] Mrs Lamont said that, if it was correct to say that Mrs MacLean’s tenancy of the 3.9ha ended when she bought it, it was clear that she had continued to occupy it as owner occupier. That occupation was by virtue of the use she made of it through Mr Lamont himself. She had authorised his use. He had in fact occupied it. When she came to convey the land to the McCallums she continued to occupy it in this way. Her occupation was, accordingly, to be seen as a tenancy. She was, throughout, recorded in the Register of Crofts as the tenant. In other words, there was no confusion of landlord and tenant at the time of the assignation. Any assignation by her would, accordingly, have included the 3.9ha. It was pointed out that there was no facility under the 1993 Act for the creation of new crofts. However, the apparent effect of the changes of ownership was to create a number of tenancies or potential tenancies even if to the same tenant. This could only be regarded as sub-division of the original croft. This was contrary to Section 9. There had never been any consent by the Crofters Commission to such sub-division. It was submitted that the purpose of the successive Crofting Acts had been to regulate crofting and the division of croft tenancies by simple changes in title to the land, without reference to either the Crofters Commission or the Land Court could not have been intended by Parliament. It was likely to lead to the end of crofting because, if the land was sold off in small plots, enforced letting under sec 23(5) would be difficult and unviable.

Discussion

[29] It may be observed that the opening sentence of the written submissions, setting out the background on behalf of the applicant, was in the following terms: “This case concerns an attempt by a Stirlingshire business man to acquire for his own amenity use an area of land situated in the crofting township of Kilmoluaig, Isle of Tiree”. This assertion helped the Court understand the underlying reasons for the applicant’s contentions and we set it out as a reminder, if such was needed, of the practical issues which so often lie behind technical legal arguments. However, it is plain that there is normally little scope for a court to give weight to the emotive side of a dispute. Our task is to ascertain and apply the proper law. Crofting law is essentially based on statute. It is hardly surprising to find that the legislators have been unable to make provision to cover all the wide variety of situations which can arise in real life. Where there is no explicit provision in any Act or Regulation, a court must apply any relevant underlying principles of common law. Where there is a competition between such principles and any statutory provision, the latter prevails. Where there is a competition between two statutory provisions, a court must try to construe them in a way which avoids conflict. If that is not possible, it becomes necessary to determine which should prevail.

[30] The addition of a right to buy to a system primarily designed to regulate tenancy relationships, has given rise to some apparent conflicts. It is not always possible to proceed by reliance on the literal terms of any one section. It is necessary to have regard to the Act as a whole, and to established interpretation. The importance of well established interpretation, or understanding, is re-enforced by the fact that Parliament has had an opportunity to correct any construction it considered erroneous. The right to buy provisions were established by the 1976 Act. They were not changed in any way of relevance to the present dispute by either the 1993 or 2007 Acts.

[31] Accordingly we consider it appropriate to approach this case by reference to three propositions which we consider now to be tolerably clear.

[32] We start with the proposition that when part of a common grazings is apportioned the legal nature of crofter’s rights in relation to the land in question changes. A grazing right is regarded as a right “in” or “over” land. When a person acquires the complete bundle of rights associated with ownership or a tenancy, his rights are described in terms of a right to the land itself. When part of a common grazings is apportioned, the crofter is said to have a right to the land. It is the land itself which is deemed to be part of the croft in terms of sub-sec (4). Prior to apportionment a crofter’s rights are limited to a right to graze. It may be said, for completeness, that crofters’ rights over common grazings may in many cases go beyond right to graze and include, for example, rights to take peat or to use the land for boats and nets. The land is said to be burdened with such rights. They are rights over the land. Of course, rights of ownership and rights of tenancy can also be described in terms of being a bundle of rights over the land. But our law has recognised that such bundles are so extensive that they require to be treated in a different fashion from rights over land. One important difference between the crofter’s right to apportioned land and his or her rights in relation to land over which he or she has grazing rights, is that the crofter is given a right to buy the land: sec 12(3). The effect of the express provision that the land which has been apportioned is “deemed” part of the croft is that it must be treated as part of the croft for all the purposes of the Act except where there is clear statutory authority for treating it in some different way.

[33] One example of a statutory provision which requires apportioned land to be treated differently from other parts of the croft relates to the right to buy. The crofter only has a right to buy land apportioned to him or her, if it is adjacent to the rest of the croft. Where there are provisions which expressly or by clear implication limit the scope of a “deemed” provision we must give effect to them. But, the effect of a deeming provision cannot lightly be disregarded. If land is to be held in tenancy as part of a croft, it may have special features but while it is held in this way, there is no scope for the concept of it remaining as part of the common grazings. It is part of the croft. In any event, where one person is given an exclusive use of land reference to that land as “common” grazings is no longer appropriate.

[34] We recognise that the observation of the Court in MacMillan v MacKenzie to which Mrs Lamont referred, appears to be to a different effect. It is, however, necessary to read dicta in context, to have due regard to the weight to be given to particular observations, and to have regard to the effect of subsequent decisions. That case concerned a comparatively unusual situation where a person who had acquired grazing rights did not hold any associated croft either as tenant or as owner occupier. He obtained an apportionment in respect of some of his grazing rights. This may be referred to as a “partial apportionment” in respect that he continued to have grazing rights in the common grazings, but we accept that, for present purposes nothing turns on this. The status of the land apportioned is not affected by the retention of other grazing shares. The Court said in explicit terms that the effect of the statutory provisions was that the tenant became tenant of the apportioned land and that land became a croft: page 8D. It was said that when he became a tenant of the land consisting of the apportioned land, his continuing rights of pasture in the rest of the grazing land became part of that croft: page 8E.

[35] The passage to which Mrs Lamont drew attention was at page 8H-I of the S.L.T. report. However, it is important to note that the Court, at the start of the relevant passage, said that it was a “contradiction in terms” to say that land which had been apportioned was to be regarded as part of the common grazings. The Court concluded that what was meant by the statutory provision was a reference to land which, prior to apportionment, (our emphasis) had been part of the common grazings. These observations can only be taken to mean that the Court considered that land which had been apportioned could not be regarded as still being part of the common grazings. However, in the passage referred to by Mrs Lamont the Court pointed out that the statute did not say that an apportionment was to cease to be part of a common grazing. There is, accordingly, an apparent contrast between the first and second parts of the paragraph. The material in the second part seems to us misleading. It appears that the intention of the Court must have been to make the point that, although the Act does not say that an apportionment ceases to be part of the common grazings, it has that effect because it says that part of the grazing is made over to the exclusive use of the crofter. There can be no element of “common” grazing if a new right has been granted, vested in a single person. (It may be noted in broad terms, for completeness, that this is not the same as a number of rights being held at one time by one person: Crofters Commission v Gunn; Crofters Commission v Arran Ltd at p 25.)

[36] In any event, the decision in MacMillan v MacKenzie was followed by express discussion of the issue in Guthrie v Bowman. The original decision of 12 June 1996 was taken by the Court under Lord Philip although the report in Scots Law Times does not make this clear. The Court had to consider the nature of a crofter’s rights in apportioned land. The crofter had previously bought the original croft. The apportioned land was being considered on its own. The question was whether use of the apportioned land as a landfill site was a use “for subsidiary or auxiliary operations” within the meaning of the statutory conditions set out in Schedule 2 of the Act. The Court held that the exclusive use given by apportionment was not restricted to grazing even where the apportionment had been granted for grazing purposes. The Court stressed the distinction between the references to a “right in pasture” and to “any land comprising any part of a common grazing” which appears in sec 3(4). The effect of the first decision was summarised in the Court’s decision of 4 June 1997: “The substance of that decision was that apportionment of an area of common grazings changed the nature of the crofter’s rights in the area in question. They were no longer merely grazing rights but became rights in the land itself. It followed that the rights were to use the ground as if it was itself a croft or part of the original croft.” This is consistent with the express provisions of sec 3(4). If the rights of use of a particular piece of land are unrestricted and the Act expressly says that the land is to be deemed to be part of the croft, we find no basis for holding that it is not part of a croft. If the land is held “in tenancy” as part of the croft it cannot be part of a common grazing. No one has “grazing rights” over it although of course the tenant is free to use it for grazing. He has a right to graze or use it for other crofting purposes as he pleases.

[37] That finding seems to us to be of critical importance for the applicant’s contentions. As we have said the distinction is between the concept of holding some rights over the land and the concept of right to the land itself. Where a person has an unrestricted use of land, the limited right of grazing is displaced. There is no place for the concept of a continuing right of grazing held by someone who has full right to use the land itself.

[38] We accept Sir Crispin’s submission that the argument advanced by Mrs Lamont and based on sub-section (1) is fatally flawed by its failure to deal properly with sub-sec (4). A deeming provision supersedes any other meaning or definition. If something is deemed to be the case it must be accepted for all relevant statutory purposes as being the case. As we have said, if land is to be taken to be part of the croft it cannot simultaneously fall to be regarded as part of the common grazings. The deeming provision has the legal effect of requiring that the land to be treated as held in tenancy for all relevant purposes arising out of the Act. Some of the implications are not spelled out, but if there is a tenancy of land, the owner of that land must be a landlord. This is not the same as the situation where a grazing “right over land” is held as part of a croft tenancy. There, the landlord of the original croft will be the landlord of the grazing right. The owner of the common grazings holds his land subject to the burden of such rights. It is fair to say that all the implications of certain deeming provisions are not entirely clear. The provisions of sec 3(5) can create difficulties but the effects of sec 3(4) are clearer and, in particular, those of sec 3(4)(b) are illustrated in Guthrie v Bowman.

[39] The second important legal proposition is that the Act provides for a crofter to purchase any part of his croft. He is not obliged to buy all or nothing. This follows from the right to buy “croft land” which is defined as any land being “part of a croft”. We are satisfied that this is an irresistible inference from the provisions of the Act taken as a whole. It is explicitly allowed in relation to the croft house and garden, in terms of sec 25(1)(b). It is implicit in various subsidiary provisions. Sec 13(1) refers to an Order authorising the crofter to acquire “such croft land as may be specified in the Order”. Sec 14(2) provides that the crofting value of the land acquired is to be “the proportion attributable to the croft land of the current rent payable for the croft of which the croft land forms part”. Further it may be said that we are satisfied that if the intention had been to force the crofter to commit to purchase of the whole croft this would have been spelled out explicitly.

[40] The third proposition is that purchase of a part of a croft inevitably brings an end to the tenancy of the part. It creates a vacancy. This is often referred to in terms of the operation of the doctrine of “confusio” or confusion. This, of course, is not the same as “confusion” in our modern sense although the origins are similar. The legal expression is better understood as covering the situation where two interests are “fused” together. However, in simpler terms, it can be explained by the fact that a lease is a contract. A person cannot enter a contract with himself; so, whatever difficulties may arise in relation to the application of confusio in more complex situations, there can be no doubt that where a tenant acquires title as owner in the same capacity - that is, as an individual - as he held as tenant, the tenancy must come to an end.

[41] The concept is well understood in crofting. Acceptance of it is implicit in recognition of the category of owner/occupier. It has statutory authority. For example, the Commission is empowered by the provisions of sec 24(3) to make a decrofting direction in certain circumstances. It can make such a direction only where the croft is vacant. One example is where the crofter has bought his house: sec 25(1)(b). As there is no explicit provision saying that where a crofter buys part of the croft consisting of a house site, that part becomes vacant, it is clear that the Act simply proceeds on the basis of the common law concept. The tenancy becomes vacant because the landlord cannot be his own tenant. It may be noted that Parliament plainly proceeds on an understanding that a person who has bought part of his or her croft is to be treated as landlord of that part alone and that the former crofter does not become joint landlord of the whole croft. We must give effect to that understanding. If the purchase of part had the effect of making the crofter a joint landlord of the whole, his or her position as tenant of the whole would be undermined. This concept is discussed at greater length in the case, Davidson v Clydesdale Bank, to which Sir Crispin referred.

[42] As the analysis in the present case has shown, when a crofter buys any part of his croft, the croft is, in one sense at least, divided. Part remains in his tenancy. The other part is vacant. The Commission cannot direct that the landlord let that part to himself. Accordingly any new let will bring about a practical division. But, while the owner continues to occupy and use the whole croft there is no such division. The Commission has some control of the practical situation because it can refuse to consent to a let to a different potential occupier.

[43] We are satisfied that it follows from these three legal propositions that the contentions advanced on behalf of the applicant must be rejected. There were no grazing rights over the 3.9ha to be passed with the assignation of the original croft. There was no tenancy of that area at the time of the assignation by Mrs MacLean of her tenancy to Mr Lamont.

[44] However, it is appropriate to go on to deal with some other issues which arose. Perhaps the most important related to the prohibition on a crofter sub-dividing (now, under the 2007 Act, referred to as “dividing”) without consent of the Commission in terms of sec 9.

[45] The purpose of that section appears to have been to ensure that the Commission had control not only of the letting of crofts but over the extent of crofts: Crofters Commission v Mackay: p3 J-K. The original mischief to be countered by a prohibition on sub-division appears to have been the practice of allowing relatives or others to establish separate units within the croft. This was contrary to the statutory conditions of tenancy provided by the 1886 Act. It might have been thought that the obvious intention of the prohibition was to prevent sub-letting either by a tenant granting sub-leases allowing two or more sub-tenants to share the holding or granting a sub-lease of part and retaining the remainder. However, sub-letting was also prohibited by the original statutory conditions and is now controlled by the provisions of sec 27(2). Accordingly, although “sub-division” is not defined, sec 9 cannot have been aimed at sub-letting. It would therefore seem that the primary aim of sec 9 must have been to prevent a simple division by assignation of part or parts of the tenancy.

[46] On any view, the aim must have been to prevent practical division of occupation. A division by assignation of part of the lease would bring that about. Such an assignation without consent of the Commission is “null and void”. It is not so clear that the intention was to strike at all separation of legal rights if they did not have, as a necessary practical consequence, a division of occupation. The acquisition of part of a croft by an owner/occupier would not necessarily lead to any physical division. The same person could, and probably would, continue to occupy the whole. If that occupier gave up his possession of the croft as a whole, the two landlords could agree to lease the whole croft to a single new crofter. In any event, whatever the effect of division of ownership, the Commission will retain ultimate control of occupancy of the various parts: for example in terms of sec 23(3). This allows the Commission to keep practical control of the size of units.

[47] Although Sir Crispin appeared to accept that any separation of legal right to occupy necessarily amounted to sub-division within the meaning of the section, even where the creation of two separate rights had no immediate practical consequences, we do not consider that this issue is critical in the circumstances of the present case. We would prefer to hear further submission in an appropriate case before expressing a concluded view. However, we must mention the decision of the Full Court in Crofters Commission v Mackay which we drew to the attention of Mrs Lamont at the hearing. In that case, the Court expressly referred to the creation of two smaller holdings “capable of separate occupation”. This gives support to the proposition that a separation of legal rights is, itself, sufficient to create a division, or sub-division, for the purposes of sec 9 if the effect was to give rise to two units which might possibly come to be separately occupied. But, it must be noted that the Court was dealing with the case of a purported renunciation or abandonment of part of a croft. The attempted division was a practical one. The tenant had written to the Crofters Commission saying that he had given up the tenancy of part of the croft and had handed it back to the landlord. The Court was dealing with the legal consequences which might follow practical abandonment of part of the croft. The Court said: “In our view the mischief which Section 9 was designed to prevent occurs not only when a croft is sub-divided between two tenants, but also when a part of the croft is made available for let (our emphasis) to a party other than the existing tenant. The purpose of this provision is further to facilitate the maintenance of the Commission’s control over the letting of crofts and over the size of croft units with a view to avoiding further fragmentation of croft land”: p 3 I-J.

[48] We observe that the acquisition of part of the croft by an owner/occupier does not normally lead to a situation where part of the croft is “made available for let to a party other than the existing tenant”. We consider that the purposes of sec 9 might well be fulfilled by limiting its application to circumstances where there is an inevitable division of occupation. However, we need not express a concluded view of this matter.

[49] For present purposes, we can proceed on the basis of an assumption that sec 9 is not limited to situations where the crofters’ actings lead to immediate division of physical occupation. In other words, we assume, for the purposes of the present debate, that the section applies in any situation where a change of rights has led to a situation capable of separate occupation, whether or not any separate occupation has occurred in fact. If so, there will be a potential conflict between sec 9 and the effects of the right to buy provisions. Although Sir Crispin accepted that the reference to “sub-division” in sec 9 applied to any form of division of legal right, he contended that there was no breach of the section because the division was not brought about by the actings of the crofter as such. The division was simply a consequence of the crofter’s exercise of his statutory rights.

[50] We think it unnecessary to attempt to resolve that conflict by a narrow construction of sec 9, as such. It is enough to say that if there is a conflict between the operation of sec 9 and the right to buy provisions, we have no doubt that the latter must prevail. They reflect the express intentions of Parliament while the full potential implications of sec 9 may not have been realised. In other words, even if it is to be accepted that sec 9 requires a wide construction to reflect an important policy against fragmentation, we have no doubt of the importance of the crofter’s right to buy. It cannot be suggested that a crofter’s purchase of his house site is to be deemed null and void simply because it has the effect of “dividing” the croft. That may be the most powerful example but we think the principle also applies to the right to buy any part of a croft. As we have discussed above, the Act was intended to give crofters a right to acquire their croft land. We cannot accept that the prohibition on sub-division, or division, under sec 9 has the effect of nullifying a crofter’s acquisition of any part of his croft.

[51] Accordingly, we are satisfied that the provisions of sec 9 have no bearing on the facts of the present case. Mrs MacLean was entitled to buy the 3.9ha. When she did, her tenancy of that area ended.

[52] We find no basis for the suggestion that the tenancy revived when she conveyed that land to Mr and Mrs McCallum. We did not understand Mrs Lamont to contend that the tenancy revived automatically. The argument was that Mr Lamont had continued to occupy the land on the basis of consent, express or assumed, given to him by Mrs MacLean. This, it was said, made her the tenant of Mr and Mrs McCallum. This argument plainly goes too far, too fast. For a tenancy to be created there must be agreement, express or implied, between two parties, landlord and tenant, including agreement, express or implied, for payment of rent.

[53] There are no averments capable of giving any factual backing to this line of argument. But, even if we could assume that Mr Lamont was offering to prove that, after giving the subjects to Mr and Mrs McCallum, Mrs MacLean gave him permission to use the fields and to prove that Mr and Mrs McCallum knew that he was using the fields on a regular basis, it does not follow that they knew that Mrs MacLean was in any way involved, far less that they agreed to her being their tenant. The more obvious implication would be that they simply did not mind Mr Lamont having casual use of the subjects. They themselves plainly did not require them for agricultural purposes. Be that as it may, we are satisfied that there is no substance in the contention that Mrs MacLean was tenant of Mr and Mrs MacCallum at the time of the assignation to Mr Lamont. She had no rights to assign in relation to the 3.9ha.

[54] Reference was made to the failure of Mrs MacLean and Mr and Mrs McCallum to intimate to the Crofters Commission their respective acquisitions of the 3.9ha. We did not understand Mrs Lamont to found on this as having any essential bearing on her arguments. We think that approach is correct. Mrs MacLean’s obligation arose under sec 23 and the effect of subs. (12) and (2) is that the failure was to be met with criminal sanctions. Where there is express provision for criminal penalties, it will usually be implied that the breach in question does not affect the civil rights of parties involved in related transactions. As the aim of such provisions is to maintain an accurate administrative register, failure to intimate would not normally be expected to have any such effect. Sec 17(7) does not make any provision as to the effect of failure to comply but in the context, we are satisfied that such failure does not have the effect of nullifying the disposition in their favour far less justifying any change in the Register of Title.

Decision

[55] For the reasons set out above, we are satisfied that there is no basis for Mr Lamont’s claim to have rights in the 3.9ha. The grazing rights, as such, were superseded by the apportionment. The tenancy of the 3.9ha came to an end when the crofter Mrs MacLean became landlord of it. She had no title to any right in that land at the time when she assigned the tenancy of her croft to Mr Lamont. He, accordingly, could not derive title from such assignation. The respondent’s plea must be sustained.

[56] It was agreed that we should invite written submissions on expenses. We reserve the question of certification of the cause for Counsel until we come to deal with expenses as a whole.