THE COURT

(Lord McGhie)

URRAS OIGHREACHD GHABHSAINN v CROFTERS OF SOUTH DELL

(Application SLC 163/13 – Order of 7 April 2014)

CROFTING – RESUMPTION OF PART OF COMMON GRAZINGS – SHARE IN COMMON GRAZINGS DEEMED PART OF CROFT – REGISTRATION TRIGGER – CROFTING REFORM (SCOTLAND) ACT 2010 SEC 4(4)(G); SEC 25 (2)(A); CROFTERS (SCOTLAND) ACT 1993 SEC 3(4)

A question arose from concern as to the proper effect of the provisions of sec 4(4)(g) of the Crofting Reform (Scotland) Act 2010 in relation to an application for resumption of part of a common grazings. Did resumption of such a part of a croft trigger a requirement for first registration in the Crofting Register of all crofts holding shares in the common grazings? HELD that that this provision, taken on its own, would require resumption of a part of the common grazings to be treated as a trigger event because the word “croft” is explicitly defined in sec 4(11) by reference to sec 3 of the 1993 Act. Under sec 3(4) a right in grazing land is to be deemed to form part of a croft. However, this was inconsistent with the scheme of the Act as a whole. The plain intention was for common grazings to be regulated by secs 24 and 25 and not sec 4.

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

[1] By our Order of 17 February 2014 we invited submissions on the question of whether an application for resumption of part of a croft triggered a requirement for first registration in the Crofting Register of all crofts holding shares in the common grazings. The question arose from concern as to the proper effect of the provisions of sec 4(4)(g) of the Crofting Reform (Scotland) Act 2010. There is little doubt that this provision, taken on its own, would require resumption of a part of the common grazings to be treated as a trigger event. The word “croft” is explicitly defined in sec 4(11) by reference to sec 3 of the 1993 Act. Under sec 3(4) it is clear that a right in grazing land is to be deemed to form part of a croft. It is hard to see that as being in any way ambiguous. However, we recognised that this was hardly consistent with the plain intention of secs 24 and 25.

[2] In response to the advertised order we received no representations supporting a literal construction of sec 4(4)(g). The Crofting Commission acknowledged the nature of the problem and said that it was not their understanding that the intention of the legislation was that a landlord would be required to register the individual crofts affected by an authorisation to resume part of the common grazings. However, they left the matter to the Court. The Commission have not replied to a request to confirm explicitly that they are content that the Court deal with the matter on written submissions but as they do not challenge the view expressed below it is unnecessary to seek further confirmation. The applicant’s solicitors had set out their submissions on the matter in some detail in a letter of 30 January. Put shortly their submissions were to the effect that the very clear provisions in sec 25 in relation to the trigger events for registration of common grazings were inconsistent with a literal construction of sec 4.

[3] The above material appeared to cover all the relevant ground and in absence of any contradictor we saw no need for further submissions from the applicants.

[4] The primary concern of a court is with the language actually used by Parliament. The starting point for the purposes of statutory construction must be to try to find the intention of Parliament within the four corners of the Act. This may mean that words which might appear to have a clear meaning in the context of a single section require to be given some other construction to fit the context of the Act as a whole. There may even be occasions when a court will be able to take a view as to the clear meaning of the Act as a whole which makes it possible to ignore the actual words used: see for example Harvey v MacTaggart Meikle 2000 SC 137. Put shortly, where a court is in no doubt as to the actual intention of Parliament, a somewhat strained construction of the language used may often be justified.

[5] Although the Commission make reference to their understanding of the intention of the Act we think it unnecessary to attempt to identify what external sources may be relied upon to ascertain the intention of Parliament. We recognise that this may be a somewhat fluid area in modern practice.

[6] We are satisfied that the intention of Parliament can be determined with sufficient clarity by consideration of the Act as a whole. Section 4 must be read in a way which makes sense when considered along with the provisions of sec 25. Although sec 4 taken on its own would require resumption of a part of the common grazings to be treated as a trigger event it is not easy to see that as consistent with the plain intention of secs 24 and 25. We are driven to conclude that we must go behind the literal meaning of the language used in sec 4 in order to produce a workable result consistent with the rest of the Act and the intention of Parliament as derived from consideration of the Act taken as a whole.

[7] It is clear that, if resumption of a part of a common grazings was to trigger registration of the croft land, the owner of the part in question might face an enormous administrative burden in respect of land in which he might well have no interest whatever. The traditional pattern of one estate owning all the individual crofts and the common grazings has long since gone. Many crofts are owned by their occupiers. Many old estates have been split up. Although the drafting of sec 4 is inept, it cannot have been intended that the owner of the grazing part involved should have to take responsibility for all the individual crofts. That view is supported by consideration of Schedule 1 Table 1 which allocates responsibility for first registration in respect of each specific type of trigger event. Responsibility for registration on resumption is to rest with the “landlord making the application”. The owner of the common grazing is not landlord of the common grazings. The person seeking to resume a part may or may not be the landlord of any specific croft. In modern times, with the increase of owner occupied crofts, it is unlikely that he or she would be the landlord of all the crofts. The provisions of Table 1 plainly contemplate their application only to tenanted land or land occupied by an owner.

[8] The practical effect of our conclusion is that resumption of all or part of a common grazing does not trigger any obligation in respect of registration of individual crofts. This means that the present application can proceed without any requirement relating to registration.