Decision of the Scottish Land Court

James Stewart Adam (Applicant) v Richard Twining Sidgwick (Respondent)

Case reference SLC/18/17
before
Lord Minginish, Chairman and John Smith
1 May 2018

NOTE

[1] This is an application by James Adam of Garraron Farm, Ardfern, Lochgilphead (“the applicant”) for an order under sec 14(4) of the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”) modifying an entry in the Crofting Register in respect of a croft known as Woodcroft, Kilvaree, Ardchattan & Muckairn, near Connel, Argyllshire. The respondent is Richard Sidgwick, brother of the late tenant of the croft, who is now tenant in his own right. We heard the application at Connel on 15 March 2018, when both sides were represented by counsel, the applicant by Mr Robert Sutherland and the respondent by Mr Roddy MacLeod.

[2] Before we narrate the evidence led, it is as well to set matters in context by saying that what is now Woodcroft was part of a much larger croft known as 1, 2 & 3 Kilvaree, by Connel, of which the applicant was an owner-occupier. Woodcroft was created, with the consent of the Crofters Commission, as it then was, as a result of an agreement between the applicant and the late Charles Sidgwick arrived at during 2000-2001. It was subsequently agreed that Charles Sidgwick could build a house on the croft and an area of land was sold to him for that purpose by Mr Adam in 2002. However, when Mr Sidgwick died on 28 March 2014 work on the house had still not been completed. Mr Richard Sidgwick is his brother’s executor and therefore responsible for realising the estate for the benefit of the deceased’s daughters. As part of that, and to keep the tenancy alive, he had the tenancy transferred to his own name and, as part of that again, he required to register the croft in the Crofting Register, succession being one of the trigger events for registration listed in sec 4(4) of the 2010 Act. That registration is now challenged as comprising an area significantly larger than was agreed between Mr Adam and Charles Sidgwick in 2000-2001.

EVIDENCE

[3] Only Mr Adam and Mr Richard Sidgwick gave evidence.

James Stewart Adam (45)

[4] Mr Adam explained how he and his family had come to know Charles Sidgwick. He estimated that they had first met around 1990, when Charles was on the staff of the Scottish Agricultural College (“SAC”) at Oban. He spoke of the growth of a close relationship, first professional, then, perhaps from the late 1990s onwards, both professional and personal.

[5] Professionally, Mr Sidgwick had dealt with all official paperwork to do with the Adam family’s land, both the family farm at Kilmelford and land owned by Mr Adam himself, including Kilvaree. He described a very trusting relationship, in which his parents and he had been content to leave all grant applications, IACS (“Integrated Administration and Control System) forms and the like to Mr Sidgwick to deal with. He himself had trusted Mr Sidgwick so much that he rarely bothered to read the documentation he was asked to sign: “Nine times out of ten I would just sign and not check”.

[6] The personal acquaintance had become sufficiently close that when Mr Sidgwick got divorced, in the late 1990s, he not only became a frequent visitor at Mr & Mrs Adam’s home, where the applicant was living at the time – visiting every other weekend for dinner and sometimes staying over – but he lived in rented accommodation owned by them.

[7] It was in that context, with Mr Sidgwick looking for something more permanent, that he had one day – probably in 1999-2000 – asked if there was any possibility of creating a new croft of which he would become the tenant. Mr Adam (the applicant) had bought Kilvaree in 1994 or 1995 and was amenable to letting him have part of that. Mr Sidgwick had already helped him in relation to Kilvaree in as much as he had processed a Woodland Grant application for part of that land.

[8] This agreement was arrived at in the applicant’s parents’ home and on an afternoon some time later he had met Mr Sidgwick at Kilvaree to identify the land which was to be the new croft. The area agreed was between the deer fence which had been erected to protect the area covered by the Woodland Grant Scheme and the road. It did not include any of the land covered by the Scheme but there was a right to draw water from part of that area. Within the area identified as the new croft, Mr Sidgwick had identified the land he wanted to buy for a house site.

[9] Thereafter he had left Mr Sidgwick to do everything that was necessary to create the new croft and to progress the purchase and decrofting of the house site. This included communication with the Crofters Commission, instructing the lawyer who was going to handle the sale/purchase of the house site and negotiating a sec 75 agreement (a reference to that section of the Town and Country Planning (Scotland) Act 1997) with Argyll & Bute Council.

[10] The Woodland Grant Scheme had continued unaffected by any of this. No land was ever removed from it for Mr Sidgwick’s benefit and the annual payments continued to be made to Mr Adam in their entirety until around 2013, when they ended.

[11] Over a year had passed between the meeting on site and the signing of the form sent in to the Crofters Commission. He could not remember where it had been signed but it would either have been at his home or at the SAC in Oban. Nor could he remember the date. Charles had filled in the forms, Mr Adam had simply signed them. He had not read the “Application to Re-let” form (production 1) but he had signed it. There had been no accompanying map. Mr Sidgwick had not shown him production 10, which is a copy of the map showing the area to be let which accompanied the application when it was received by the Commission. He had seen it for the first time two or three years ago. He could not remember receiving production 11 (a letter from the Crofters Commission confirming approval of the proposed let) but agreed that he probably had received it. He explained that “If it came from the Commission I would probably just put it away without reading it”. He had signed production 13 (a form sent to him by the Commission under cover of the foresaid letter for him to complete, confirming that the letting had gone ahead) on 4th March 2002 but he could not remember if it had been filled in before he signed it: he had certainly not filled it in.

[12] He believed he had signed the sec 75 agreement but couldn’t actually remember doing so. It had been a long time ago. He recognised Charles Sidgwick’s Land Certificate (production 5) because he had a copy of it at home. The northeast and northwest boundaries corresponded with the line of the deer fence. Beyond that was the Woodland Grant area. Mr Sidgwick had never had stock beyond the deer fence. A gate had been cut into the deer fence so as to give access to water from a small burn which ran through that area.

[13] Mr Adam had been an infrequent visitor to the new croft, visiting about every six months to check on the woodland. He had taken no interest in Mr Sidgwick’s development of the new croft nor in the building of the new house.

[14] To the north of the woodland area was a derelict 4’ stock fence which had been there since before he had bought Kilvaree. It was shown as the blue line on production 10 (the map sent to the Crofters Commission) but what was outlined in blue on production 10 did not correspond with the outline of the larger subjects drawn in brown on the plan registered in the Land Register and shown as part of Mr Sidgwick’s Land Certificate (production 5).

[15] He had first become aware that the boundaries were not as had been agreed when the Crofting Commission’s reorganisation scheme had got under way, in or around 2014. Of the 19 crofts in this scheme, he was owner-occupier of seven and landlord of two more. He had seen production 43 (the first plan produced in connection with the reorganisation) in 2014. He had asked his solicitor to contest the boundaries shown for Woodcroft. In the end he had decided it was best to let the reorganisation scheme go ahead, and not contest it, knowing that the boundaries of Woodcroft could be sorted out by way of challenge to the entry in the Crofting Register (in other words the present process).

[16] He had not claimed Woodcroft as part of his IACS entitlement. He had only seen Mr Sidgwick’s IACS map (production 44) that morning (we had allowed it to be lodged late). It was dated 20 June 2011 by which time Mr Sidgwick was no longer acting as a consultant on his behalf. That had ended in 2004 or 2005 as a result of a form for his parent’s farm being filled in wrongly by someone at SAC, although not Mr Sidgwick. Since then Mr Adam had used a consultancy in Connel called Agrimoney. He had not been aware that Mr Sidgwick had been claiming Single Farm Payment entitlements for the croft.

[17] In cross-examination Mr Adam accepted that Mr Sidgwick had kept stock on the croft. There was some questioning about the water supply for the house and croft but nothing seems to arise from that. There was also questioning about Mr Richard Sidgwick’s wish, as executor, to buy Woodcroft in conjunction with similar wishes on the part of Mr Birnie (Glenview) and Mr Campbell (no. 10) to buy their crofts on the basis of boundary plans to be agreed by the Crofting Commission. Production 34 is a copy of a letter from Mr Sidgwick to Mr Adam dated 2 June 2014 to that effect. Mr Adam asserted that return of the woodland area to him had been part of those negotiations.

[18] In response to Mr MacLeod, Mr Adam confirmed that at the site meeting to identify the extent of the new croft he and Charles Sidgwick had not used a map. He was unsure as to how big, in terms of acreage, Woodcroft was intended to be. He had not entered hectareages on any of the documents, he had merely signed them, trusting Charles Sidgwick “100%”. He repeated that he would have received production 12, the note of the Commission’s decision, but he had not read it through because he knew Charles was getting the croft and that it was all sorted.

Richard Twining Sidgwick (73)

[19] Mr Sidgwick is a retired Chartered Surveyor who lives at Achnacary, Spean Bridge, some 70 miles or so from Connel. It is possible to state his evidence much more shortly, since he was not, of course, a party to any agreement about the Woodcroft boundaries.

[20] He described his relationship with his late brother: close, they would see each other four or five times a year and phone each other every second Sunday. His brother had been a man of probity, who had worked with the SAC for 32 years, most of that time in Oban, and was well liked and respected by staff in that office, the farmers and crofters with whom he had dealt and, more recently, his neighbours at Kilvaree.

[21] Otherwise, Mr Sidgwick’s evidence was mostly to do with his handling of his brother’s affairs following his sudden death from a very aggressive cancer. He had taken possession of his brother’s papers, which had been kept in good order. His priority was to realise the estate for the benefit of his late brother’s daughters. That involved finishing the house so that it could be sold. It had been 80% complete at the time of his brother’s death. A major stumbling block was, and continues to be, Mr Adam’s refusal to grant a wayleave for an electricity supply. Production 34 (the letter to Mr Adam suggesting terms for the purchase of Woodcroft and Mr Birnie’s and Mr Campbell’s crofts dated 2 June 2014) had been part of an attempt to get round that.

[22] He had registered the croft in the Crofting Register on the basis of consistency between the areas stated and shown on the application to re-let, his brother’s IACS documentation, and the Crofting Commission’s reorganisation scheme. He had offered to do a deal with Mr Adam whereby he (Mr Sidgwick) would agree to give up part of that land in exchange for an electricity wayleave but had then realised it was not in his gift to change the boundaries of his croft.

Credibility and reliability

[23] There is clearly a problem with Mr Adam’s credibility and reliability given the conflict between his position in this litigation and some of the documents to which he put his hand when the agreement with Charles Sidgwick was entered into. For reasons explained below we have preferred the documentary evidence.

[24] On the other hand, we have no difficulty in accepting Richard Sidgwick as an entirely credible and reliable witness. He struck us as a thoroughly honourable and truthful man whose only concern was to complete the administration of his brother’s estate for the benefit of his nieces.

FINDINGS IN FACT

[25] We have made the following findings in fact:

(i) In or around 1995 the applicant bought and became owner-occupier (at least in the sense that he did not have a tenant) of a large croft called 1, 2 & 3 Kilvaree.

(ii) For a number of years before that Charles Sidgwick, who was an Agricultural Adviser and Rural Property Consultant in the SAC in Oban, had assisted the Adam family, by which we mean the applicant’s parents and the applicant, in relation to the paperwork for their farming activities.

(iii) In that capacity, in 1996 or 1997 Mr Sidgwick assisted Mr Adam (the applicant) in applying for and obtaining a grant under the Woodland Grant Scheme for the northern half of 1, 2 & 3 Kilvaree and the relevant area was subsequently planted and deer fenced by Mr Adam.

(iv) By that time Charles Sidgwick had become a friend of the Adam family and would, from time to time, visit their home in Ardfern for dinner or to stay.

(v) In the course of such a visit sometime in 2000 it was agreed that Mr Adam would let part of 1, 2 & 3 Kilvaree to Mr Sidgwick.

(vi) Some time later, on an unidentified date, Mr Adam and Mr Sidgwick met on site to discuss and identify the extent of the ground to be let.

(vii) In October 2001 an “Application to Re-let a Croft” (production 1) was completed by Mr Sidgwick, signed by him on 11 October and by Mr Adam on 12 October, and sent to the Crofters Commission on the latter date. A covering letter from Mr Sidgwick explained that, despite the title of the form, the application was probably better described as an application “to divide an existing croft and let one of the areas to me as a new crofting tenant”.

(viii) This form gave the extent of the whole croft (i.e. 1, 2 & 3 Kilvaree) at 88.50 ha and the area to be “re-let” as 4.50 ha and was accompanied by a plan outlining (unmeasured) the boundaries of the area to be let and of the larger subjects, 1,2 & 3 Kilvaree, of which it was part.

(ix) On 29 January 2002 the Crofters Commission wrote to Mr Adam (production 2) informing him that his application for consent to “re-let” the croft to Mr Sidgwick had been approved, explaining that it had been treated as an application under sec 23(3) of the Crofters (Scotland) Act 1993 (“the 1993 Act”) (i.e. as an application to let a croft or part of a croft) and enclosing a form which Mr Adam required to complete and return. That form stated the rent to be £100 p.a., gave the name of the croft as “Woodcroft”, its SEERAD (Scottish Executive Environment and Rural Affairs Department) Code No as 169/0221 and the start date for the tenancy as 1 February 2002. It was completed and signed by Mr Adam on 4 March 2002 and returned to the Crofters Commission.

(x) As the quotation of a SEERAD reference number on the return form shows, by January 2002, Woodcroft had come to be on the Scottish Government’s records for IACS purposes in its own right. Production 44, lodged by the respondent, is a copy of the relevant Scottish Government map, dated 20 June 2011, showing it to comprise three land parcels, totalling 4.55 ha. This hectareage and the plan correspond, nearly enough, to the information and plan submitted to the Crofters Commission in October 2001. We infer that it was Mr Sidgwick who arranged for this as he was certainly the person who held Single Farm Payment Scheme entitlements in relation to it (see the letter from Ms Valerie Blackie of SEERAD to Mr Sidgwick dated 27 January 2006, production 45).

(xi) Payments under the Woodland Grants Scheme, which continued annually until at least 2013, were at all times received by Mr Adam, not Mr Sidgwick, notwithstanding that part of the land covered by the scheme (land parcels 2 and 3 on production 44, totalling 2.70 ha) was now part of Woodcroft.

(xii) Shortly after the letting had been approved by the Commission Mr Adam agreed to sell a plot of land on the new croft to Mr Sidgwick for the purpose of building a house. Production 5 is a copy of the Land Certificate giving effect to this, dated (first registration) 31 December 2002. The title plan shows the subjects disponed within a much smaller area than that shown for Woodcroft on the plan submitted to the Crofters Commission. The area shown accords with what Mr Adam says is the correct area of the croft.

(xiii) As part of the process of obtaining planning permission for building a house, Mr Sidgwick and Mr Adam required to enter into an agreement with Argyll & Bute Council under sec 75 of the Town and Country Planning (Scotland) Act 1997 undertaking that the site to be developed would never be sold independently of the rest of the croft. This agreement, registered in the Land Register on 2 June 2003 is referred to in the Burdens Certificate of Mr Sidgwick’s Land Certificate, where Woodcroft is described as being edged brown on the title plan.

(xiv) In or around 2004 or 2005 there was a parting of the ways between Mr Adam and the SAC as a result of someone (not Mr Sidgwick) having “filled in the wrong form”. Thenceforth Mr Adam used a consultancy known as “Agrimoney”, which has an office in Connel, for the sort of work SAC had formerly carried out.

(xv) Having bought the site as aforesaid, Mr Sidgwick began work on the erection of the new house, largely doing it himself.

(xvi) Mr Sidgwick died on 28 March 2014.

(xvii) The present respondent is, along with a solicitor, his brother’s executor- nominate and the tenancy of Woodcroft was transferred to him with effect from 7 March 2016.

(xviii) Richard Sidgwick required to enter into an agreement with Argyll & Bute Council (production 42) to the same effect as the one his late brother had signed but Mr Adam was not a party to that agreement.

(xix) Around the time of Charles Sidgwick’s death the Crofting Commission, as the Crofters Commission had by then been renamed, began work on a reorganisation plan for the Kilvaree crofts. Production 43, dated 13 February 2014, is the earlier of two maps produced in relation to this scheme and the other, production 15, dated 25 January 2016 is the scheme as finally approved by the Commission. The first shows Woodcroft under the name Sidgwick extending to 4.581 ha and the latter 4.457 ha. Both show the boundaries of the croft to be, nearly enough, the same as intimated to the Crofters Commission in October 2001. Richard Sidgwick was not permitted by the Commission to take part in this process as his title at the time was only that of an executor. However, the boundaries of the crofts created around Woodcroft, from what had been 1, 2 & 3 Kilvaree (and all, therefore, owner-occupied by Mr Adam) were entered on the final, agreed, map with Mr Adam’s knowledge but without challenge as to their accuracy.

(xx) Woodcroft, under deduction of the area sold to Charles Sidgwick in 2002, was registered in the Crofting Register by the respondent on 17 May 2016. Production 3 is a copy of the relevant entry. The area registered, in terms of the registration map is the same as was shown on the map submitted to the Crofters Commission along with the application to let in October 2001.

Submissions

For the applicant

[26] Mr Sutherland submitted that what the Court had to decide was whether the boundaries for the croft Mr Adam had agreed to create should be the ones shown on the title plan in the Land Certificate or the ones registered in the Crofting Register.

[27] The respondent’s pleadings were wrong where they suggested that the application to re-let superseded the original agreement between Mr Adam and Mr Sidgwick. There was only one agreement and the letting application was merely an administrative step which was necessary to give it effect.

[28] The sec 75 agreement pre-dated the entry in the Crofting Register and was an official document which Charles Sidgwick had been willing to sign. It showed croft boundaries conform to what Mr Adam said had been agreed.

[29] It was also relevant to bear in mind the situation on the ground: bare land with virtually the only distinguishing feature being the deer fence. One could tell by looking at it that the fence had been there for a considerable number of years and it was a very obvious feature to use as a boundary. Instead of that, the line Charles Sidgwick had followed for the northern boundary was the line of a much older and now derelict fence. If that area was to be included one would have expected references to land being taken out of the Woodland Grant Scheme but there was no mention of that. The only incursion into the woodland was the rectangle on the eastern boundary which had been fenced off to give access to water.

[30] Neither counsel nor his client could fathom why Mr Sidgwick would have wanted the larger area of woodland to the north, which would require a lot of expensive fencing. Moreover, notwithstanding the apparent inclusion of woodland, the application to re-let form described the croft as “bareland”.

[31] Mr Sidgwick must have been aware of the difference between what had been submitted to the Crofters Commission and what had been submitted to the Land Register. Regrettable though it was to say it, the only explanation which made sense was that what was done was done deliberately, to mislead the Commission as to what had been agreed. There was no scope for misunderstanding. Mr Adam had said that the boundary was the deer fence. It would be hard to get that wrong and, if the boundary was to extend beyond the deer fence, there would have had to be agreement as to what was to happen to the woodland and the relevant area would have to be fenced off if the intention was to put stock into it.

[32] It had been in the context of the reorganisation scheme that Mr Adam had become aware of the inconsistency but he had explained why he had not challenged things at that stage.

[33] At this point Mr MacLeod intervened to say that an argument on personal bar contained in the pleadings was not to be insisted upon, so it was unnecessary for Mr Sutherland to address that. Likewise Mr Sutherland dispensed with authorities on fraud, error and misrepresentation with which he had come armed in anticipation of arguments on these matters. This was not a contract induced by fraud. Mr Adam had been quite happy to enter into a contract. Any fraud came later, in the form of a fraud on the Crofters Commission as to what had been agreed.

For the respondent

[34] Mr MacLeod provided a written note of argument. His motion was for dismissal of the application, which failing the making of no order under sec 14(4)(c) of the 2010 Act.

[35] It was accepted that some aspects of the applicant’s evidence as to his discussions with Charles Sidgwick could not be challenged due to Mr Sidgwick’s death. Nevertheless the following facts provided a basis for holding that the entry in the Crofting Register was correct:

(i) The applicant was an experienced man engaged in extensive farming and commercial activities.

(ii) The area for the intended croft – 4.50 ha – was stated on the form signed by the applicant, evidently on the day after it had been signed by Mr Sidgwick.

(iii) Mr Sidgwick had been acting in a personal, not professional, capacity in acquiring the tenancy.

(iv) The Commission had sent the applicant a note of their decision which again gave the extent of the croft as 4.50 ha and referred to a small area of land (the rectangular area on the eastern boundary) being taken out of the Woodland Premium Scheme for a water supply.

(v) The Commission’s reorganisation maps showed the extent of the croft to be 4.581 ha.

(vi) With reference to the deer fence being an obvious boundary feature, there was another boundary – the dilapidated fence – which the plan submitted to the Crofters Commission followed.

(vii) We should draw an unfavourable inference from the lack of vouching of Mr Adam’s previous dealings with Mr Sidgwick and of the Woodland Grant Scheme.

[36] Mr MacLeod emphasised the difference between Mr Sidgwick acting in a professional capacity and Mr Adam not checking documentation produced in that capacity, on one hand, and him acting in a personal capacity, where the two parties were contracting with each other and Mr Sidgwick could not be said to be acting for Mr Adam, on the other.

[37] There was no cogent explanation as to why Mr Sidgwick would have acted fraudulently by including a larger area of land. There was no reason to do it because (a) there was a water supply available on the smaller area contended for by Mr Adam and (b) there was no clear benefit in having the area to the north, given its terrain and the habitat it offered. Moreover the information stated in the application to the Commission and in their Notice of Decision provided a complete answer to any suggestion that Mr Sidgwick had deliberately concealed what he had done. Moreover the IACS form and plan was a publicly available document recording the extent of land claimed by Mr Sidgwick. We should not find that Mr Sidgwick had acted fraudulently when he was not here to give his version of events.

[38] On a matter of credibility, there was a distinction between the applicant’s pleadings, which predicated the agreement with Mr Sidgwick on a map or plan, and his parole evidence, in which he denied that a map or plan had been used.

[39] Mr MacLeod made submissions in relation to the house site. The title plan and Land Certificate were definitive only of the house site and associated rights, not the extent of the croft. There was an obvious inconsistency between the croft boundary shown there and that shown on the plan submitted to the Commission and, also, on the Commission’s reorganisation plans. We should prefer the latter.

[40] We should attach significance to the fact that Mr Adam had not challenged the reorganisation plans in either their original or final forms (there is little difference between them so far as Woodcroft is concerned). The disputed areas were surrounded by land belonging to him, so the reorganisation affected his interests very directly, yet he had not objected to the scheme at any stage. He had therefore foregone what would have been his primary remedy if he wanted to challenge the boundaries of Woodcroft. Reference was made to the statutory provisions relating to reorganisation at sec 38 and 38A of the 1993 Act. Given the rights to make representations in the course of the reorganisation process contained in sec 38 and the right of appeal against the final scheme contained in 38A, it would be contrary to the purpose of such schemes that parties be given a subsidiary or secondary opportunity to challenge the outcome. Reference was made to what had been said by the court in Luty v MacLeod (SLC/117/17, unreported decision of 19 December 2017) at para 15 about the introduction of the Crofting Register having been intended to make life easier for crofters by establishing definitively the location of croft boundaries. The consequence of all of this was that we should use the discretion given to us in sec 14(4) of the 2010 Act to make no order, thus leaving the entry on the Crofting Register unchanged.

Response by Mr Sutherland

[41] In a brief response Mr Sutherland made the following points:

(i) Mr Adam had given his explanation as to why he had been unaware of what the documentation submitted to the Crofters Commission, or received from them, said and it was for the court to decide whether that explanation was credible and reliable.

(ii) It was too late now to complain of lack of vouching in relation to the Woodland Grants Scheme: its existence had never been disputed and if vouching was important it should have been called for earlier.

(iii) Given that we were dealing with events 18 years ago which had only become contentious four years ago, it was not surprising that Mr Adam’s recollection was not clear and that fact did not, therefore, give rise to doubt as to his credibility.

(iv) The distinction between Mr Sidgwick acting in a professional capacity and in a personal one was false: he did not lose knowledge which he had gained professionally “when he took off his SAC coat”.

(v) The IACS documentation was evidence of land occupation, not croft boundaries, and, in this case, was in any event false because field parcels 2 and 3 had not in fact been occupied by Mr Sidgwick.

Discussion and decision

[42] The question we have to decide is what was let by Mr Adam to Mr Charles Sidgwick with effect from 1 February 2002. We approach that task by considering first the documentary evidence and then, against that background, the parole evidence already narrated.

Documentary evidence

Crofters Commission application

[43] The obvious starting point is the documentation signed at the time. It comprises (i) the application to re-let (as it was erroneously entitled) form (production 1) and map (production 10) submitted to the Crofters Commission under cover of Mr Sidgwick’s letter of 12 October 2001, (ii) the reply from the Commission, directly to Mr Adam as the applicant for consent, dated 29 January 2002 (production 2) and (iii) the “Notification to Crofters Commission of Re-let” signed by Mr Adam on 4 March 2002 and thereafter sent to the Commission.

[44] Leaving aside the map, which Mr Adam denies having seen at that point, that documentation tells us that consent was obtained for the letting of 4.50 ha of land at Kilvaree (SEERAD code number 169/0221) to Mr Sidgwick at a rent of £100 per annum. The Notice of Re-Let is confirmation by Mr Adam that the letting has gone ahead (see the Commission’s covering letter of 29 January 2002). On the face of it, therefore, Mr Adam let to Mr Sidgwick an area of ground of that extent, whether or not he had seen a plan showing where that ground was.

The Land Certificate

[45] Mr Sidgwick’s title to his house site was registered in the Land Register on 31 December 2002. That must have been without reference to the section 75 agreement, which came later, and, on its own, this document does not tell us much. Neither party is a signatory to it but their instructions must have been taken by the solicitor or solicitors who acted in the transaction. For what it’s worth it shows the house site and access road within a larger area edged in brown which corresponds to what Mr Adam says the croft boundaries are. The written description in the Property Section makes no reference to the brown edging, merely saying that the subjects are part of a new croft at Kilvaree.

The section 75 agreement

[46] Although the substance of the section 75 agreement is set out in the updated Burdens Section of the Land Certificate, while the case was at avizandum we decided we should ask to see a copy of the agreement itself, for what it might tell us about the circumstances in which it was signed. That was kindly obtained for us by the applicant’s solicitor, Mr Manson. It was signed by Mr Adam and Mr Sidgwick on the same date, 13 March 2003, although not together. It has appended to it an unsigned sheet with a location plan in the top half and a plan of the subjects in the bottom. The latter shows a thick black line labelled as the “croft boundary” encompassing an area less than half that shown on the plan sent to the Commission in 2001 and corresponding, nearly enough, to what the applicant says the true extent of the croft is. So here we have Mr Sidgwick putting his signature to something which incorporates a plan which is markedly at odds with what he had submitted to the Commission some 17 months earlier.

The IACS documentation

[47] Production 44 is a copy of the late Mr Sidgwick’s IACS map for location code 169/0221 (the same as the SEERAD code on the Crofters Commission correspondence). It corresponds closely enough to the map submitted to the Commission, although at 4.55 ha (with the house site already removed) it is somewhat larger, which may simply be the result of more accurate measurement. This correspondence in size is hardly surprising since the plan would have been based on information supplied to the Scottish Government by Mr Sidgwick. We are not clear as to whether Mr Adam claimed Single Farm Payment on the basis of entitlements matched to the rest of the land he owned and occupied at Kilvaree but we do know that he didn’t claim on any of this land.

The reorganisation maps

[48] There are two of these, productions 15 and 43. The latter version is chronologically the first. It was produced on 13 February 2014 and gives an area of 4.581 ha for Woodcroft, whereas the former, dated 25 January 2016, gives an area of 4.457 ha. We know little of how those maps were put together although it is reasonable to infer, since the reorganisation was at the instance of the Commission, that they would have begun with information on their own records, which would have included the documentation sent in by Mr Sidgwick in October 2001. What is clear, however, is that Mr Adam was fully aware of the contents of both plans but challenged neither.

The entry in the Crofting Register

[49] The croft was registered on 17 May 2016 by Mr Richard Sidgwick. Production 3 is a copy of the entry. No area is given but the outline conforms to what was shown on the earlier documentation, save the title plan and sec 75 agreement. Again, that is not surprising given that Mr Sidgwick was using the earlier plans which he had found among his brother’s papers.

Parole evidence

[50] We have narrated Mr Adam’s evidence above. He explained his failure to realise the purported extent of the new croft by saying that he trusted Mr Sidgwick and therefore didn’t read the documentation. He explained his failure to challenge the reorganisation scheme by saying he didn’t want to delay it for everyone else.

[51] We do not find either explanation persuasive. It almost beggars belief that someone would treat something as important as this in the way Mr Adam claims to have done. But if it is true that he did not read the documentation and did not understand that he was agreeing to the letting of 4.50 ha of his ground in perpetuity (in effect) as a new croft, we do not think he should be relieved of the consequences of his failure. The whole point of signing documentation is that one takes responsibility for it and if one does so without reading it one can hardly complain about the consequences.

[52] We are similarly unimpressed with the failure to challenge the reorganisation scheme. The statute lays out quite an elaborate process for these schemes, with plenty of opportunity for everyone with a relevant interest to have his say. The whole point is that they are adjusted over a period of time, sometimes years, with a view to coming to an agreed, universally acceptable, position. Had Mr Adam voiced his concerns in 2014 they could have been resolved, if necessary after appeal to this court under sec 38A of the 1993 Act, by the time the final scheme came to be agreed in 2016 and there would have been no significant delay above and beyond the timescale taken by such other changes as required to be accommodated.

[53] All of that said, there are adminicles of evidence which support Mr Adam’s position. One is that it would indeed have been natural to use the deer fence as a boundary. Another is that it is hard to figure why parties would include in the agreement part of a woodland which was subject to a grant scheme in Mr Adam’s name and in respect of which he was to receive income for years to come. But that argument can be turned the other way. It is hard to fathom what Mr Sidgwick would have to gain by claiming this area by stealth. He never used it. He didn’t stand to make a penny from the grant scheme and, as a mature woodland, grazing would be limited although it would provide useful shelter.

[54] We also acknowledge that it is not only on Mr Adam’s side that there are inconsistencies of behaviour. On Mr Sidgwick’s side there is his apparent agreement in terms of the section 75 agreement that the boundaries of the croft were very different from the ones he had submitted to the Crofters Commission. The trouble is that, unlike Mr Adam, Mr Sidgwick is not here to give an explanation and in that situation we would need compelling evidence to make us think the worst of him.

[55] On the whole matter, therefore, although we, like counsel, have found it impossible to make everything fit together – there are inconsistencies and inexplicabilities whichever way one looks at it – we conclude that the best evidence of what was agreed was that to which Mr Adam put his hand in October 2001 and again in March 2002 when he confirmed to the Crofters Commission that he had let an area of 4.50 ha to Charles Sidgwick.

[56] Accordingly we dismiss the application.

Expenses

[57] We have allowed 21 days for motions and submissions on expenses.