THE COURT

(Lord McGhie, Mr J A Smith)

SORBIE v KENNEDY

(Application SLC 225/05 – Order of 23 October 2014)

CROFTING – COMMON GRAZING – RESUMPTION – STATUS OF OWNERS – WHETHER TO BE REGARDED AS LANDLORDS – STATUTORY CONSTRUCTION – STATUTORY DEFINITIONS – INTENTION OF PARLIAMENT - CONTEXT – ESTABLISHED MEANING – USAGE – CROFTERS HOLDINGS (SCOTLAND) ACT 1886 Sec 2 - CROFTERS (SCOTLAND) ACT 1993 Sec 20, 21.

The applicant applied to the Court to authorise resumption of a piece of ground at the back of her cottage in Arinagour, Coll, to be used for a kitchen and bathroom extension and a drying green. She was not a crofter and the cottage had never been a croft. The ground was part of the common grazings. Progress of the case was greatly delayed by her difficulty in establishing her title. However, ultimately the application was only opposed on the basis of a challenge to competency. It was contended that she was not properly to be regarded as a “landlord” within the scope of sec 20 of the 1993 Act.

HELD that it was plain that Parliament intended sec 20 to allow land forming part of a common grazing to be resumed by the owner and must have regarded “landlord” as applying to such an owner although the rights of the graziers were not properly to be seen as held in tenancy.

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

The applicant applied to the Court to authorise resumption of a piece of ground at the back of her cottage in Arinagour, Coll, to be used for a kitchen and bathroom extension and a drying green. She was not a crofter and the cottage had never been a croft. The ground was part of the common grazings. The case was protracted because of her difficulty in establishing a good title to the land. After she obtained title, a hearing was fixed to deal with various objections by Mr Kennedy, who is one of the grazing shareholders.

On the morning of the hearing in Oban, Mr Kennedy conceded that the purpose for which resumption was sought was reasonable. The parties were able to agree a suitable area of ground and the financial consequences, if the application was competent. They reached agreement about expenses. However, Mr Kennedy maintained his challenge to the competency of the resumption and we heard parties in debate on the issue. Mr Iain Maclean, advocate, appeared for the applicant and Mr Robert Sutherland, advocate, for the respondent.

Authorities cited

Abel v Lee (1871) LR 6 CP 365
Castle v Philp 2009 SLCR 21
Crofters Commission v Arran 1997 SLT (Land Court) 22
Duke of Sutherland v Matheson 1917 5 SLCR 13
Harvey v Mactaggart & Mickel Ltd 2000 S.C. 137
Highland Regional Council v Kylesku Common Graziers 1985 SLT (Land Ct) 21
Mackenzie v Barr’s Trs 1993 S.C. 472
McMillan v Inverness-shire County Council 1949 S.C. 77
Reference by the Crofters Commission 2012 SLCR 159
Ross v Graesser 1962 SC 66
Salisbury Independent Living Ltd v Wirral MBC [2012] PTSR 1221
Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231
Trs of Tenth Duke of Argyll v MacCormick 1991 SLT 900
Urras Oighreachd Ghabhsainn v Crofters of South Dell 2014 SLT 609
Wester Ross Salmon Ltd v MacLean 1986 SLT (Land Ct) 11

Text Book material

Bennion, Statutory Interpretation 6th Ed.
Sir Crispin Agnew Crofting Law

Statutory material

Crofters Holdings (Scotland) Act 1886
Crofters (Scotland) Act 1955
Crofters (Scotland) Act 1993
Crofting Reform etc. Act 2007
Crofting Reform (Scotland) Act 2010

Relevant provisions

The debate turned on the scope of sec 20 of the 1993 Act, the relevant part of which is in the following terms:

“(1) The Land Court may, on the application of the landlord and on being satisfied that he desires to resume the croft, or any part thereof, [for a reasonable purpose] authorise the resumption thereof.”

Reference was made to various other provisions which we mention in the discussion below. It is convenient at this point to set out the relevant definitions in sec 3 and 64.

In terms of sec 3(4), for the purposes of the Act,

“(a) any right in pasture or grazing land held or to be held by the tenant of a croft, whether alone or in common with others, and

(b) any land comprising any part of a common grazing which has been apportioned for the exclusive use of a crofter under section 52(4) of this Act …

shall be deemed to form part of the croft.”

Section 61 provides definitions of various words used in the Act “unless the context otherwise requires”. It provides that “landlord” means –

“(a) in relation to a croft, any person for the time being entitled to receive the rents and profits, or to take possession of, the croft”.

It was not disputed that the applicant did not fall within that definition.

Although the application had been raised before the enactment of the 2007 and 2010 Acts, counsel were agreed that it was proper to have regard to these Acts in our determination of the matter.

Submissions

[1] Both counsel presented full written submissions, copies of which are held by the Court. It is unnecessary to attempt a detailed summary. In short, Mr Sutherland contended that as Mrs Sorbie was not a landlord of the common grazing land in question, the resumption was outwith the scope of sec 20. He acknowledged that the Court had expressed a contrary view in the Reference by the Crofters Commission 2012 (at [10]) but submitted that as the point had not been fully argued it should be reconsidered. We accepted that. He referred to the definition in sec 61. He submitted that all that could be resumed was croft land and that was defined in sec 3(4). The Act was designed for the protection of crofters and there was no other basis for resumption. Mr Maclean contended that having proper regard to the whole context it was plain that the intention of Parliament was that the provisions of sec 20 were wide enough to cover applications by owners of common grazings.

Discussion

[2] There is clearly some force in the points made by Mr Sutherland and if we had been dealing with a new piece of legislation we would have had greater difficulty. However, in light of the history of the current legislation and the need to construe sec 20 in light of the related provisions of sec 21, we have no doubt that Parliament intended owners of common grazings to be able to recover the relevant parts of their land, free from the rights of crofting tenants. Owners of grazings have, for many years, routinely been referred to as “landlords”. This may have arisen from a casual view that as the right to use of their land is effectively governed by the crofting tenure of the graziers, they are in practical terms to be seen as landlords or it may have arisen from a misunderstanding of the legal basis of the common grazings. It may well be that Parliament originally proceeded on an assumption as to the nature of crofters’ rights in common grazing land, treating them as being of the nature of a tenancy. Implicit in the respondent’s argument was an assumption that the statutory provisions fell to be construed in light of the modern view of the nature of the relationship of parties to common grazings. We are satisfied that the role of the Court is to give effect to the intention of Parliament at the time of enactment as expressed in the language used, due regard being had to the context. In other words, the provisions are to be construed in light of the understanding Parliament can be taken to have had when the legislation was passed. Part of the context would be Parliament’s understanding of the common usage. But, in any event, we consider that, taken in context, the language of sec 20 can be understood in a way which gives effect to the scheme of allowing land to be freed from crofting tenure where this is for a reasonable purpose and allows the other provisions of the Act to operate sensibly. We accept that this approach does not sit entirely happily with the definitions provided in other parts of the Act but a strict construction would prevent or greatly reduce the scope of resumption in relation to common grazings and would tend to deprive some provisions of effect. The broader approach is consistent with what the section has always been understood to mean.

[3] Mr Maclean cited our observations, at para [4], in Urras Oighreachd v Crofters of South Dell as to the proper approach to construction. We need not repeat that material but stress the need to have regard to the context of the Act as a whole.

[4] The submissions focused on the scope of the word “landlord” in sec 20. It was not disputed that the owners of common grazing land were not properly to be described as landlords within the meaning of sec 61. However, the definition given in that section was subject to the context and we do not think that there is any warrant for the proposition that it was intended to govern sec 20. On the other hand, it can certainly be said that Mrs Sorbie was not a landlord of the land in question in the normal legal sense of the term as a party to a lease of some sort. The grazing shareholders in a common grazings do not hold the land in tenancy and it would follow that the landowner is not strictly to be described as a landlord. Further, although the focus of debate was on the word “landlord”, it appeared that there was another potential problem because the section only permits resumption of a “croft or part of it” and, strictly speaking, it is not the land in the common grazings which is part of the croft but the grazing rights: sec 3(4)(a). It may also be said that the very word “resume” in its strict sense is normally applied to a lease. The landlord takes back what he has given in the lease. Accordingly, there was a superficial substance in the challenge to competency. However, considered in light of its full context we are satisfied that the better view is that sec 20 can properly be construed in a way which gives effect to the underlying intention.

[5] A construction of sec 20 as wide enough to allow resumption of land forming part of a common grazing is strongly supported by the direct context. Section 20(4) makes express reference to an application “for authority to resume any land forming part of the common grazing”. This plainly shows an intention that applications could be made to resume the land forming part of a common grazing and such an application could only make sense if made by the owner of the land. It is also clear that secs 20 and 21 are intimately related. Section 21(4) deals expressly with the situation where the “land so resumed forms part of a common grazing” and plainly the section envisages resumption of land from a common grazing and not just resumption of any grazing rights held by a crofter. The provisions for share of market value of the land make that clear. In Mackenzie v Barr’s Trs. the court observed that “It is the residue attributable to the landlord’s interest in the land as owner … which is the subject of sharing between the landlord and the crofter”. It is plain that the word landlord in that context is being used in reference to the owner of the common grazings and equally plain that the crofter is not to be limited to a share of the market value of his grazing right. These provisions would be of no effect if it was not possible to resume land from a common grazing.

[6] In the 1993 Act, before amendment, various provisions relating to common grazings referred to “landlords” in a context where the intention was unmistakeably to refer to the owner of the grazing land. In sec 50 there were provisions dealing with the need for the consent of the “landlord of the common grazing”. In other words, having regard to the Act as a whole, there is no difficulty in treating the word “landlord” as intended to cover the owner of lands subject to crofters’ grazing rights as well as owners whose lands were subject to a full croft tenancy.

[7] Although the understanding that a common grazing is not held in tenancy has become accepted in recent years there is no doubt that such grazing is subject to “crofting tenure” in the broad sense of the term. The precise legal nature of crofters’ interests in common grazings has for long been a source of difficulty and potential confusion. A comment of Lord President Cooper in McMillan v Inverness-shire County Council may be noted. He was discussing the question of intimation of a proposed compulsory purchase of land which was part of a common grazing. He observed:

“Now this appellant is neither owner or lessee of Corpach Moss or any of the holdings affected by the Order. The grazing right which she, in common with an unknown number of other landholders in the five townships, enjoys is not separately registered in the Valuation Roll. I have some difficulty in assigning that right to any recognised legal category. It looks like a servitude of pasturage; but, as both the dominant and the servient tenements are in the same ownership, it cannot be that. It also looks like a species of commonty; but as the landholders are not heritors, it cannot be that. By virtue of section 26 of the Small Landholders (Scotland) Act 1911, such rights to pasture or grazing land are deemed to be included in the holding, but only for the purposes of the Landholders Acts. This doubtless means that the rent of each holding contains a latent ingredient to cover the grazing rights; but except in relation to the Land Court and its jurisdictions, the provision has no further or other effect.” : at page 86. It was held that there was no need to give notice to grazing shareholders.

[8] We discussed the nature of the crofters’ interests in grazings in some detail in Crofters Commission v Arran and the issues were considered further in the Reference in 2012 and in Castle and ors v Philp. It is clear from these cases that, on a proper view, the crofters are not tenants of the grazings. They hold their shares as part of their croft tenancies. This point was not in dispute before us – indeed it was treated as the root of the problem. It may be said that, since the Arran decision, we have become aware of a great deal of material in reported cases and in Court processes using terminology which appears to show both lawyers and laymen treating common grazings as being held in tenancy. The term “landlords” has long been in regular use to refer to the owners of grazings: see comment in Castle and others v Philp at [22]. Arrangements are often made to share rents between the in-bye landlord and the grazing owner. In a typical common grazing, most shareholders hold their rights to graze as part of a tenancy of their in-bye crofts although it is not uncommon to find grazing shareholders who do not hold any croft in tenancy. People who have bought their crofts often continue to hold shares. Shares may be held by the landowner. It can fairly be said that where there is a tenanted croft the landlord of the croft will usually also be the owner of the common grazings though this is far from invariably so.

[9] It is not difficult to find examples of lawyers and legislators using the term “landlord” when strictly they meant the owner of the grazings. Mr Sutherland in his written submissions in the present case described the Executors of the late Charles Kenneth Moncrieff Stewart as “the landlord of the common grazings”. Many examples can be found in reported cases of references to landlords of common grazings in a context where the applicant’s interest was simply as owner. An example, shortly after the 1912 Act related to the golf course at Brora: Duke of Sutherland v Matheson. There had been a similar example in relation to Stornoway golf course shortly after the 1886 Act. As far as we are aware, it can also be said that all resumption cases relating to common grazings have borne to be about resumption of the land rather about any concept of resumption of grazing rights by the landlord of any croft. In Highland Regional Council v Kylesku Common Graziers and Wester Ross Salmon Ltd v MacLean the common grazing owners as applicants are referred to through as “landlords” although it is clear that they were applying as owners of the pieces of land in question and not as landlords of the whole estate. The case of Mackenzie v Barr’s Trustees is of particular interest because the Court was addressing the specific problem of whether minerals were part of the croft while tacitly accepting that the common grazings land under which the minerals lay was part of the croft. It plainly never occurred to anyone to question the competency of such an application. The dispute was over the question of whether the value of the underlying minerals was to be included as part of the value for the purposes of what is now sec 21.

[10] In Castle and Ors v Philp the theoretical distinction between the rights over the land and the land itself was referred to. At para [14] we find the observation that “when a Court orders resumption from common grazings, what is truly being resumed is the crofter’s grazing rights over that land; the land is not being resumed from the tenancy, rather the rights to graze over it are being resumed from the tenancy of the individual crofts.” Mr Maclean challenged the accuracy of that comment. The owner of the grazings was not seeking to resume the rights which went with the tenancy but was seeking to free the land itself. The landlord of an individual croft might have a separate interest in resuming the grazing rights from the tenancy. Mr Maclean’s analysis seems sound but, in the present context, the significance of the observation is that it points to the room for confusion as to the underlying analysis of legal rights. The legal distinction between rights over land and the right in the land itself was expressly recognised by Lord Clyde in the Trustees of the Tenth Duke case. He plainly was of the view that the distinction was irrelevant in the context of the resumption provisions: “It has not been suggested that although all that the tenants here have is a right in grazing land the case should be treated as different from a case of the resumption of any crofting land.” page 907 G

[11] We recognise that in none of the reported cases was there any overt dispute about the scope of the provisions of sec 20 or its predecessors and accordingly, the cases can only be used to show the practice rather than as direct authority for the proposition that an application by an owner of common grazings is covered by the section. However, the cases are indicative of the clear understanding of the profession of what Parliament intended sec 20 to cover. To the best of our knowledge, the present is the first case in which that understanding has been challenged. It may be noted, in passing, that there have been several authorised resumptions from the Arinagour common grazings in which the present respondent has been a party, including those involving the neighbours on each side of Mrs Sorbie, and which proceeded on the basis of the long understood construction of the section.

[12] The well-established understanding of the scope of sec 20 and the absence of any attempt to amend it in 2007 when there was a very considerable revision of the whole provisions of the 1993 Act, confirm that the intention of Parliament was to treat the word “landlord” as applicable to the owners of the common grazings and the croft rights in the grazings as covering the land itself for the purposes of the section. We are satisfied that that is the clear inference to be drawn although Parliament can be seen to have tried to correct its description of the nature of interests in common grazings. In sec 26 of the 2007 Act provision was made for the term “landlord” in sec 50 to be replaced by “owner”. There is no indication that this was because of any intended change of policy and it can be seen as no more than an attempt to bring the language up to date. Similarly a reference to the landlord in section 49(7) was amended by schedule 1 of the 2007 Act. New provisions introduced by that Act use the word “owner” when referring to common grazings. We have no doubt that the failure to make a similar correction to sec 20 was an oversight but this does not affect the original intention. Mr Sutherland accepted that Parliament would have to be taken to be aware that the practice was to treat sec 20 as wide enough to allow resumption of common grazing land. His suggestion was that, having recognised the proper legal basis upon which common grazings were held, Parliament deliberately left sec 20 un-amended. This, in our view, is simply untenable. It would, on any view leave confusion. Although Parliamentary draftsmen may come in for criticism on various grounds it is not to be supposed that they deliberately adopt provisions with a view to maximising confusion and ambiguity. The most obvious construction of the provision, if restricted to landlords in a strict sense, would be that there could be no resumption from common grazings. This would mark a very significant policy change. There was no suggestion of a reason for change and we are satisfied that Parliament could not have intended to effect such change simply by way of an inference to be drawn from the fact of their making corrections to other provisions.

[13] In fact, the importance Parliament attached to resumption of common grazing land is clear. The amendments in the 2007 Act reflected this. Section 20(3) was amended by sec 22(1)(c) of the 2007 Act to add express reference to “the generation of energy” as being a reasonable purpose for resumption. This plainly was intended to cover wind farms. Such developments typically extend over wide areas of common grazing land and rarely involve much in-bye land. The assumption that sec 20 applies to resumption of land from a common grazing is implicit in certain other changes to that section made by the 2007 and 2010 Acts. Section 22 of the 2007 Act makes some provisions for temporary resumption and the 2010 Act adds a new subsec (1H) to sec 20 which expressly deals with an aspect of such resumption “in its application to a registered common grazing”.

[14] We are satisfied that a narrow view of sec 20 would prevent any resumption of common grazings and that this would thwart the intention of Parliament. If common grazing land could not be resumed, this would take the meaning out of sec 21(4). Mr Sutherland’s focus was on the term “landlord”. He attempted to avoid the conclusion that his argument would prevent any resumption of common grazing land by contending that the intention was that such land could be resumed only by an owner who happened also to be a landlord of an adjacent croft. However, he advanced no reason for such a restriction. It would be a restriction with no practical purpose and one potentially difficult to operate in practice. For example, on his approach, the owner of grazing land who wished to resume it from grazing shareholders who all owned their own crofts would be prevented from doing so because he was not a landlord of any croft. Would such owner be entitled to resume if it turned out that he or she was still landlord of one of the crofts? What purpose would such a distinction serve? In any event, the idea that the word “landlord” was intended to be construed not by reference to the land in issue but to other land, namely the croft, is inherently improbable. It is the person with the title to the relevant land who requires to be identified. Further, his suggested construction does not appear to get over the issue of whether the land subject to grazing rights is properly to be regarded as part of the croft. Mr Sutherland stressed the policy of protection of the crofter. However, such protection has been provided by the requirement of a reasonable purpose and by provision for a share of the increased value. It may be added that, from the crofter’s point of view, it does not matter whether it is the land which is resumed or simply his right to use it.

[15] We get little help from the authorities cited in this case. The authorities on statutory construction simply illustrate the wide variety of problems which can arise. We entirely accept Mr Sutherland’s proposition that a court should not act as a legislator creating “a policy change to the law where Parliament has not done so”. However, no such change is contended for here. We are satisfied that the dominant aim of the Court is to determine the intention of Parliament from the language used in its proper context. That context includes established usage.

[16] In summary, when seeking to identify the intention of Parliament from the language used our main source is the context in which the language is used in the Act. We have little doubt that in 1886 the term “landlord” was used to refer to the owner of a grazing area subject to the common grazing rights of crofting tenants. As indicated above we place considerable weight on the immediate context of secs 20 and 21 and this is supported by the wider context of the provisions of sec 50 discussed above. Further support comes from the admitted fact that Parliament could be taken to be aware of the construction adopted in practice. It must have been aware that since the forebear of sec 20, namely, sec 2 of the 1886 Act, the relevant provisions had always been treated as wide enough to allow resumption by owners of common grazings. Over the years it has taken no steps to effect a change. On the contrary, Parliament plainly attaches importance to the resumption of common grazing land.

[17] When construed in light of an assumed tenancy of common grazing land, the provisions of sec 20 reflect the Parliamentary intention in a straightforward way. That such an assumption may have come to be regarded as incorrect does not change the intention: Bennion Section 226. In any event, for reasons discussed above we are satisfied that, whatever the underlying assumption, Parliament intended the term “landlord” to apply to the owners of common grazings. We can give effect to sec 20 by recognising that in using the word “landlord” Parliament plainly meant the owner of the grazing land and that the right to resume was to resume the land and not simply the grazing rights held over the land.

[18] In the result we are satisfied that the challenge to the competency of Mrs Sorbie’s application fails. We are entirely satisfied that the purposes for which resumption was sought are reasonable and we authorise resumption on the lines of the parties’ agreement. We have already noted that they were also able to reach an agreement about expenses.

For the applicant: Iain Maclean, Advocate, MacPhee & Partners, Solicitors, Fort William

For the respondent: Robert Sutherland, Advocate, E Thornton & Co, Solicitors, Oban