Decision of the Scottish Land Court

George Rodenhurst (Applicant) v Thrumster Estate Limited (Respondents)

Case reference SLC 26/11
before
Lord Minginish, Chairman, and Mr John A Smith
17 July 2015

NOTE

[1] The respondents are the landlords and the applicant is the tenant of a croft known as Brickigoe, Thrumster, Caithness.

[2] In this application the applicant, Mr Rodenhurst, craves the court to authorise him to acquire the croft land comprising the croft in terms of section 12(1) of the Crofters (Scotland) Act 1993 (“the 1993 Act”).

[3] This is the second time the possible purchase of this croft by its tenant has been litigated in this court. In 2005 the then tenant, Miss Eva Waugh, applied to the court for similar authority. Her application (SLC/156/05) was opposed on both of the statutory grounds contained in section 13(2) of the 1993 Act, that is to say (a) substantial hardship to the landlord and (b) substantial detriment to the interests of sound management of the landlord’s estate. However by our order of 18 August 2006 we authorised acquisition. Despite that, Miss Waugh did not proceed with her purchase but instead assigned the tenancy of the croft to the present applicant.

[4] The present application was also opposed on both statutory grounds but as a result of our decision, following debate, of 8 January 2015 the averments relating to the respondents’ case on detriment to sound estate management were refused probation. Accordingly opposition to the present application is now restricted to the case based on substantial hardship to the landlord although it is fair to say that the way in which substantial hardship is said to arise is related to the effect the sale of the croft would have on the respondents’ management strategy of promoting archaeology and falconry as attractions of the Estate. Thus there were elements of detriment to sound estate management in the evidence we heard.

LEGISLATION

Crofters (Scotland) Act 1993

“Section 13

(1) The Land Court, on an application made to it under section 12(1) of this Act, may make an order –

(a) authorising the crofter to acquire such croft land as may be specified in the order, subject to such terms and conditions as, failing agreement with the landlord, may be so specified, and requiring the landlord to convey the land to the crofter or his nominee in accordance with such terms and conditions; or

(b) refusing the application.

(2) The Land Court shall not make an order in accordance with subsection (1)(a) above where it is satisfied by the landlord as to either or both of the following matters –

(a) that, in all the circumstances pertaining to the landlord and having regard to the extent of land owned by him to which this Act applies, the making of such an order would cause a substantial degree of hardship to the landlord;

(b) that the making of such an order would be substantially detrimental to the interests of sound management of the estate of the landlord of which the croft land to which the application relates forms part.”

CASES

Cameron v MacKinnon 1996 SLT (Land Ct) 5
Donald v Boddam January 1828 Game Laws 303
Dunbeath Estate Limited v Henderson & Ors 1988 SLCR 59
Fraser v MacKintosh 1995 SLCR 91
Geddes v Martin 1987 SLCR 104
MacAskill v Basil Baird & Sons Limited 1986 SLCR 133
MacDonald v Hilleary 1992 SLCR 51
MacDonald v West Coast Salmon Limited 2004 SC 733
Mackay v Trustees of Miss S N Barr 1981 SLCR App 76
MacKenzie v Hardy & Another 1998 SLCR 49
Waugh v Thrumster Estate Limited 2006 SLCR (2) 53
Waugh v Thrumster Estate Limited SLC/156/05, decision of 18 August 2006

TEXTS

Scott-Robinson, The Law of Game and Fishing in Scotland, page 4

[5] The proof began at Thurso on 28 April, when the applicant was represented by Mr Brian Inkster, solicitor, and the respondents by Mrs Islay MacLeod, one of their directors, appearing on their behalf with the consent of the court, as she had done in the previous application.

[6] At the outset of the proof both parties intimated that they had a witness who was unable to attend. In the applicant’s case this was a Mr Brewster who had become ill and unable to travel to Caithness. In the respondents’ case it was a Dr Heald, a professional archaeologist, who was not able to attend as a result of a mix‑up with dates. At the end of the Thurso hearing we agreed that the evidence of both of those witnesses would be taken at Edinburgh, a more convenient location for them both, at a later date. The proof at Thurso continued with Mrs MacLeod, her daughter Ms Catherine Mary MacLeod, Mr Ian Ronald Giles, Mr Ian Guy Hamilton Wallace and Mr Robert Michael Lodge giving evidence on behalf of the respondents and Mr Arthur John Richard Wood and the applicant himself giving evidence on behalf of the applicant. By our order of 20 March we had ordained the respondents to lead at the proof and accordingly their evidence was heard first.

Evidence

Mrs Islay Jane Winifred MacLeod (64)

[7] Mrs MacLeod gave evidence that she was a director of the respondent company and that she lived at Thrumster House Caithness.

[8] This was the second time that she had had to defend the purchase of this very large croft. She referred to productions 4 and 10 as illustrating its extent. Production 10 outlined the extent of Thrumster Estate as presently constituted. It could be seen that Brickigoe was right in the middle of the estate. The land under crofting tenure extended to 1,178 acres of which Brickigoe made up 418 acres. The whole extent of the estate was about 4,000 acres so Brickigoe made up about 10%. The extent of the estate as given on the Fieldsports website was misleading in that it included sporting rights held over other ground, such as 1,500 acres of Ulbster Mains and also 68 crofts which the estate had sold off.

[9] The sale of Brickigoe would be a substantial loss in terms of both the crofting ground and the whole extent of land owned by estate. The croft cut very deeply into the Oliclett Moor which was part of the Caithness Special Protection Area and was covered by a Peatlands Designation. Its western boundary was unfenced and permission would be required for fencing there, given its environmental designation. At its eastern end the croft extended into Raggra Moor and again parts of that boundary were unfenced.

[10] Under reference to production 4 Mrs MacLeod identified a Mesolithic site discovered in 2001 which was right on the boundary with Oliclett Farm to the northeast of Brickigoe. The site was actually outwith the croft. She also drew attention to the “Wag of Swartigill”, a late Iron Age structure which was now a national scheduled monument. The Wag was actually on Brickigoe. Mrs MacLeod identified the site of Loch Brickigoe which had been drained in the early 19thor late 18th century but re‑flooded about 40 years ago and was the principal source of the Swartigill Burn. That burn had suddenly become of interest archeologically. Production 20 outlined research projects relating to the burn. This document had been prepared by herself and charted the progress of research carried out along the course of the burn. In 2001 tree planting on the neighbouring holding of Oliclett had revealed a major and extensive Mesolithic site which had resulted in two years of archaeological research funded by Historic Scotland to the tune of £70,000. That research had been carried out by Dr Amelia Pannett, referred to in the productions (for instance production 8). It had been on the back of that research that the Yarrows Trust and Caithness Archaeological Trust had been created. This Mesolithic investigation had been carried out over two years, 2001 to 2002.

[11] In 2004 the Royal Commission on the Ancient and Historical Monuments of Scotland had carried out a survey of the whole Yarrows area and some remains had been found along the Swartigill Burn at that time. They had been thought to be late medieval but in 2012 a small community dig, undertaken to identify and conserve remains being eroded by the stream and by livestock, had made an unexpected find of early to late Iron Age pottery. A significant assemblage of such pottery had been found.

[12] Last year funding had been received for a Geophysics study. It had been carried out by the Yarrows Heritage Trust in close partnership with the Estate and with funding from the Caithness and North Sutherland Fund, a fund administered by an offshoot of the Nuclear Decommissioning Authority. The actual research had been carried out by the University of the Highlands and Islands (“UHI”) in August 2014 and had revealed substantial sets of buildings surmised to be probably Iron Age, given the pottery found. Further funding had been received for further work by the UHI in September of this year. Asked whether this Geophysics study had included Brickigoe, Mrs MacLeod confirmed that it had not but part of the design of the study was to investigate the Swartigill Burn because it was the obvious link between the Iron Age site at Oliclett and another one to the east of the croft. The lower reaches of the Swartigill Burn were to be excavated in September of this year building on research carried out by Dr Richard Tipping of the Biological and Environmental Sciences Department of the University of Stirling (see production 18).

[13] Mrs MacLeod referred to production 19, a letter by Dr Amelia Pannett and Dr Kenneth Brophy, the former an archaeologist at Welsh Historic Monuments and the latter a senior lecturer at Glasgow University. It described the work carried out in 2001/2002, including the finding of a flint scatter dating from between 7,000 to 5,000 years ago at the Oliclett site. It went on to say that since these excavations further work had revealed that the flint scatter area extended well beyond the initial investigation area and was now thought likely to extend along the Swartigill Burn, which would have acted as a routeway into the upland landscape and across the land to both the north and south. Mrs MacLeod then produced, for the perusal of the court, samples of the flint scatter found. The items produced were said to have been found on Brickigoe. These Mesolithic discoveries had opened up a whole new chapter, previously undocumented, in the pre‑history of Caithness.

[14] Archaeological interest in Caithness divided into upstanding monuments, such as Yarrows, which interested people could come to look at and more active participation in the way of digs and fieldwalking. There were currently problems with the management of Yarrows and the focus had very much shifted to Swartigill following the chance discoveries there. More generally, a critical mass of interest had been built up which made the Yarrows area a microcosm of what the rest of Caithness might produce.

[15] A further unexpected aspect which had come to light following Dr Tipping’s work was data he had extracted principally from Brickigoe Loch of laminated deposits and annually‑laminated sediments at Loch Brickigoe and South Yarrows, described by Dr Tipping as being of “high international significance” (production 17). The “detailed, multidisciplinary and multiple sponsored analysis” spoken of by Dr Tipping (and his co‑authors) in production 17 would be a huge project which would probably involve the Estate and the Yarrows Trust forming partnerships with others to take it forward. Thrumster Estate’s strategy ran together with that of the Yarrows Trust; the Yarrows Trust could do very little without Thrumster Estate and the Estate could do very little without the Trust.

[16] The position was, therefore, that Brickigoe was at the centre of this archaeologically very significant area and removal of the croft would create a huge hole in the middle of the estate over which the respondents would have no control. The result would be a great deal of uncertainty as to whether vitally important historical climate change archaeological research could proceed. Asked by the court as to whether it was not possible that Mr Rodenhurst could co-operate with the research as fully and freely as the Yarrows Trust and Thrumster Estate had to date, that was, Mrs MacLeod said, uncertain. She invited the court to accept that the sale would be seriously disruptive to the Estate’s future strategy. Thrumster was a relatively small estate with no red deer, no salmon river and no high income-generating potential.

[17] Asked how this archaeological interest impacted on Estate revenue, Mrs MacLeod said there had been a huge upturn in interest in both Bed and Breakfasting and self‑catering accommodation. Thrumster House offered both Bed and Breakfast and Full Board and there were three self-catering units, one operated by Mrs MacLeod herself and two by her daughter, Catherine. We were talking, she confirmed, about academics, amateur archaeologists and ordinary tourists who were just generally interested in archaeological sites. The last mentioned category was preponderant. Thrumster was a popular stop on the way to Orkney with its enormous number of sites of archaeological interest and people who stopped were amazed to discover how rich Caithness was in these respects because historically it had been under-promoted. Having come once, many people returned. The Estate had consciously promoted the archaeological interest. The extracts from High Life, BBC History and Caithness Explorer magazines and the entries on the FlipKey Rentals website (collectively production 14) were examples. Reference was also made to Facebook pages at productions 34 to 42. Facebook was what the Estate used to keep news of its activities up to date. Its website, by contrast, was completely out of date. Facebook was far more productive.

[18] Asked what proportion of the Estate’s income derived from people attracted by archaeology, Mrs MacLeod explained that it was difficult to analyse because they did not always know why people came. Moreover her daughter Catherine was now taking more of a lead role in dealing with visitors. Her understanding was that 37% of the people who visited Orkney did so for the archaeological interest so she imagined that Thrumster would be looking at something similar. Caithness had a rather different story to tell from Orkney and it was a good contrast. The Orkney sites involved, largely, upstanding preserved monuments in an agricultural context whereas Yarrows was a “true relic landscape” which had never been industrially farmed and which could be studied in a truly pristine context. It was unusual, if not unique. It was the story of the Mesolithic era. Given the nature of discoveries from this period, there was little for people to go and look at so the Estate’s job was to make the story itself interesting. She said that it would have a significant impact on the Estate’s finances if they were unable to continue with the archaeological strategy.

[19] Turning to sporting rights and income derived from sport, that could fluctuate wildly depending on the supply of game. Rabbit and snipe hawking were available on the estate. But rabbit and snipe populations could come and go whereas the archaeology was permanent. The grouse season stopped on 10 December and snipe hawking offered the chance to extend the season. None of the Estate’s income streams was sufficient on its own to sustain what the Estate was doing but, taken together, they turned a modest profit. Production 15 was a set of Profit and Loss accounts for Thrumster Estate Ltd and Thrumster Estate Fieldsports. Thrumster Estate Fieldsports, the name under which she herself traded, paid a rent of £12,500 to Thrumster Estate Ltd for sporting rights. That figure was more than all the agricultural rents receivable by the Estate put together. It was quite a large proportion of the estate’s income. Her daughter Catherine paid £6,000 per annum for the self-catering units she managed but she also paid for the repairs on these two properties.

[20] The thing about the sporting income was that it fluctuated according to conditions. The upcoming year was quite a busy one but the ground had to be quite intensively managed as Caithness did not produce a lot of game; a day’s shooting for one gun would cost only £200. The same piece of ground could not be covered twice within a fortnight or even within three weeks because birds would not have time to settle, so falconers and shooters had to be moved around the different areas of ground and the loss of such a large area as Brickigoe would be severely detrimental to that policy.

[21] In the previous case she had not led any evidence as to falconry as she had understood it to be included in the sporting rights which could be reserved to the landlords by way of lease. If the Estate were to lose falconry rights over Brickigoe that would be a real problem because there was no way of controlling which way a falcon was going to go. If it went into forbidden territory that would cause a problem. This would be covered in greater detail by the Estate’s gamekeeper and an expert witness but it would be very difficult to manage the dogs, which always had to be downwind of the game, and also very difficult to retrieve kills on that ground moreover there would be problems negotiating an area called the Blackhill (in order to avoid going onto Brickigoe) because it was very wet, typical Caithness peatland.

[22] Mrs MacLeod made reference to production 22, a letter from a Mark Upton, described as an experienced falconer, a member of the Council of the British Falconers’ Club and an elected member of the Hawk Board which represents all falconers and hawk-keepers in the United Kingdom. In that letter Mr Upton describes how Thrumster Moor has been used by falconers for grouse hawking since the 1970s. He describes its suitability for that purpose and concludes

“If a large area of the middle of Thrumster is lost for falconry it would make it nearly impossible to fly over any of the rest of the estate. It is difficult to predict the exact direction a flight will take and if this ground was lost to the estate falconers would find great difficulty in flying their falcons and find it impossible to retrieve a falcon on a kill from the prohibited ground. This would make Thrumster unsuitable to rent for the sport of falconry and consequently badly affect the estate’s business.”

[23] Under reference to production 23, Mrs MacLeod identified the income from falconry in 2014 as being £7,000. This year they had falconry bookings worth £9,360. Next year the estate was going to try a hawking course run by Belgian hawkers who had been coming to Thrumster for many years. Production 25 was a promotional “flyer” for that purpose.

[24] In cross‑examination by Mr Inkster, Mrs MacLeod confirmed that the two strands of activity with which we were concerned were the archaeological interest and falconry. These were the two in respect of which the Estate would stand to lose control if Brickigoe was sold. She agreed that she may not have made the importance of these factors clear to Mr Rodenhurst when he had first sought to purchase the croft. Mr Inkster put it to her that production 2, a letter from solicitors then acting for the Estate dated 21 October 2010, made no mention of archaeology or detriment to estate management. Mrs MacLeod explained that at that time Brickigoe had not been recognised as being as important as it was now. At that time she had not seen Dr Tipping’s report about the cores taken from Loch Brickigoe. She would nevertheless have been concerned about the impact on the archaeological interest generally of the sale of the croft in 2010. But at that time they did not have the benefit of the Iron Age discovery further down the Swartigill Burn, which was now the focus of interest.

[25] Falconry had not been mentioned at that time (2010) because she had thought it would be reserved to the Estate. Asked whether, in 2010, she had other reasons for not wanting to sell the croft to Mr Rodenhurst, she explained that it was an enormous croft and its removal would leave a huge hole in the middle of the estate. It was not true to say that she was generally opposed to the sale of crofts: 69 crofts had been sold. Mrs MacLeod referred to production 12, said to be an extract from a report by Bell Ingram, chartered surveyors, prepared in 2005 on the death of Mrs MacLeod’s mother. It refers to the size of the crofts on the estate increasing west of the A9 and makes the point that sales there could be detrimental to the future management of the Estate’s sporting interests in that area. Mrs MacLeod likewise denied a suggestion, put to her under reference to production 27 (an article from The John O’Groat Journal dated 6 July 2007), that she was opposed to selling to anyone outside Caithness. That had been said by Mr James Macmillan who had been acting for Eva Waugh and it was “just untrue”. The crofts whose sales had been opposed were bigger crofts, the loss of which would be seriously disruptive for the Estate’s plans for promoting archaeological interest. The point she had made to the Crofters Commission when the assignation of the Brickigoe tenancy was being considered was that local interest had not been surveyed. The assignation had not been advertised in the press. She had had to do it herself. The Crofters Commission had agreed that local interest had not been gauged and a hearing had been held. Under reference to what had been said in the previous case to the effect that all recent purchasers had come from south of the border and that, although some were very good, some had no conception of what crofting involved, it was put to her that she was reluctant to sell croft land, or agree croft assignations, in favour of people from England. Mrs MacLeod said that she would not put it as strongly as that but she was concerned about the large sums of money changing hands for assignations, to the exclusion of local interest.

[26] She agreed that Mr Rodenhurst had some agricultural experience but he had done very little with the croft and she had had to write to him on a number of occasions. He had no conception of the interdependence of crofting communities, although that sense had possibly been lost in Caithness by now anyway.

[27] Production 28, a letter from Mrs MacLeod to Messrs Macleod & MacCallum, Solicitors, Inverness, then acting for Mr Rodenhurst, incorrectly dated 15 May 2008 (rather than 15 May 2010, a matter which had been drawn to our attention by Mr Inkster at the outset of the proof) was put to the witness. It returns a cheque for the previous term’s rent of Brickigoe and alleges that the consent of the Crofters Commission to the assignation may have been acquired through misrepresentation and the assignation itself through fraud. It concludes “we therefore cannot recognise Mr Rodenhurst as the tenant of this holding and will not accept rent from him”. Mrs MacLeod confirmed the terms of the letter and, under reference to productions 54 to 56, acknowledged that Mr Rodenhurst had been attempting to pay rent and was now, on the advice of the Crofters Commission, paying rent into a bank account opened for that purpose. Asked whether she accepted Mr Rodenhurst as tenant of the croft, Mrs MacLeod said that she did so to the extent that the Crofters Commission had approved him. She still believed he had obtained the tenancy fraudulently but it was possible that information had not been available to the Crofters Commission at the time. She had not considered whether she would accept the back rent were the court to authorise purchase of the croft land by Mr Rodenhurst. Nor was she sure whether she would accept the purchase price of the croft, worked out at 15 times the annual rent. She accepted that the Estate was losing income at the moment because of her refusal to accept rent from Mr Rodenhurst. That being the case, she agreed that the Estate would be no worse off financially if the court ordered the sale of the croft to Mr Rodenhurst. She pointed out that the rent was not a significant amount of money.

[28] Mr Inkster put to the witness that if the Estate were to accept a capital sum (the purchase price of the croft) it would be in a better financial position than it was at the moment when it was receiving no income at all from the croft. Mrs MacLeod supposed that that was so but pointed out that the rent would not offset the loss of the croft to the Estate. It was equivalent to about two days’ shooting.

[29] She denied that Mr Rodenhurst had approached her with a view to purchasing the crofthouse site. He had however applied for planning permission to build a house on that site. An archaeological investigation had required to be carried out as part of that. She did not think anything had been found, certainly nothing prehistoric.

[30] The witness confirmed that she leased land on a year to year basis from the Sinclair Family Trust, being part of Ulbster Mains Farm. It was purely a sporting lease of about 1.500 acres.

[31] When questioned about Dr Tipping’s letter, production 17, she acknowledged that Loch Brickigoe is not situated on Brickigoe croft. That was shown clearly on production 10. However the reference to Loch of Brickigoe was only part of the survey. In production 18 Dr Tipping referred to the upper reaches of the Swartigill Burn but the burn ran all the way from Loch Brickigoe, through the croft, and thence to Loch Hempriggs. The reference to “upper reaches” could not mean simply the area of Loch Brickigoe itself. Mrs MacLeod thought it was a description of the burn all the way down to the Iron Age site marked on production 10.

[32] Mr Inkster put it to the witness that, whereas production 17 dates from 2001, she had said earlier in her evidence that it was only after 2010 that she had realised the significance of Brickigoe croft in archaeological terms. She explained that she had seen production 17 only in recent years. She accepted that no further archaeological work had been carried out since 2001 to 2003. The further research required would be an enormous project but it was certainly in view. In response to a suggestion from Mr Inkster that no one knows what that project may or may not uncover, she thought it was becoming more likely that further finds would be made. There had in fact been some further work done in 2007, in the form of the Scottish Wetlands project referred to in production 20. This had involved a palaeoenvironmental study.

[33] She denied that Dr Tipping’s work had been confined to the head of the Swartigill Burn. He had covered a very wide area. The upper reaches of the burn ran through Brickigoe. Further work was being contemplated by the Free University of Amsterdam. It was also in the Yarrows Trust’s forward plan. She acknowledged, however, that nothing was planned for the immediate future. The palaeoenvironmental surveys dealt with mobile populations, not particular sites. It was unique to have this relic landscape in which to study the movements of Mesolithic people.

[34] Under reference to production 19 (Dr Pannett’s and Dr Brophy’s report) it was put to the witness that the area around the Swartigill Burn was unlikely to contain highly visible monuments of the kind found on the Yarrows Trail. She accepted that this was so. On the other hand, the Yarrows site was quite static whereas the Swartigill Burn area revealed evidence of people on the move. To destroy its integrity by taking out “this huge lump of land” which contained most of the upper reaches of the Swartigill Burn would be highly damaging to the Estate’s archaeological strategy.

[35] This was followed by questioning from the court as to the extent of the Scottish Wetlands project already referred to. Production 20, which discusses that project, refers to the Loch of Yarrows environment having been identified as a candidate for the study. The witness explained that Yarrows covered a large area. The project had included probes on the western side of the track going up through Oliclett. If one was talking about the Yarrows Basin, that would include Brickigoe. She showed us this on a map. The Yarrows Basin was delineated by high ground to the north and the top of Yarrows Hill to the south. The low lying ground in between formed the basin. She considered Yarrows Brickigoe and Oliclett all to be part of the Yarrows Basin.

[36] When questioned about the small community dig referred to in production 20 as having been carried out in 2012, it had all been about Swartigill. Stonework had been found emerging from the burn at the Iron Age site. Although that was situated outwith the croft what was really important was the whole length of the burn since it formed the link between Brickigoe Loch and Iron Age Site. The 2015 geophysics evidence which had been referred to had also related to the Iron Age site. So all of that activity was outwith the croft.

[37] Production 21, being the relevant entry in the Schedule of Monuments under the Ancient Monuments and Archaeological Areas Act 1979, related to the Wag of Swartigill. She had been aware of the Wag’s existence at the time of the 2006 hearing. It was situated at the far (eastern) end of the croft. Asked to explain what it consisted of, the witness said it was very difficult to say because there was not much that was visible due to the accumulation of vegetation and earth on top of the stone. She thought that was why it had escaped notice until recently. It had come to her own attention when applying for the Countryside Premium Scheme and there had been a requirement to list all monuments on the land. She had contacted Historic Scotland about the Wag and they had listed it immediately. It was a typical souteraine dwelling. She agreed that there were many of them around Caithness but thought there may be more still to be found. The significance of the site being protected was that one could not do anything with it without the permission of the Scottish Government. Any work done on this site would require the consent of the Scottish Government and of Mr Rodenhurst, were he to own the land. Mr Inkster put it to the witness that it would require the consent of Mr Rodenhurst as matters stood, given that he was a crofting tenant. The witness was not sure that that was so. The loss of the croft would mean a loss of measure of control in terms of the Estate’s current strategy.

[38] Mrs MacLeod agreed that the area round the Wag of Swartigill was extremely wet and quite boggy. There was, she said, a proposal to construct a walkway. Asked whether that was a plan or something on a wish list she replied “It’s sort of on a wish list”. She accepted that it would be quite a long walkway, probably about a mile and a half. She denied, however, that it would be an expensive undertaking since what was envisaged was only the bridging of three burns. It would give a circular route linking into the Yarrows Trail. Asked what there would be to see along the route, there would be two Iron Age sites. Mr Inkster put it to her that it would make more sense to have a walkway going from Yarrows to the Iron Age site directly rather than one going through Brickigoe. She said that some people just liked a long walk. The Wag of Swartigill was quite impressive and it would not take much to present it in an attractive way, with the aid of an interpretive panel.

[39] Although there had been no recent work done on the Mesolithic sites there was an annual field-walk for children from the local school which involved the systematic searching of an area of ground and the recording of any man-made object found.

[40] The £70,000 paid to Dr Pannett and her university had contained an element for accommodation costs which had been paid to Thrumster. It amounted to £2,000, a global figure for project management and accommodation. She accepted that since that time the Estate had not received any money directly from archaeological work. It was the spin-off from such work, in terms of increased interest in its results, which was significant. Flints such as had been found in the area of the Swartigill Burn had also been found at Raggra, Oliclett and Yarrows. They were all similar. What one had here was a large area, rich in archaeological material, which required a holistic approach. Disintegration of ownership would make that difficult. If part of the land was in other ownership the Estate would not be able to lead this project (in conjunction with the Yarrows Trust). It was not impossible that this same result could be achieved in different ownership if everyone worked together but it was, she thought, improbable. Asked about the average number of people using the Yarrows Trail on a daily basis, the witness was unable to give an answer, due to current difficulties in the way of poaching of the trail by livestock and difficulties with car-parking which had caused the trail to be closed for a time. It had now been reopened with a new car-park. The closure had been in 2013. It had made site tourism very difficult. People had still come to see the Yarrows Trail and she had taken them round, just to show them how to get around it. She did not know how many people visited the site daily when it was open and freely available. But cars were often seen parked there, perhaps three, four or five of them together. She accepted that some people visited just because it was a nice walk. Some people walked their dogs there. It was very difficult to analyse what proportion of her guests at Thrumster House were there for the archaeological interest but the Estate and her daughter, Catherine, had identified archaeology as a unique selling point.

[41] Mr Inkster referred to production 30, a page from the Estate’s website. Reference was made to Camster Cairns and to Hill o’Many Stanes. These were sites on neighbouring land, not part of the estate. She agreed that there were brochs “everywhere” in this area. There were eight on Thrumster Estate. But, equally, there were many others nearby. She accepted that a lot of what was being advertised, in the way of sites, on production 30 was not situated on Thrumster Estate, explaining that people wanted to go further afield. She accepted that Thrumster was benefitting from a lot of archaeology situated elsewhere in Caithness. She accepted that tourism income was coming from people visiting a huge range of sites throughout the county and beyond. However, although people might not be coming to see Yarrows specifically, the experience they got visiting Thrumster was “fairly concentrated”.

[42] Mrs MacLeod doubted whether Camster Cairns was a far more popular archaeological tourism destination than Yarrows. Parking was very poor. There were two cairns to be seen and that could be done very quickly because they were near the road, whereas Yarrows involved an interesting walk. She accepted, however, that there was plenty of archaeological interest to be seen in Caithness and that a lot of it was outwith Thrumster Estate. The Thrumster experience was however more interesting. She took guests for walks and that gave them a more interesting experience in itself. If one looked at the Thrumster Facebook page one could see the efforts being made to develop this interest and “keep everything moving”. Everything the Yarrows Heritage Trail did was on Thrumster Estate.

[43] Under reference to production 30 from the Highland Council’s Historic Environment Record showing 19 archaeological sites in Caithness, she accepted that only one of those, Yarrow Archaeological Trail, was situated on Thrumster.

[44] Asked what investment the Estate made in the Yarrows Trail, Mrs MacLeod explained that they were involved in path-cutting, fencing and similar operations. It was assistance in kind, rather than financial, although it involved a cost. She accepted that archaeology was for the public good and not for private profit but it was a good marketing tool for Thrumster Estate.

[45] Mr Inkster put to the witness that Thrumster could still benefit, in terms of tourist accommodation, from anything found on Brickigoe even if the croft were owned by Mr Rodenhurst. She could not see Mr Rodenhurst co-operating with the Yarrows Trust. In answer to a question from the court she accepted that at the moment people were not coming to Thrumster to see anything on Brickigoe and so it would not be worse if Brickigoe was taken out of the equation. She accepted that the Estate presently derived no income purely from archaeology on Brickigoe.

[46] Questioning then turned to falconry. The number of grouse on Brickigoe varied but there were usually six to eight coveys on fenland on the west side of the croft and some on the eastern side as well. There were also snipe. The snipe were as valuable to the Estate as grouse. There could be anything between five and 12 birds in a covey. It depended very much on the year. She thought it unlikely that last year there had been only one covey of five birds. But it was possible. After the hard winter of 2010 numbers had been very much depleted but grouse were capable of bouncing back.

[47] Asked about fencing on Brickigoe, her understanding was that the Peatlands Special Protection Area designation meant that fencing in that area required the consent of Scottish National Heritage (“SNH”). She doubted if such consent would be allowed but one would have to ask SNH. She thought it would be prohibited.

[48] Shooting rights could be protected by a shooting lease, as had happened in the previous case but that would not cover falconry. She confirmed that she would be content with a shooting lease to cover the interests of shooting guests. She agreed that that was the arrangement the Estate had over other crofts which had been sold. Taken to a passage (paragraph 14) in the previous judgement which said that Brickigoe, not having as much high ground as Yarrows, offered poorer grouse shooting and hawking, Mrs MacLeod explained that she had not led evidence on these matters on the last occasion. We would have to ask her expert in this case about that. She could not remember what evidence had been led in the previous case which would have entitled the court to draw that conclusion.

[49] In the present case she proposed to lead the evidence of Mr Guy Wallace. She and he had been partners in the Caithness Goose Company and he was an old family friend but she denied a suggestion from Mr Inkster that she and Mr Wallace were a couple. She was calling him as an expert witness and had made clear to him that his duty was to the court and not her. In any event she expected his evidence to be largely generic.

[50] Asked how many grouse hawkers would be on Brickigoe in any year, she said that they did not do a lot of grouse hawking. Last year had been a poor year. The hawking revenue had come to just over £7,160. That had been from eight groups of hawkers. The size of hawking parties varied. One person had been going out on his own for a very long time. He was a very old established client of Thrumster’s. Otherwise groups typically comprised four or five people. It would not surprise her to hear that Mr Rodenhurst had seen only one person there. He would not have seen hawkers unless he was standing at the top of his fields and in any event he visited the croft only once or twice a day. She could not envisage Mr Rodenhurst not causing difficulties for hawkers.

[51] Mr Inkster referred to productions 44 to 47, being pages from an online Falconry Forum. These include entries about Thrumster. Some of these entries suggest that grouse are thin on the ground at Thrumster. Mrs MacLeod accepted that for some years that was the case but everyone operating in this area had their detractors and some of these comments had come from a party who had been asked to leave. She thought critical comments were coming from members of that party. They were incompetent hawkers with poor dogs. Thrumster had a lot of repeat business and she preferred word of mouth advertising because sometimes more general advertising attracted people you did not really want. The Estate’s advertising was now becoming more targeted, as the Belgian brochure demonstrated. She denied the suggestion that parties had been seen going over the same ground five times in five days. That would simply not be allowed to happen. Parties were accompanied except in the case of Paul Smith.

[52] Asked how one could be sure that Mr Upton’s letter, production 22, included Brickigoe, the witness explained that she had sent him a map, production 10. She had emailed him a copy of the map and asked him to comment. The croft was delineated in red on that plan.

[53] There had been £9,360 worth of bookings for falconry alone this year, compared with £7,160 last year.

[54] Questioning then turned to the possible effects of wind farming on falconry on Thrumster. Reference was made to production 48, an article from a website called National Wind Watch dated 31 March 2011 in which Mrs MacLeod is quoted as saying that a plan for nine wind turbines at Burn of Whilk, near Thrumster, would be “a waking nightmare”, adding that “the wind farm would reduce the number of visitors to the area, impact on archaeological sites and would force her to give up her falconry business”. Mrs MacLeod explained that the wind farm had been scaled back; four turbines had been removed. The company had revised its plans and addressed concerns. Asked whether the wind farm was no longer a problem, at this point in time one just did not know. The wind farm was situated on the south side of the estate and was now “pulled back” behind some trees. The Estate had managed to live with Camster wind farm which was also very close. It was possible that the new wind farm would have a detrimental effect but it was too early to say. Referred to a passage in the previous judgement in which Lance Nicolson, the Estate’s gamekeeper at the time, had said that no hawker would want to hunt within a mile of a wind turbine, she confirmed that that had been Mr Nicholson’s view and her own at the time but that they had not had experience of living with wind farms then. The present developer was much more helpful than the original one, the turbines were situated behind trees and grouse would not go through forestry to escape a hawk. Accordingly the wind farm, as built, was less threatening.

[55] Returning to financial matters, under reference to draft accounts dated 16 July 2004 (production 15), Mrs MacLeod confirmed that the final accounts produced the same figures. She accepted that professional fees for the current year would be much greater, given the cost of defending the sale of Brickigoe. The Estate may make a loss as a result of trying to keep the croft. However the loss of Brickigoe would be a very heavy loss given its location and size. She denied that more hardship was being caused to the Estate by keeping Brickigoe than agreeing to sell it. It depended on what you meant by hardship. The impact of it not being part of the estate would be very heavy. We were not talking about direct implications; we were talking about the effect of fragmentation of the archaeological landscape. Emotional hardship could not be ascribed to a company and whether she herself felt emotionally hard done by was neither here nor there.

[56] Mrs MacLeod accepted that Thrumster Estate’s only employment costs were her own salary. The only other full-time employee, Robert Lodge, the gamekeeper, was employed by Thrumster Fieldsports. Occasional help was taken on in the house or to assist Mr Lodge. Asked who the three or four people mentioned in the respondents’ pleadings as making a living from the Estate were, she identified herself, her daughter, Robert Lodge and whoever else might be taken on causally from time to time. It did not include Guy Wallace. Her daughter had other income from work as a furniture restorer and cabinet maker.

[57] Cross‑examination finished with further questioning about the Estate being better off having sold Brickigoe but the witness reiterated her earlier evidence. The archaeological work would be restricted, falconry would be difficult and any monetary benefit, in the way of purchase price received and arrears of rent, would be outweighed by other monetary losses.

Catherine Mary MacLeod (38)

[58] Ms MacLeod is the daughter of Mrs Islay MacLeod. She gave evidence that she was a furniture designer but also involved in the letting of holiday cottages at Thrumster House. She had been involved in tourism at Thrumster since moving there in August 2000 to help her mother with the Bed and Breakfast side of things. More recently, since 2011, she had started letting out the Garden Apartment and Lodge House and marketed herself as North Highland Holidays. She was engaged in a lot of different types of marketing but not much in the way of printed material and websites, which were now becoming obsolete. The main marketing was done through social media. Facebook and Twitter were much more effective than websites.

[59] People visited Thrumster for lots of different reasons but these included archaeology and wildlife. Thrumster had picked up on the archaeological interest as being very important. To some extent they were “standing on the shoulders of giants”: benefiting from the number of people travelling to Orkney because of the well-known archaeological sites there. Caithness had just as much as Orkney in that regard but not so much had been made of it. Archaeology was “a pretty major reason” for people coming to Thrumster. These people included academics but also others with a layman’s interest in the subject. They could talk to their guests about archaeology, they could offer their guests tours and what amounted to a “hands-on” experience.

[60] Unless you had a story to go along with the stones in the ground it was not so interesting. The ongoing research and excavation in areas such the Swartigill Burn provided that interest. One woman had asked her to email her next time a dig was happening so that she and her daughter, who was studying archaeology at university could come and participate.

[61] It was difficult to extrapolate the amount of revenue attributable to the archaeological interest. Welcome packs in the Cottage and Lodge informed people that guided walks were available. Nearly half the people who went to Orkney went there because of the archaeology. With specific reference to the Swartigill Burn, people were interested in what was happening there and had asked when the next dig was to be. That was scheduled for 23 September 2015 and was to be carried out by the UHI. Digs took a lot of funding and involved a long run-up but there were annual field walks which provided a recurring focus. People liked the notion of a developing story – missing parts of a puzzle being found, and having something different to see when they came back. If the Estate had no management rights over Brickigoe that could not be continued. Dr Tipping’s work was very much part of this developing story and it was hoped that students would be attracted to the area in the course of further work and that they would stay at Thrumster.

[62] She occasionally got falconers staying at one or other of the properties she managed if there was an overspill from Thrumster and the third cottage. Having been out with her dog and having seen falconry take place, she could appreciate the difficulties where grouse got up and flew over ground over which one had no control.

[63] She did not think Mr Rodenhurst would be someone the Estate could work with either in terms of falconry or archaeological interest.

[64] In cross‑examination Ms MacLeod confirmed that it was difficult to distinguish the number of people coming specifically for archaeology. It could not be done even in percentage terms. People came for lots of different reasons. It was difficult to attract people so far north so one had to use everything available. Archaeology situated elsewhere in Caithness was also used in her promotional material but she could not tell them the story of the sites in the same way as guests could be told the story of sites on Thrumster. All the other sites shown on the Highland Council website needed interpretive boards, otherwise they were of less interest. The great majority of these sites had nothing new going on. People would not come back to see, for example, Camster Cairns. Thrumster encouraged repeat business. They could tell the ongoing story of their own sites as it unfolded.

[65] The dig scheduled for September was to be on the Iron Age site, not on Brickigoe. She could not recall any dig on Brickigoe croft itself. The strategy, however, was to investigate all along the Swartigill Burn because it linked two points of interest and it was unlikely that there was nothing of interest in between. Water courses were a natural route for population movement.

[66] Mr Inkster suggested that it may be many years, if at all, before a dig takes place at Brickigoe. Ms MacLeod said that was simply not known. If Mr Rodenhurst were to buy the croft it was unlikely that he would assist in the investigation and promotion of the archaeology of the area. It may be that, as a crofting tenant, his agreement would be required for digs to take place in any event, but her concern was about the Estate being able to continue its present strategy. Mr Rodenhurst was not good at working with anyone.

[67] If Brickigoe was not part of the estate she would still get guests but they would have fewer attractions to see. If they were unable to tell the ongoing story of continuing research and excavation, as matters became static interest would fade. As someone letting holiday accommodation she was concerned to maximise the number of attractions she could offer. She accepted that the only present interest in Brickigoe was the Swartigill Burn and that nothing specific was happening there at the moment. If Brickigoe were sold she would certainly carry on with her business but she was concerned about future strategy.

[68] She paid the Estate £250 per month for each of the properties she managed, a total of £6,000 per annum. If Brickigoe were to be sold that would not result in a loss to the Estate from her side as she was on a fixed agreement.

[69] In re‑examination, when asked about the possibility of a walk being created between the two Iron Age sites through Brickigoe, she said that there was always more interest in new discoveries rather than going to see the same standing stones all the time. A nice walk could be created between those sites.

[70] Finally the witness confirmed to the court that she got repeat archaeological business; quite a few people had said they would come back and had done so. If the Estate could combine the interests of walking, wildlife and archaeology that would be “brilliant”.

Ian Ronald Giles (65)

[71] Mr Giles gave evidence that he was a retired civil engineer and had been a trustee of the Yarrows Heritage Trust since its inception in 2002.

[72] Shown production 10, he was asked how the removal of Brickigoe from Thrumster Estate would be detrimental to research envisaged by the Trust and the Estate. He replied that archaeology recognised no boundaries and that removal of this area would be detrimental to the Trust’s forward plan for conducting research there. He agreed that the strategy of the Thrumster Estate in terms of developing the archaeological interest had been given embodiment by the creation of the Yarrows Trust. The success which the Trust and the Estate had achieved so far had been achieved on the basis of good faith, with no formal undertakings whatsoever. All funding was provided on the basis of agreement on the part of the landowner to the research being carried out. If there were to be a new owner they would be starting all over again in terms of building up a relationship with that new owner. To date they had not had a situation where they had required to get the consent of a tenant to carry out work. The Trust had not carried out work on any ground not owned by the estate.

[73] Asked whether he saw potential for the creation of new pathways through areas of interest and specifically linking the two Iron Age sites, he replied that that was the way future projects were leading. There were strong indications of a link between the Iron Age sites and the present Yarrows site so there were plans to carry out a study to underpin that. A pathway up to the Swartigill Burn and into the Yarrows landscape would be a logical route. Removal of Brickigoe from the estate would not be favourable to such a scheme. From the Trust’s perspective dealing with a single owner was better than dealing with multiple owners.

[74] Asked about funding, in the course of the Trust’s existence £280,000 of funding had been applied to various projects in the area. He agreed that quite a lot of that funding would have gone back into the local community.

[75] In cross‑examination Mr Giles confirmed that he was not aware of any archaeological digs on Brickigoe in recent times. He said he was not altogether “up to speed” on the archaeology of that particular area. He was, principally, an engineer. He knew, however, that to both north and south of Brickigoe – at Oliclett and North Yarrows – there had been significant discoveries, although there had been none on Brickigoe itself.

[76] Asked whether the proposed path would give access to those sites and to the Wag of Swartigill he replied that what was envisaged was not so much a path as a guided route with markers. He agreed it was wet and boggy at the Wag. The proposed work would involve putting in raised decking to allow people to navigate the boggy areas. The creation of this route was on the Trust’s 10 year plan.

[77] Although, with a different owner, they would have to start again, he agreed that would not be an impossible task. He had no way of knowing whether another owner would be amenable to the Trust’s plans. There may be solutions in the way of the croft being sold and the retention of servitude rights for the proposed path. He agreed that none of these things was insurmountable. If such an arrangement were entered into it would cause the Trust no difficulty.

[78] Asked whereabouts in the 10 year plan the creation of the route was, he said it was down for the middle part of 2016. However, he did stress that the 10 year plan was just a means of looking forward and joining up various aspects of what was proposed. Timing of a particular project could therefore “float” within the programme.

[79] The route would have to be properly surveyed and the work would have to be costed. Funding would probably be sought from the Tannach and District Community Council. To date they had made three successful applications to that council. He agreed that it would cause a problem if they had gone the length of arranging funding without getting the tenant’s consent, in a situation where the tenant’s consent was necessary. He accepted that it would be easier to deal with an owner‑occupied croft rather than with a landlord and tenant situation because one would be dealing with one person rather than two.

[80] The significance of a monument being scheduled was that it was under the auspices of Historic Scotland who had fairly strict controls, so he viewed work on such monuments as very much a no-go area except for fully qualified archaeologists. The Wag of Swartigill was a scheduled monument but, to the best of his knowledge, there had been no excavation of it. Were it to be opened up that would involve a long process with Historic Scotland. He confirmed that a scheduled moment was protected regardless of who the owner of the land was. He confirmed that there were a lot of scheduled monuments in Caithness.

[81] In re‑examination Mr Giles confirmed that he had seen Dr Tipping’s report. The full report was a hefty piece of work but the synopsis (production 18) said a lot about the area surrounding the site of the excavation, the context in which it was set and its importance. Context was considered to be very important by the Trust because it provided an overarching picture and tied everything together. Dr Tipping’s research had extended all the way down the Swartigill Burn and on to Hempriggs Loch.

[82] If one had an archaeological site which spanned two different ownerships he would like to think that it would not make life difficult but that would depend on the owners. Certainly dealing solely with the Estate, as at present, smoothed the way. He did not know Mr Rodenhurst.

[83] At the close of re‑examination Mr Inkster asked to be allowed to question the witness on production 18, as it had not been referred to in cross‑examination. We allowed him to do so. He suggested to the witness that Dr Tipping’s research might not have extended all the way to the Loch of Hempriggs but might, instead, have been confined to the head of the Swartigill Burn. The witness replied that he had not come away from the report with any firm conclusion as to the extent of the research.

Ian Guy Hamilton Wallace (73)

[84] Mr Wallace described himself as a gundog trainer and farmer. He lives at and works Oliclett Farm, part of the Thrumster Estate.

[85] His evidence was principally to do with falconry. He had been a falconer since 1956 when he had joined the British Falconry Society of which he was now an honorary member.

[86] He spoke to the virtues of Thrumster for falconry. It was popular because it was flat. The advantages of it being flat were that you could see the dogs working and that the dogs could cover more ground with a greater chance of finding more quarry. Also, a falcon worked purely on appetite: it would hunt only at the appropriate point in its feed cycle. When it killed quarry it did not bring it back; you had to go and find it. Flat ground meant that you could see where the bird was and take the quarry off it before it gorged itself.

[87] Brickigoe was right in the middle of the falconry ground. The ground itself was not that good, in as much as it did not have much heather, but it was “slap bang in the middle” of the main hawking area. Removal of Brickigoe from the estate would be disruptive because you could not control the movement of a pointer or setter. They had to be allowed to do what that they did naturally, to go where they wanted to go. The other thing was that when quarry was flushed there was no way of saying where it would go. The kill could take place 500 yards or two miles away. Visibility and room to manoeuvre were, therefore, two very important things.

[88] Brickigoe was also significant for snipe. There were snipe all over the Oliclett Moore. Snipe hawking was becoming more popular.

[89] Were Mr Rodenhurst to buy Brickigoe he would certainly not be a person with whom one could work. He said that “without fear of contradiction”. Legally, when a bird was killed it belonged to the person on whose land it had been killed but Mr Wallace did not expect Mr Rodenhurst to be any more co-operative in relation to the matter of hawking than he had been on anything else.

[90] In cross‑examination Mr Wallace was questioned about his relationship, professional and personal, with Thrumster Estate and Mrs MacLeod. He had been coming to Thrumster since 1989. He had been in a business relationship with Mrs MacLeod at Oliclett Farm. She was officially the tenant; she did all the paperwork and office work while he did the manual work. They had had a business known as the Caithness Goose Company, providing geese for the Christmas market, but they had found themselves working for nothing. The farm was now run as a sheep farm. He visited Thrumster House about twice a week. He had the use of a room and a bathroom there because he had no hot water at the farm. Oliclett was his main residence. He denied that he and Mrs MacLeod were a couple: they lived separately.

[91] Asked about the importance of high ground for falconry, Mr Wallace said that it was used for the training of young falcons. Falconers liked to take young birds onto steep hills where they would get the benefit of the up-draught which would carry them as high as possible. But birds became experienced in a matter of weeks and high ground did not then matter.

[92] Yarrows was not better than Brickigoe for hawking. Both areas were needed so that grouse in any one place were not being harassed daily.

[93] A passage from Mrs MacLeod’s evidence in the previous case (at pages 14 and 15) about the relative importance of South Yarrows and Brickigoe for grouse shooting purposes was put to the witness. In that passage Mrs MacLeod is recorded as having said that South Yarrows was very important as it comprised most of the quality hill ground on the estate and that on high ground birds were less prone to disease because of the colder conditions. The witness responded that a moor would change from year to year depending, among other things, on heather quality. Heather was 90% of what grouse ate. Heather cover on South Yarrows and Brickigoe was the same but it was the quality of the heather that mattered. It was true to an extent that birds were less prone to disease on high ground but the heather beetle was indifferent as to where it attacked.

[94] If Mr Rodenhurst were to fence what was presently open ground it would mean less of an area over which the dogs could run and less of an area in which to find grouse. Fences would not make falconry impossible but would limit the area over which it could be practised. Asked whether he was aware of Mr Rodenhurst ever having stopped falconry on his croft, the witness replied that most people kept off Mr Rodenhurst’s croft. Mr Inkster pressed this point but the witness said that he was a working farmer; he was not always able to see what hawking was going on at Brickigoe. He passed the time of day with hawkers should they come by his farm but he could go a week without seeing a soul. When Mr Rodenhurst had arrived at Brickigoe Mr Wallace had gone to introduce himself but he had been sent away “with a flea in my ear” and the relationship had gone downhill ever since.

[95] Asked about the effect of wind farming on falconry, a lot was said on both sides but no one had actually carried out any factual scientific research. There was no proper independent objective survey and everyone who spoke on the subject had his own agenda and relied on evidence which comprised mainly hearsay. So he could not comment.

[96] When parties were out shooting they were always accompanied by the gamekeeper but for falconry the keeper was there mainly to take the hawkers from one place to another. It was possible that Mr Rodenhurst spoke to hawking parties and passed the time of day with them but he had not seen it happen. He could not comment on whether Mr Rodenhurst’s difficulty was only with the Estate and not with falconers but falconry was part of the Estate. It was “slightly possible” that Mr Rodenhurst would not have any difficulty with quarry being killed on his land.

[97] As to the incidence of grouse on Brickigoe he had seen coveys there. He identified an area to the east of the croft on production 10. It was true that the ground was boggy there but grouse learnt to deal with it. He had seen coveys there most years when moving his sheep. Mr Inkster put it to him that there was habitually one covey to the south of Brickigoe and none to the north. Mr Wallace explained that grouse take different territories every year. In recent years he had seen coveys on both sides. Indeed he had seen the same coveys on both sides, one day at Oliclett and the next at Yarrows. It was a very fluid situation. Asked where one might find most grouse on the estate, that varied from one year to the next. When he had first come to Thrumster, Raggra had been “heaving” with grouse but that had now changed. Over the season grouse tended to be fairly evenly spread. He was not trying to be evasive but concentration of birds depended on many things. Although he did not accompany the falconers he did speak to the gamekeeper from time to time and Mr Lodge would tell him where grouse had been found the previous day. Also when shooting parties were out one could hear the guns (and therefore know where they had found something).

[98] He was not able to comment on how many falconry parties came to Thrumster in a year. That was the Estate’s business. Asked whether there were less grouse now than historically, he explained that grouse populations had always been cyclical, with good years and bad years.

[99] Mr Inkster asked if comments made on the online forum about low numbers of grouse at Thrumster were true. The witness replied that some of the falconers who came up “didn’t have a clue”. Also, often their dogs were not up to the job, being of the wrong breed or having been wrongly bred. Comparing Thrumster Estate to others in terms of grouse populations, he did not know how it compared. It was the topography, the flat ground, which made it so suitable. Perthshire and Inverness-shire may well have more grouse but were less suitable for falconry.

Robert Michael Lodge (28)

[100] Mr Lodge gave evidence that he had been a gamekeeper at Thrumster Estate for over two years.

[101] On production 10 he was shown Brickigoe croft outlined in red and asked what difficulties he would encounter in his work if he was unable to use any part of that area. He explained it had to do with dog work. Dogs had to be walked into the wind. The ways in which he could do that would be restricted if that area of ground had to be avoided. Moreover grouse were never in the same place every year. They moved about. Asked whether he would know where the boundary of the croft was on the ground he said he would not.

[102] Asked about the effect of falconry and, in particular, what would happen if a falcon killed prey on ground, he said that there was nothing that could be done to prevent that. Once the falcon was airborne there was nothing you could do to control its movements.

[103] He did not expect Mr Rodenhurst to be cooperative. He said that on the basis of experience to date.

[104] He confirmed that there was snipe shooting at Brickigoe.

[105] In cross‑examination he said that, before coming to Brickigoe as gamekeeper, he had worked in the aviation industry, selling equipment for aircraft. He had done that for about six years. He had had a break of two years during which he had worked as a tyre fitter. He had been interested in gamekeeping since the age of 13 or 14. His father used to do stalking and he had first been taken out stalking at around that age.

[106] As to qualifications for gamekeeping, he had done a course at Thurso College after leaving school. He had also helped out on the estate during holidays.

[107] In terms of day-to-day management of game his work involved vermin control; dealing with foxes, crows, weasels, stoats and so on. It also involved muirburn. When falconry parties went out from Thrumster he accompanied them and stayed with them, whether they were after grouse or rabbits. He would never leave them on their own. It was put to him that the former gamekeeper had done that but he thought that very unusual. Possibly, were he out rabbit hawking over an area near the centre of the estate, he may not stay with the party but out on the hill he would always stay with them. In response to a passage quoted by Mr Inkster from our previous judgment to the effect that Lance Nicholson, his predecessor, always accompanied shooting parties but generally left rabbit hawking parties unaccompanied, he said that different people did things their own way. The only person who was allowed to go out on his own was Paul Smith because he knew what he was doing.

[108] He was on Brickigoe croft from time to time, in the course of his work. He had never encountered Mr Rodenhurst when there. He was not aware of Mr Rodenhurst having caused any difficulty with falconry in that area.

[109] Questioning then moved on to the location of coveys of grouse on Brickigoe. On production 10 he indicated where, on Brickigoe, they were to be found. He indicated areas on the hill to the west of the enclosures at the centre of the croft and also an area towards the extreme eastern boundary of the croft. Asked where one would find most grouse on Thrumster Estate he said that would be the top of Yarrows Hill. However the area of the Swartigill Burn had always been good for grouse. He could not say that Yarrows was better for grouse than Brickigoe because each year was different. Last year they had got more grouse on Brickigoe than on Yarrows. He was referring to grouse hawking, not shooting.

[110] Mr Inkster asked him what the position would be if he had unfettered rights to shoot over Brickigoe but falconry had to be managed outwith the boundaries of the croft. He replied that that would be very difficult because Brickigoe occupied such a central location. Asked whether it would cause great difficulties, he thought it would. He had to move guests around as it was. They did a lot of walking in a day and Brickigoe was “a good part of what we need”. Were Brickigoe to be fenced, matters would be worse. He would then have to climb over the fence and take dogs over. To go round the outside of the croft would be “a hell of a walk” but, even then, you could not be sure that a dog would not run onto the croft through an open gate. If a falcon came down on Brickigoe one would have to climb over a gate and get permission to retrieve it and that would not be easy. He was not familiar with Mr Wallace’s view that a hawker was entitled to retrieve his hawk but that the game killed belonged to the land owner. If the bird killed belonged to the landowner it meant you had to leave a dead grouse on the ground or else go and find the landowner to give it to him.

[111] He did not disagree with the statement, taken from Mrs MacLeod’s evidence in the previous case, that birds are less prone to disease on high ground. He said that you would find grouse on high ground but the high ground was a relatively small area, which could be covered in 20 minutes to half an hour.

[112] He did not think the new wind farm was going to cause any difficulty. The one at Camster caused no difficulty. He did not see that as being an issue.

[113] As to the number of falconry parties at Thrumster each year, he had never counted them but he thought somewhere between eight and 14. Fourteen years ago it would have been true to say that grouse was thin on the ground at Thrumster but in recent years, and in particular over the last two years while he had been there, covey numbers had been “brilliant”. How many birds parties found depended on when they visited. October always seemed to be a poor month.

[114] To a suggestion from Mr Inkster that if Mr Rodenhurst was uncooperative it was because of on-going issues of security of tenure with the Estate, he thought that was possible but it did not explain why Mr Rodenhurst had been awkward with him, he having been there for only two years. Indeed Mr Rodenhurst had been difficult with him even before he worked for the Estate. He had always been like that. It was up to Mr Rodenhurst whether he was happy to let falconry continue over the croft. It was possible that he would be but then, again, most things were possible.

[115] In re-examination Mr Lodge was asked about the significance of Oliclett being a Special Protection Area. His understanding was that the area could not be fenced because of that classification.

[116] Although he had identified Yarrows Hill as a hotspot for grouse he agreed that he would not just take parties there. That would be one session only; you had to move on, you could not stay in one location all day.

[117] That concluded the respondents’ evidence for this part of the proof. We moved on to the applicant’s case. For convenience the evidence of Mr Wood was taken first.

Arthur John Richard Wood (63)

[118] Mr Wood gave evidence that he had come to work for Highland Regional Council as their Principal Archaeologist in 1994. He had been responsible to the Council for the Yarrows Trail. He had held that responsibility for 10 years until 2004, when he had left the employment of the Council and set up his own consultancy. Since then he had participated in excavations at Brickigoe in 2009. These had been trial excavations in response to Mr Rodenhurst’s planning application for consent to build a house. He had been engaged, not personally by Mr Rodenhurst, but by an agent. The excavation had turned up a “complete blank”.

[119] Reverting to the Yarrows Trail, he did not know what current arrangements for its upkeep were but certainly during his time at the Council it had been the Council who had looked after it and paid for repairs. He was aware of the assistance of the Yarrows Trust but it had only been coming into existence by the time he had left Highland Council. He was not aware of any projects involving the Trust and the Yarrows Archaeological Trail.

[120] In comparison with what was available in the way of archaeological interest elsewhere in Caithness, Yarrows Trail had a density of different sites on a short circular walk and that made it very attractive but Caithness was “stuffed with archaeology”. There was an awful lot of it, both from early and later archaeological periods. Asked whether Camster Cairns would be more attractive that the Yarrows Trail, it depended on the visitor. For the keen walker Yarrows was preferable but parking was easier at Camster Cairns.

[121] He was also familiar with the Wag of Swartigill. He identified it on production 10. He confirmed that it was a scheduled monument. Shown production 21, the entry in the Schedule of Monuments, he noted that it was dated 1935, so what the document represented was its rescheduling as part of a programme being carried out by Historic Scotland in 2002. (We observe here that there may be some doubt on that matter. It appears to us that the reference to 1935 in production 21 is merely the date of execution and recording of the disposition referred to there.) The Wag consisted of a grassy mound with some stone “footings”. He did not think it had any particular attraction for visitors at the moment. It would have to be excavated and some interpretive provision would have to be made to make it interesting. There were a great many grassy mounds in Caithness. He did not think this one had any particular quality as compared to the others.

[122] The effect of scheduling was that any action to be carried out on the site required the consent of the Scottish Ministers through Historic Scotland. Such consent would not be given without a very careful programme of research being in place. The quality and value of the proposed research would have to outweigh the disturbance to the site. He doubted whether tourism would be a good reason for disturbing the site. There would have to be a “solid research objective”.

[123] He did not think that the suggestion that the Yarrows Trail could be extended up through Brickigoe, along the burn, to the Wag of Swartigill and on to the Iron Age site to the east was feasible. It would not make much of a tourist trail. It would require a lot of signage and interpretive plaques. If he were asked to extend the Yarrows Trail he would certainly not go in that direction; he would go south to the Cairns of Warehouse where there was a good density of sites; a density absent from Brickigoe.

[124] He was familiar with Dr Richard Tipping. He was referred to productions 17 and 18. He was not sure where Dr Tipping had taken his samples. The importance of sediments generally was not in doubt but he questioned the relevance of that to the ownership of the croft. Further research was going to produce interesting results but not ones you were going to be able to go and visit except in a museum or read about in a publication or something of that sort. It would certainly not constitute another Yarrows Trail. He was not sure what Dr Tipping meant by the “head of Swartigill Burn”.

[125] Under reference to production 19 he was asked about Dr Pannett’s and Dr Brophy’s discovery of “flint scatter” at Oliclett and the northern end of the Yarrows landscape. There was no question but that some very important discoveries had been made at Oliclett but, again, he did not think that was very pertinent to the ownership of the croft. The research could continue regardless of who owned the land. Asked whether flints were something one could find all over the place, it was true to say that in this area there was a tremendous concentration of such material. What tended to happen was that the flints were taken away and displayed somewhere else. The scheduling of monuments did not extend to flint scatters and archaeological deposits of that kind. He understood references to the Yarrow Basin to be to the wider area but he thought most of the flints had been found on the Oliclett site. In terms of a link between tourism and archaeology, it was perfectly reasonable to promote the general archaeological interest for tourism purposes. There was much to see, there were many sites to walk around but the excavation of sites was something different. It was an unrepeatable experiment. It was done either as a “rescue mission” or with a research objective. Otherwise the general principle was that things should be left in the ground; excavation for tourism would be unethical. He did not think the exclusion of Brickigoe from the Thrumster Estate would have any effect on archaeological interest tourism in this area. People would come to stay at the Estate’s properties regardless of whether it included Brickigoe.

[126] In cross-examination he agreed that, when he had said that it did not matter who owned the land, he was assuming the role of the landowner to be that of a willing partner. He did not know Mr Rodenhurst.

[127] He had walked along the Swartigill Burn some years ago. He was aware of the Iron Age site. To a proposition that Brickigoe was at the centre of an area of extreme interest in landscape terms, he said that there was a great deal of interest in the landscape generally in this area but he did not think much of it focused on Brickigoe. Discoveries had been made to the north and the south of the croft and even the Wag was in a corner at the extreme edge of the croft. In principle, leaving out personalities, land ownership did not make a difference. It was, however, fair to say that Brickigoe was at the centre of the Yarrows Basin. He also agreed, in answer to the court, that, since discoveries had been made to the north and south of Brickigoe, sites may well be found within it. Such sites, he said, would presently be buried but studies based on aerial photographs could be carried out. He thought it was unlikely that monuments were to be found on Brickigoe.

[128] He agreed with Mrs MacLeod that “hands-on archaeology” gave the Estate a valuable income stream, that people would come back if they knew that something new was going on, that Brickigoe was an integral part of Thrumster Estate and that removing Brickigoe would create a hole in terms of the state’s strategy for carrying on research. He was not clear, however, from an archaeological point of view, how change of ownership would necessarily damage any research programme. Others might have reason to believe that it would but, in principle, he did not see why it should.

[129] In re-examination he confirmed that it was unlikely that a Yarrows type monument would be found on Brickigoe. If people were coming to see monuments, they were all at South Yarrows. If people were coming to do excavations, he was not sure that that was going to be hindered by a change of ownership. If he was doing research he would expect to get permission from both owner and tenant in any event. Two permissions would be required.

[130] He agreed with a proposition from Mr Inkster that, even if Brickigoe were to be removed, there was enough on the rest of the Thrumster Estate to keep archaeologists going for a long time. Brickigoe, he said, was only geographically central. There was not much to see, only the Wag.

George Rodenhurst (64)

[131] Mr Rodenhurst gave evidence of how he had come to Brickigoe. He described the process of assignation of the tenancy. The Crofters Commission had held a hearing as there had been an objection. They (we took that to be a reference to Mr Rodenhurst and his family) had paid £62,000 for the assignation and £2,200 for SFP entitlements and professional fees.

[132] They had asked Jim MacMillan, the agent who had been handling the sale of the assignation and had been advising them at the time, to put together a five year plan for the croft. The croft had been in a terrible state. Fencing was non-existent or not worth repairing. They had set about clearing 60 to 100 years’ worth of rubbish. They intended to apply for planning permission for a house and a steel framed barn. They had bought a pedigree herd of Highland cattle.

[133] An archaeological dig had had to be carried out as a condition of planning permission for a house. That was subsequently expanded beyond its original area and the whole thing had cost £2,000. A grant for the building of the house had been agreed in principle in the sum of £22,000. That agreement had now expired. Decrofting had been granted conditional upon purchase within five years. That had also elapsed. He would have to apply again. He had wanted to buy the site of the house. He insisted that he had approached Mrs MacLeod, despite her denials. He had attempted to do it informally, on the advice of Messrs MacLeod & MacCallum, his then solicitors, because it would be less expensive and matters may flow more easily. The alternative, he had been told, was to apply to the Land Court. Mrs MacLeod had refused to cooperate. He had then thought about putting the tenancy up for sale. There was no point in flogging a dead horse. Jim MacMillan had retired from croft consultancy and been replaced by Mr David Brewster. In conjunction with Mr Brewster they had drawn up another plan, which was to proceed “gently and quietly”, buy some ewes, do a bit of ditching, put a roof on the shed and then purchase the croft.

[134] He did not understand where the Estate’s attitude was coming from. Maybe they thought that by holding things up and making themselves disagreeable they would drive him off and he would give up. Everyone had told him that that was their policy.

[135] He was not a man who made friends easily. Yet he spoke to people when they came his way. In the past six or seven years he had spoken to 20 to 25 falconers. He had not ignored them. One had to be interested in somebody walking around with a hawk on his arm and he himself had trained sheep dogs so he had a point of interest with those people.

[136] In terms of his present plans, he had only 17.75 hectares of good ground. All the rest was rashes, heather and about a third of it was bog. He had 80 ewes, four tups, five cows, three bulling heifers and a bull at Brickigoe. He had a pedigree flock of 12 black faced ewes, as well as some other stock at his other croft at Bruin Park where he lived. That holding was owner occupied. It was about seven miles from Brickigoe. He visited Brickigoe three times a day during lambing and twice throughout the rest of the year. His intention was in due course to live at Brickigoe.

[137] Asked about his plans, were he able to buy the croft, he thought the croft could not do a lot more than it was doing now. Reseeding would achieve a certain amount, a building would be provided for the housing of the cattle and some fencing would be carried out along both sides of the road leading through Brickigoe to Oliclett. The boundaries of the croft would be fenced, except the bottom boundary (which we took to be the eastern boundary), which would not be fenced because Mr Brewster thought the ground there to be so poor and wet as to be of no value. Some 843 metres of ditches required to be cleared. Mr Brewster was looking into the availability of grants for that under the Land Management Option Scheme. Mr Brewster had also advised putting small culverts into the main ditch. He was already on a Land Management Option Scheme for the cutting of rashes and he was hoping to combine that with a new scheme next year. If one looked at the land all around, Brickigoe was a poor croft.

[138] Mr Rodenhurst then gave evidence about how rent payment had been rejected and how he had taken advice from Messrs MacLeod and MacCallum and the Crofters Commission and that since then he had been paying his rent payments into a separate account, opened for that purpose. The rent to date was therefore available.

[139] In terms of carrying out his intended plans, he would not do anything else unless and until he owned the croft. He would not feel secure spending something in the region of £160,000 to put the croft in shape if he did not own it. His plans for the croft would do the Estate no harm. Their biggest problem would be that he himself would be permanently resident in Brickigoe. The truth was that Mrs MacLeod did not want anyone from outside Caithness there. Indeed, in his opinion, Mrs MacLeod did not want any crofters at all: she wanted total control. She regarded them as a hindrance, possibly even a nuisance.

[140] Questioning moved on to archaeology. There had been no excavations on the croft other than the one carried out in connection with his planning application. He was aware of the Wag of Swartigill. It was just a grassy bump with two or three stones on top. He knew nothing about archaeology. It was a “hellish” walk to get to it. It was very wet all around. It was nowhere near as scenic as Yarrows Hill. It was just bog and wetland and this area of grass with stones on top. If archaeologists wanted to dig there he would “even lend them the spade”. It would not be a problem to negotiate with Mr Giles or anyone else from the Yarrows Trust with a similar mind-set.

[141] He had not seen the Iron Age site to the east of Brickigoe. He had been down the Yarrows Trail twice, with his children and step-children. There was no comparison between it and the Wag of Swartigill. He would have no difficulty if Dr Tipping came along wanting to do more study of flint scatters on Brickigoe. He did not know the man but his investigations did not sound invasive. It was being excluded from the process of consultation which was his (Mr Rodenhurst’s) problem. Were he to be included there would no problem.

[142] Archaeological tourists were coming to the Estate regardless of the fact that he was at Brickigoe. His purchase of Brickigoe would make no difference to the Estate.

[143] Turning to falconry and the evidence of Mr Wallace, his description of having been ordered off Brickigoe with a flea in his ear had been a slight exaggeration. Mr Wallace had come in his usual bombastic manner, saying he was the Estate Manager and that Mr Rodenhurst could not keep a bull because he himself kept a bull. He had spoken of being the Estate Manager, the boyfriend of the Estate owner and a partner with her in the Oliclett farm and in a goose company.

[144] Questioned about Mr Lodge, he thought that Lance Nicholson, his predecessor, had been “a good man in a bad spot”. Mr Lodge used to run around with Mr Nicholson, with a gun out the window of their pick-up. There had been some disagreement about the gamekeepers shining lights on lambing sheep and he had “chased” Mr Lodge for doing so. He had got a lot of abuse.

[145] Turning to falconry, he estimated that he had seen 20 to 25 parties on Brickigoe over a period of seven years but he acknowledged that they may have been there and he had not seen them. One individual came back regularly and there were also some Belgian hawkers who visited. He had spoken to the individual who came regularly many times, saying hello and asking how things were going. He had spoken to the Belgians only once. They seemed to go straight up the hill to Oliclett. He had never seen the gamekeeper with the Belgians and had only seen him with the hawkers once this season. He had seen only two lots of falconers this year; the number seemed to be smaller than in previous years.

[146] As to whether higher ground was better for falconry, the parties seemed to go out between the end of Brickigoe croft and Brickigoe loch towards Oliclett. On the whole they were doing more falconry on other land rather than on Brickigoe.

[147] Asked about numbers of grouse on the croft, last year there had been one covey comprising one pair and three chicks and, separately, a cock on his own. The covey had been on the fence line between Blackhill and Brickigoe, between Robert Barnetson’s croft and Brickigoe. He denied that there had also been coveys to the north, east and west. Seven years ago there had been a lot of grouse but they had declined rapidly. The winter of 2010 had been severe and a lot had been lost.

[148] Turning to rabbit hawking, there were very few rabbits on Brickigoe, just a few round the quarry. There were lots of rabbits towards Thrumster House; he saw dozens of them on the road.

[149] Until today he had never heard of flying hawks for snipe.

[150] Turning to shooting parties, as opposed to hawkers, they shot over the rough ground. He had not seen many shooting parties either. However he acknowledged that in winter the days were short and he had a lot to do so he may not have seen them all.

[151] Lance Nicholson had told him that South Yarrows was the best place on the estate for grouse; that there were more grouse on South Yarrows than on the rest of the estate combined.

[152] Were the court to order the sale of the croft to him, he would have no difficulty whatsoever with the granting of a shooting lease over Brickigoe. Similarly he would have no difficulty with allowing falconry to continue. It had not made any difference to his operations over the past seven years and it would not make any difference in the future. At the present rate of grouse decline they would soon be chasing the last one anyway. Were he to be owner-occupier of Brickigoe that would not affect the number of falconry tourists coming to the estate. He pointed out that if he were unsuccessful in buying the croft he would continue to be a tenant there in any event. Asked by the court whether he was saying that if he were owner occupier of Brickigoe he would do nothing to interfere with the carrying out of falconry he replied that he would not: it did not make any difference to him. Asked whether he was saying that he would not put difficulty in the way of falconers if they came to Brickigoe he said he would not. Nor would he want dead grouse; he would rather see the grouse walking around alive.

[153] Cross-examination began with some questions about his acquisition of the croft tenancy by assignation. Mrs MacLeod sought to put to the witness a document which she said had come from the witness’s wife (or possibly former wife). Having seen the document, although acknowledging that Mrs MacLeod was entitled to test the witness’s credibility, we took the view that questioning on the basis of the document was likely to take us to matters very far removed from those we had to decide and not be conducive to the orderly leading of relevant evidence. We therefore did not allow the document to be put to the witness.

[154] Questioning turned to Mr Rodenhurst’s plans for the croft. Mrs MacLeod asked why, having been reassured of the security of his position as tenant by the Crofters Commission, he had not put his plans into action. He said that he had employed a contractor to do some digging of ditches and the cleaning up of the yard. He had put a second hand roof on the building. However he had not received written confirmation from the Crofters Commission of the advice they had given him: he had been promised it but it had never come. At his age £100,000 was an enormous amount of money to spend and he was not prepared to spend it without security. He had always felt under some sort of threat from the Estate, as to his security of tenure. He had therefore carried on only a modest crofting operation.

[155] He admitted having several convictions at Wick Sheriff Court but said that he had been under a lot of provocation. He denied that at the end of 2008 he had ordered hawkers off Brickigoe. He had never put anyone off, even a man whose hawk had killed a bantam hen. He quite liked hawkers; they were very interesting.

[156] He confirmed that his plan was to do up Brickigoe and leave Bruin Park for his family. He said his family owned Bruin Park; there were five “shareholders”.

[157] He denied that the sale of the croft to him would cause a hindrance to the archaeological interest. He could get along fine with a man of the same attitude as Mr Giles.

[158] He denied that the burning down of a building at Brickigoe had been done deliberately.

[159] Turning to falconry, Mr Rodenhurst was asked at what time he visited his croft during the sporting season. He explained that if he had a dog to train he went there earlier in the day around 7.00 to 9.30 am, before it got too warm, or in the evening after 6.00 pm. He said that he had never seen a falcon flying at Brickigoe but he did see them go up to Blackhill. Under reference to production 10 Mrs MacLeod sought to show that if he were at the steading it would not be possible for him to see hawkers on the higher ground to the west of the croft.

[160] As to numbers of grouse on Brickigoe Mrs MacLeod put it to the witness that he would not be able to see them without a proper working dog. He said that he had had a friend visiting last summer who had a German pointer and that, over a fortnight, they had spent quite a lot of time walking the croft so he knew roughly how many grouse were on it.

[161] In re-examination Mr Rodenhurst explained that when Eilidh Ross (then with Messrs MacLeod & MacCallum) had been his solicitor her approach had been to write to the Estate about the purchase of the house and if that failed to produce a response go to the Land Court. However he had subsequently changed solicitors and been advised to apply for the purchase of the whole croft. Under reference to production 13, a letter from Ms Ross to the Crofters Commission dated 12 March 2010, Mr Rodenhurst confirmed that at that time he was still the subject of threats by the Estate to the effect that he was in breach of the statutory conditions of crofting. He had spent thousands of pounds in professional fees to do with the acquisition of the tenancy of the croft and subsequent correspondence. The Estate had been completely unhelpful.

[162] He confirmed that, despite being registered disabled, he was able to work the croft more or less fully. He did what he could each day. What he could not do he got contractors to do instead. This past winter he had relied on contractors more heavily than usual because he had been more poorly than usual.

[163] That concluded the evidence at Thurso. We inspected the croft the following day. We need not comment in detail about our inspection beyond what is said further in this judgment, when we come to explain how we have arrived at our decision.

[164] The proof resumed at Edinburgh on 24 June when we heard from Dr Andrew Heald for the respondents and Mr David Brewster for the applicant.

Dr Andrew Heald

[165] Dr Heald gave evidence that he worked as a professional archaeologist with AOC Limited of Loanhead Midlothian. His academic qualifications included a first class honours degree in archaeology from Edinburgh University and a PhD in non-ferrous metal working. From 2006 to 2009 he had been a curator at the National Museum of Scotland and from 2004 to 2006 Archaeology Development Officer in Caithness. He and a colleague were about to publish a book “Caithness Archaeology: Aspects of Pre-History”.

[166] He had worked in the Caithness area since 2000. He agreed that Yarrows occupies an important place in the archaeology of that county. If one were studying the archaeology of Caithness, Yarrows is where one would start. If you had only an afternoon to spend in the county, Yarrows was where to spend it.

[167] Shown the position of Brickigoe on production 10 and asked whether he agreed it had occupied a central part of the Yarrows Basin, he said that most people’s idea of Yarrows was the Loch of Yarrows Reservoir and the existing Yarrows Trail, but that was only part of a wider complex.

[168] He was familiar with Dr Pannett’s work in this area. He was aware that she had been working with Dr Tipping to get a palaeoenvironmental signature of the area. He agreed that their work pointed to pretty important potential for understanding the archaeological and palaeoenvironmental record of this area. He was referred to production 8 for Dr Pannett’s work and production 18 for Dr Tipping’s. Under reference to the latter he was asked whether he agreed that Brickigoe would be likely to yield significant finds in the light of what Dr Tipping said there. The witness explained that he himself was not a palaeoenvironmentalist but he accepted that Dr Tipping seemed to be saying that this area would be a key area for understanding the archaeological and palaeoenvironmental records. He explained to the court that a palaeoenvironmental archaeologist was someone who studied ancient archaeology in the context of the environment of the time. That time dated from the retreat of the last Ice Age, 10,000 years ago. The science was carried out using corings for radio-carbon dating of trees and such like. These told you what the climate had been like at that time. That was the sort of work done by Dr Tipping.

[169] Dr Heald accepted that Thrumster Estate had been involved in archaeological work since the 19th century and the time of luminaries such as Dr Joseph Anderson, sometimes referred to, said Mrs MacLeod, as the “Father of Scottish Archaeology” (and, incidentally, the father of David Anderson, who, as Lord St Vigeans, was chairman of the Scottish Land Court from 1918 to 1934). He confirmed that the Estate continued that tradition and one of the things to be mentioned in his forthcoming book was the important contribution of local individuals to the research in Caithness which had led to some of the earliest discoveries made in the county. He himself had worked on Thrumster Broch and spent a week fieldwalking on the estate with members of the local community. The work at Thrumster Broch had been done three or four years ago and involved a laser‑scanning survey of the landscape, investigating “humps and bumps” across the estate. He had visited some 30 local sites with members of the local community and was now involved in the preparation of interpretation boards for the car park at Yarrows.

[170] Returning to production 8, and Dr Pannett’s work which suggested that the flint scatter probably extended along the route of the Swartigill Burn, he explained that in pre‑history people would have lived beside the water, using it as a routeway as well as a resource which made life possible. He was anxious to point out, however, that his own period of study was later than Dr Pannett’s. Dr Pannett’s began 10,000 years ago whereas his own work centred around the time of the birth of Christ and on brochs and monuments of that kind. For that reason he felt that he was not in a position to comment on Dr Pannett’s and Dr Tipping’s work. He did not know what questions they wanted answered. But, clearly, if access to Brickigoe were to be denied there would be less of an area on which to carry out research. Although he did not know what research questions Drs Pannett and Tipping had in mind, nor the details of their research design, he was aware that the palaeoenvironmental approach required the study of a landscape, not just the study of a specific site. In his own area of work a typical research project would take in an area roughly the size of the courtroom but palaeoenvironmental research required a much broader view.

[171] Asked what importance cultural heritage had as a tourism driver in Caithness, the witness responded that when he worked for the Caithness Archaeological Trust part of his responsibility had been to develop that interest, following the model of Orkney. Subsequently, when he had worked with the National Museum of Scotland, he had worked in close cooperation with a number of local museums in the Highlands and if you added it all up cultural heritage brought a substantial economic return to the region. It brought business to shops and accommodation providers. If you went to an area to see archaeological sites you would want to stay somewhere within, say, half a day’s travel of the site and you would spend money on food and so on while there.

[172] Asked about the merits of the Yarrows Heritage Trust directing a pathway along the Swartigill Burn between the two Iron Age sites, following the south-east side of the burn, the witness felt that he did not know the area well enough from the point of view of physical access to comment. The Yarrows Trust had, however, always tried to go beyond the traditional trail and to get people further into the landscape. He himself had never walked the proposed route of the pathway. He confirmed, however, that the work of the Trust and of Thrumster Estate was important to the local community and beyond. Every time he had asked to work that area the Estate had been incredibly helpful.

[173] In cross‑examination Dr Heald was asked again about the centrality of Brickigoe in the archaeological landscape. He said that he had always viewed the relevant archaeological landscape as not only comprising the Loch of Yarrows but a much wider area. He had spent a lot of time working on clusters of monuments, such as found at Yarrows, beyond the area shown on production 10, further down the A9 and on the other side of the A9. He described this wider area of interest as forming a doughnut with Loch of Yarrows at the centre.

[174] Asked whether he had ever carried out any work on Brickigoe croft, he thought the survey which he had been involved in a couple of years ago may have gone onto that area. It was one of the most surveyed areas of the northern mainland, for archaeological purposes, and the plane used in his survey would have flown across the whole area. But he had never carried out a dig at Brickigoe. That was largely because his period of interest was between Christ and the Vikings and most of the standing monuments from that period were north and east of Brickigoe. Dr Pannett, on the other hand, was interested in a period 8,000 years earlier than that and in things such as flint scatters as opposed to monuments, of which there were none from that period.

[175] Mr Inkster suggested to him that monuments were the sort of archaeology people came to see. Dr Heald replied that he could not speak for tourists but his forthcoming book started not with the birth of Christ but 9,000 years or so earlier because there was a logic to telling the whole story, as they were presently in the course of doing with interpretation boards at Yarrows.

[176] Mr Inkster having put to him that, whereas there were visible monuments on the Yarrows Trail there were none at Brickigoe, Dr Heald said that he did not know the area intimately enough. He was aware that the Wag of Swartigill was there, however. Mesolithic people had not lived in big stone monuments, they had lived in tents. So the archaeology was very different and very difficult. He thought there was potential to find archaeology in the area of Brickigoe but he did not know the area well enough to comment further. He had not seen the Wag of Swartigill although he may have walked past it at some point. There were 5,000 monuments in Caithness, the large majority of them not scheduled but Historic Scotland had scheduled the ones which were of national importance. Interference with these sites could result in criminal law penalties.

[177] Asked about the likelihood of research on such sites, Historic Scotland’s priority was preservation in situ. Their second option was preservation by record; recording and archiving what was found, as appropriate. For permission to carry out research on scheduled sites to be obtained there had to be a proper research design with a significant research purpose. Asked whether the Estate could carry out such excavations itself, he assumed that applications carried greater weight with Historic Scotland if they came from a qualified, as opposed to unqualified, person.

[178] Mr Inkster explored with the witness what Dr Tipping was likely to have meant by his reference to the “head of the Swartigill Burn” and what Drs Pannett and Brophy were likely to have meant by “land to the south of Oliclett, between the Swartigill Burn and the Loch of Yarrows” in production 19. The witness did not know what area was taken in by the reference to the head of Swartigill Burn and, as to “land to the south of Oliclett”, that could be read as everything south of Oliclett which would take in the whole of Brickigoe or, if the reference properly was to land south of the Swartigill Burn, then it would take in only part of the croft. But he did not know for sure what Dr Pannett was referring to there.

[179] Asked what the benefit of palaeoenvironmental research would be to the Estate, Dr Heald explained that Professor Tipping’s work produced radio-carbon dates which could be used to show the earliest human occupation of the north of Scotland. When one was wandering around Yarrows one was in a landscape with 10,000 years of history. Mrs MacLeod was trying to promote that heritage and trying to tell that history from its earliest beginnings.

[180] Dr Heald did not know what the legal position was, as to whether a tenant’s consent was required for archaeological research on a croft, but his own practice was invariably to obtain such consent. When he had surveyed the Yarrows area he asked the permission of all landowners and “knocked on every single tenant’s door”. He assumed that things would be easier if one were talking about a single person, as an owner‑occupier.

[181] He could not say whether it would make a huge difference to the number of visitors going to see monuments in Caithness if Brickigoe was not accessible. Obviously if individuals were planning to do research on Brickigoe and it was not available to them that would have an effect. He accepted from Mr Inkster, however, that people would probably not stop coming to Yarrows simply because they could not visit Brickigoe as well. It would only put off those “armed with Dr Pannett’s and Dr Tipping’s reports” or those wanting to go to the Wag of Swartigill.

[182] Mr Inkster put to the witness the evidence given by Mr Wood, to the effect that if one were extending the Yarrows Trail one would go south rather than north. Dr Heald said that one could draw a doughnut around Yarrows (as we understood him) and have a walkway going through any number of archaeological sites but, as to who and how many would use it, it would depend on whether you wanted to see monuments or just walk through the landscape of possibly the earliest human settlement in Scotland.

[183] In re-examination Dr Heald agreed that the situation would be different if Thrumster Estate was not the owner of Brickigoe. He agreed that they would not then be able to lead or promote research on the croft.

David Henderson Brewster (32)

[184] According to the witness details provided Mr Brewster is a qualified agricultural consultant and holds the degree of Bsc (Honours) in Agriculture and Business Management from Aberdeen University.

[185] He gave evidence that he had been providing Mr Rodenhurst with advice on the management and financing of his croft for some four years.

[186] He had walked round the croft. He identified the red delineation on production 10 as the boundaries of the croft. As to its present condition, it needed a large amount of investment on fences particularly. There were some buildings there which could be developed. Drainage work needed to be done and there was the need to keep up-to-date in the way of routine liming and so on.

[187] Mr Rodenhurst had plans to improve the croft. Assuming he was able to purchase it he was proposing to spend a significant amount of money on doing it up. He was presently helping Mr Rodenhurst with an agri-environmental scheme with that in mind but Mr Rodenhurst would not proceed with improvements if he was still only the tenant. Ownership would give him a lot more control. The croft was better on his balance sheet than somebody else’s. Asked what he thought would happen if Mr Rodenhurst was unable to buy the croft, he hoped that a good landlord-tenant relationship could be formed but he doubted it.

[188] Asked about the possibility of fencing around the hill of Oliclett on the northwest of the croft he confirmed that there was no problem with fencing in the area of the Oliclett site of Special Scientific Interest and the Caithness Peatlands Site. He had spoken to Scottish National Heritage and they were quite happy for Mr Rodenhurst to carry out fencing in these areas. There was a question about fencing the southern part of the croft but there were lochs there and fencing was probably impossible in any event. SNH had asked that fencing be done sympathetically; in August or September to avoid disruption to nesting birds and they had requested the use of low-pressure tyred vehicles to access the fencing work.

[189] He was aware that there were archaeological sites in the area of the croft but had not seen anything being done with them. He had walked the croft extensively and seen only one grouse and one snipe. There was evidence of cultivation of grouse number in the past; markers for grit for grouse, but no evidence of any large number of grouse. The land to the west of the croft was peatland and merged into the Flow Country, so, by definition, that area was wet and was not a grouse moor.

[190] As to shooting or hunting on some areas of the croft, there were areas which were so boggy that he himself had been afraid that he might disappear out of site. That was not unknown on such ground. If you were a shooter or a hunter you would have to be very careful because you were “walking on a sponge”. So far as shooting was concerned, Brickigoe was just not the place to go.

[191] Far from being detrimental to the Estate, the sale of Brickigoe would be beneficial. The Estate had not been accepting rent for the croft. If the sale went ahead they would get the arrears of rent and save the cost of management. His advice to estates owning crofts would be to sell the crofts.

[192] In cross-examination there was a difference of opinion between Mrs MacLeod and the witness as to SNH’s attitude regarding fencing on certain areas. Mr Brewster confirmed that he had been in touch with a named SNH employee by phone and email. If the fencing was done sympathetically, as already described, it was not an issue. Asked what the advantage would be of fencing, for instance, the northwest portion of the croft which he had described as being so wet as to be dangerous for stock he said the advantage would be that it would stop Mr Rodenhurst’s stock going on to neighbouring areas as well as barring the very wet area to the south.

[193] Asked when he had walked the croft, he said that it had been since the earlier hearing of evidence in Caithness, probably in May. He accepted that grouse would then have been nesting. He denied a suggestion that it was surprising that he had seen even one grouse during the nesting season. He walked hill areas for enjoyment from time to time and to see only one grouse, even in the nesting season, was very unusual. He confirmed that he had seen only one snipe as well.

[194] Although shooting was not his field he had once attended an open day at Drumlanrig Castle and had asked what was the return on capital spent on shooting. The reply had been “we are doing this for enjoyment, not to make money”. If one looked at the Thrumster Estate accounts, shooting was providing an income but not a living.

[195] Mrs MacLeod then asked about the effect of fencing on hawkers using dogs. She put it to the witness that the existence of fences would not only be hugely detrimental to that interest but would not be of any benefit to the croft either. Mr Brewster explained that in the past Mr Rodenhurst’s sheep had been “terrorised” by other parties. The benefit of fencing lay in the security of his livestock, their protection and prevention of them straying. As far as the effect of fences being in the way of hunting dogs was concerned, he didn’t know a dog worth its salt which could not jump a fence and people would also be able to get over the fences they were proposing to erect; they were not deer fences.

[196] Questioned about his evidence as to the management costs of Brickigoe to the Estate, Mr Brewster said that he had included legal fees for the present case. This was a small piece of land on a very large estate and pro rata the income it produced was very small.

[197] The description of Brickigoe as a very small part of a very large estate was challenged by Mrs MacLeod who pointed out that it was 10% of the area of the entire estate and 37% of its croft land. Mr Brewster understood that there was a conflict between the figures used in the court papers and those which appeared on the Estate’s website. Mrs MacLeod explained that conflict in terms of additional land over which sporting rights were held.

[198] Returning to the question of why more development had not been carried out at the beginning of Mr Rodenhurst’s tenancy, Mrs MacLeod put it to the witness that a tenant could improve the ground without owning it. The witness felt that was a question for Mr Rodenhurst but his client had a difficult relationship with Mrs MacLeod. However he was intent on building up his herd of cattle, on improving the croft and investing in it. To a suggestion that it would not have taken much investment to buy a house site, he responded that there was no point given that Mr Rodenhurst already had a house elsewhere.

[199] In re-examination Mr Brewster agreed that, if the court found in Mr Rodenhurst’s favour but ordered the granting of a shooting lease over Brickigoe in favour of the Estate, the reference to land being taken away from the Estate’s sporting interests was irrelevant. If a shooting lease were to be granted there would be no detrimental consequences to the Estate.

[200] In questioning by the court as to the viability of the substantial investment on a croft such as Brickigoe, Mr Brewster felt that fencing was important. One could not croft that land without fencing it to prevent, for one thing, another person’s bull coming across the boundary and putting Mr Rodenhurst’s heifers in calf at the wrong time. The continued absence of fences would lead to chaos.

Submissions

For the respondents

[201] Mrs MacLeod opened by saying that she found herself once again facing having to contest the removal of an essential asset from the Estate. Brickigoe was essential for the running of the Thrumster Estate business. Running a small estate like Thrumster was very difficult; few rents came in and there was not the same number of birds as there were on grouse moors further south so they had to rely on their unique selling points which were falconry, archaeology, palaeoenvironmental archaeology and tourism related to these interests.

[202] Over the last 10 years they had built up a business around these matters. She would concentrate on falconry and archaeology. The Estate was relying on the “substantial degree of hardship to the landlord” defence.

[203] Taking, first of all, the extent of ground to be removed from the estate, it amounted to 10% of the estate’s entire land mass and 36% of its tenanted croft area. The removal of Brickigoe would create a very large gap right in the middle of their operations.

[204] Taking this as it applied to falconry, in order to minimise disturbance to the birds, things were managed in such a way that falconers never entered on the same piece of ground within a fortnight to three weeks. The amount of hill ground which would be removed would make it very difficult to achieve this. It was not just the extent of the ground to be removed but its characteristics. She referred to the letter from Mr Upton, production 22, which refers to Thrumster Moor as having been recognised by UNESCO for its intangible cultural heritage. She referred to what is said by Mr Upton about the effect of the removal of such a large area in the middle of Thrumster on falconry. He said it would make it nearly impossible to fly over any of the rest of the estate. Thrumster would become unsuitable for the sport of falconry and consequently the Estate’s business would be badly affected.

[205] She made reference to two authorities produced by Mr Inkster and relating to the right to follow game on to neighbouring ground. One she described as “an ancient criminal case” (Donald v Boddan) and the other, from Scott-Robinson’s The Law of Game, had been superseded by the Wildlife and Natural Environment (Scotland) Act 2011. This stated that game birds could be taken in season by a person having a legal right to do so. If the right to do so had not been reserved it would become an offence to use a falcon to kill grouse on Brickigoe if Brickigoe no longer belonged to the Estate.

[206] Under reference to production 10 Mrs MacLeod sought to demonstrate that it would be well-nigh impossible to fly hawks anywhere around Oliclett, Hill of Yarrows and, indeed, the east side of the croft also, in that event. These were all moorland areas with Brickigoe right in the middle.

[207] Thrumster Estate Fieldsports had been operating since April 2002. It was her own business. Falconry made up about 25% of its income and if that were to be forfeited it would make it very difficult for her to pay the rent payable to Thrumster Estate Ltd. Falconry was a traditional sport, associated with Caithness, particularly with Thrumster and Camster, for well over 100 years. It would be very difficult to replace it with any other source of income. For shooting, game numbers were low and therefore shooting had to be limited to “walk‑up shooting” with pointers and setters and involving only small groups of people.

[208] The importance of falconry to the Estate had not really been argued fully in the last case because it had not been understood that falconry could not be included in a sporting lease.

[209] Turning to archaeology, it was a special interest of hers and a major tourism driver. Projects carried out on Thrumster had brought £0.25m (Ian Giles’s evidence) into the economy since 2001. The discoveries then made had sparked the formation of the Yarrows Heritage Trust and the creation of the Yarrows trail. The east of Caithness was classified as economically disadvantaged and that sort of income was, therefore, very important. Thrumster had gradually been building up opportunities for people to get involved in fieldwalking and small excavations. They were building up a picture of a very important landscape, comprising the oldest remains in the country and taking the story from that time right through to the present day. She had seen an upturn of interest in archaeology among people visiting and people wanted to come back and see more. There was a large market, in the way of people going to Orkney, to be tapped into.

[210] Although there was only a single known monument on Brickigoe, the Swartigill Burn ran through the croft and it was of extreme interest both in terms of archaeology and geology. Studies were aimed at putting together a complete record of climate change going back to the last Ice Age. This would be a huge project which the Estate and others would like to carry out in future. Brickigoe lay in the middle of the Yarrows Basin. It also controlled access, through the track running to the Oliclett site. That was a public right of way but it went through Brickigoe.

[211] The Estate and the Yarrows Trust had, over the years, built up a lot of community involvement, particularly with the local school taking part in fieldwalking and things such as making pottery in Neolithic fashion. Furthermore, the former railway station at Lybster had been renovated and pathways established from it so that people could do a circular walk of points of interest.

[212] In archaeology it was often unexpected discoveries which led to further research and visitor interest, such as the Oliclett Iron Age site and the one on the Swartigill Burn which was to be excavated in September of this year. The community had been involved in the original research in the way of local volunteers. The University of the Highlands and Islands was to be conducting geophysics research, exploring the links between the Iron Age site and the Wag of Swartigill, further upstream. Whereas much may be speculation as to what may be found when further work was done, present indications were more positive than otherwise. Peat covered ground had potential to yield significant finds (Dr Tipping) which the Estate would wish to explore. Over the past few years Cardiff, Glasgow and York universities had all been involved with research at Thrumster. And all of them had required accommodation which was one of the spin-offs for the Estate.

[213] Falconry and archaeology enabled her to run her business but they also provided income for her daughter who would carry on where and when she herself left off. She wanted to preserve for her daughter the possibility of continuing to promote the attractions of Thrumster. If falconry had to be given up as one of those interests that would cause an immediate loss. The archaeology would, of course, still be there no matter what happened but if the ability to pursue the present strategy of archaeological research and its spin-offs was taken away it was difficult to see how the ability to tell the story of the landscape could continue. Thrumster had practised falconry since the 18th century at least and archaeological work had been on-going since the 19th. The 150th anniversary of Dr Joseph Anderson beginning his work at Yarrows was being celebrated this year. Even Robert Louis Stevenson had referred to Yarrows in a poem To S R Crockett. So the Victorian antiquarians and writers were part of the story they had to tell. It was a story which could be told without the involvement of the Thrumster Estate but present spin-offs were as a result of the Estate promoting these matters.

[214] It had been said that the tenant purchasing the croft would not make a great deal of difference. When the right-to-buy legislation had been introduced the Secretary of State for Scotland had said that it would be appropriate for a person who had, with his family, worked the ground to be able recoup his investment. That was not the case here. The Estate had sold off 70 crofts to date with no difficulty. So the question arose as to why this one should pose such difficulty. That was because of its extent. It had in the past been occupied by the landlord himself as two separate holdings until 1906. It comprised a large extent of moorland which was important for Thrumster’s sporting interests and contained archaeology, the extent of which was not presently known.

[215] Loss of income from falconry was easily established: that from archaeology more difficult. Mrs MacLeod accepted, in answer to the court, that people did not come, and had not in the past come, to the area for the sake of any archaeology on Brickigoe. That was with the exception of Dr Pannett. But Brickigoe was sandwiched between Oliclett and the flint scatter at North Yarrows. Asked by the court as to how flint scatters could be used by the Estate to attract people, Mrs MacLeod referred to fieldwalking on newly harrowed fields which was done every year at North Yarrows. That project had been on-going for a number of years and involved local school children and volunteers. However it was marketed to tourists as well. Anything coming up was put on Thrumster’s Facebook page.

[216] The removal of Brickigoe would cause very grave difficulties, particularly in the managing of falconry. But it would impede their efforts to advance understanding of the connections between the north shore of Loch Yarrows and the flint scatter at Oliclett.

[217] Mrs MacLeod referred to two cases she had produced. Dunbeath Estate Limited v Henderson and others was an example of the landlord of crofting land being free to pursue his plans without the need for resumption. This was relevant to the question of whether the consent of the tenant was necessary for archaeological work to proceed. If, in the future, Thrumster Estate wanted to excavate the Wag of Swartigill and the crofter did not agree, the right to apply for a resumption order would have been lost by the sale of the land to the crofter. What crofting law gave the crofter was limited rights, the rest being retained by the landlord who could use them as he liked as long as it did not prejudice the security of tenure of the crofter. The second case was MacDonald v West Coast Salmon Limited. It showed that the relationship between the landlord and the crofter was one of tenancy by the crofter of the landlord’s property and that the landlord’s rights as owner of the subjects were qualified only to the extent of the statutory provisions in the Crofting Acts.

[218] Mrs MacLeod invited us to refuse the application on the foregoing grounds.

For the applicant

[219] The starting point was section 13(2) of the Crofters (Scotland) Act 1993. Paragraph (a) spoke of “a substantial degree of hardship to the landlord” and paragraph (b) of an order being “substantially detrimental to the interests of sound management of the estate of the landlord”. The significance of the use of “substantially” had been emphasised in MacKay v Barr’s Trustees, a case involving the defence that an order in favour of the tenant would be substantially detrimental to the interests of sound management of the estate of the landlord. In the previous case concerning Brickigoe the court had said that both the proving of substantial hardship under section 13(2)(a) and substantial detriment to the sound management of the landlord’s estate under section 13(2)(b) involved high tests. The respondents being a limited company, emotional hardship was excluded (SLC/157/05 at page 32 and 33). The court should apply these principles to the present case but three further points fell to be added.

[220] The first was that the court could only consider the position as brought out in evidence and could not anticipate what might happen in future; Geddes v Martin at page 111.

[221] The second was the need for full and detailed plans for management of the landlord’s estate and the need to convince the court of their soundness: MacDonald v Hilleary at pages 55 and 56: Waugh v Thrumster Estate Limited SLC/156/05 page 10.

[222] Thirdly, and this perhaps merely involves the reiteration of the first point, the court could not decide the case on the basis of speculation as to what might one day happen; Waugh v Thrumster Estate Limited SLC/156/05 page 10.

[223] So far as archaeology was concerned, much of the evidence revolved around what might one day be found at Brickigoe. As matters stood however, apart from the Wag and possibly a few flints having been found, there was no evidence of anything of archaeological interest on the croft. Flint scatters were very common in Caithness; they were not unique to Brickigoe. There was no immediate scheme in hand for the pathway to which reference had been made. It was part of a potential plan but the plan belonged to Yarrows Heritage Trust and not the respondents and it would, insisted Mr Inkster, require the consent of the applicant as much as the consent of the respondents if the croft remained in tenancy. Under the ownership of the applicant archaeologists would have to deal only with one party not two.

[224] All of that, however, may be irrelevant if we were to accept an argument which had not been advanced in the previous case. That argument was that a landlord has no right to carry out archaeological work on a croft because paragraph 11 of Schedule 2 of the 1993 Act does not reserve such a right to landlords. None of the reserved rights listed there could include archaeology. In MacAskill v Basil Baird and Sons Limited & Another the court had held that there was no right under the statutory conditions of tenure contained in the Crofters (Scotland) Act 1955 to extract peat from a croft for commercial sale. The same applied here. Mr Inkster acknowledged that it would be open to a landlord in those circumstances to apply for a resumption but there had been no attempt at a resumption on Brickigoe thus far.

[225] Lest it be argued that the reserved right to open roads contained in paragraph 11 of Schedule 2 might include an access pathway, an access pathway was not, in fact, a road. In Cameron v MacKinnon at page 6, the court had said that reserved rights were intended to benefit the landlord in his capacity as owner of the estate of which the croft formed part. However what was being proposed in the present case was a public right of way over the croft, not something for the benefit of the landlord. That case had been distinguished in MacDonald v West Coast Salmon Limited but MacDonald hadinvolved access by a commercial company along an existing road, not a new one.

[226] Mrs MacLeod had suggested that Dunbeath Estate Limited v Henderson & Others was authority for the landlord continuing with archaeological work so long as consistent with crofting, without any need for resumption. The facts in that case were very different, involving, as they did, an entire common grazings and at page 67 the court had said that the conservation of a small area of natural woodlands did not on its own justify the resumption of the whole hill. At page 68 it had explained how that which needed protection could be protected without the need for resumption. A comparison here would be if Thrumster Estate were looking to resume the whole of Brickigoe in order to sell it to the Yarrows Heritage Trust for archaeological purposes. The Dunbeath case had not discussed whether the consent of a crofter was needed for archaeological work: the crofters in that case had all been happy for the resumption to proceed.

[227] Mr Inkster pointed out that any archaeological activity in the area to date had been carried out principally by third parties, whether Highland Council, the Yarrows Heritage Trust or academic archaeologists. Any benefit to the Estate was indirect and did not arise in its capacity as landlord: these benefits were simply a consequence of being in the vicinity of such activity and having accommodation available to let.

[228] Even if archaeology did not fall to be discounted because it was not a reserved right under the 1993 Act, the situation on the ground had not changed since the court’s 2006 decision. Other than the Wag of Swartigill and the finding of flints, the findings in fact made in 2006 applied today as they had then. The listing of the Wag of Swartigill was of no real significance; there were many such listings in Caithness. It was unlikely that any excavation would take place at the Wag in the foreseeable future because there were far more interesting sites available in Caithness. Certainly no excavation was proposed presently. Finding-in-fact 13 made in our 2006 decision need only be amended to take account of the Wag of Swartigill and the discovery of flint scatters. At page 7 of our 2006 decision we had concluded:

“Many of the factors we identified as elements of hardship in respect of the application for the purchase of South Yarrows do not apply, or apply with less force, in the case of Brickigoe.”

That remained true today. Similarly, at page 9, the court had said:

“Unlike South Yarrows, Brickigoe is not central, or even very important, to any development strategy being pursued by the Estate.”

That also remained true.

[229] We put it to Mr Inkster that it was arguable that the picture was now different, given that Dr Pannett’s and Dr Tipping’s work was known about. In Mr Inkster’s submission there was no clear evidence that their research was going to lead to any kind of benefit for the Estate. Also it was not clear how much of the croft was being referred to by Drs Pannett and Tipping. There was no evidence that any research on Brickigoe itself was of any greater significance than that which would be done in the wider area. Brickigoe had not been singled out as being of special importance in the whole scheme of things. Moreover there was no evidence that the research would not be able to be continued if the croft were purchased. If the research continued any discoveries made could still be used by the Estate in describing the surrounding area in general. It could not be seen how research at Brickigoe was going to add to the existing level of archaeological tourism.

[230] We had to compare the situation before and after an order authorising acquisition of the land being granted; Fraser v MacKintosh at page 97. The fact was that the landlords would not be in a different position from that in which they already were, so far as archaeology was concerned. For that reason the court, in Mr Inkster’s submission, had little option but to grant the order sought. That was unless the position with falconry made a difference.

[231] In that regard, although more evidence on falconry had been led this time round than last, the findings in fact made in 2006 should not be altered. Reference was made to finding-in-fact 14 and the statement therein contained that:

“So far as the sporting interest is concerned, Brickigoe is likewise less significant from the respondents’ point of view than Yarrows. Not having as much high ground, it offers poorer grouse shooting and hawking.”

In the present case Mr Lodge had described Yarrows Hill as a hotspot for grouse. Mr Rodenhurst had given evidence of the few hawkers he had seen going up to Oliclett and of the paucity of grouse coveys on the croft. The croft was very boggy and hawkers were likely to avoid it. The Estate was not well managed for game purposes and no plans had been advanced to increase grouse numbers. All in all the position appeared no different from what it had been in 2006.

[232] Turning to the law on the taking of game, reference was made to Scott Robinson on the Law of Game and Fishing in Scotland at page 4 and the cases referred to there. The position was that if one shot or wounded game on one’s own land one was entitled to follow it onto one’s neighbour’s land for the purpose of killing it. Although Mrs MacLeod had referred to the common law position having been superseded, she had not produced the relevant statute and Mr Inkster was not aware that it had in fact been superseded. So a hawker could retrieve his hawk and game from Brickigoe where the hunt had started on other land. Mr Rodenhurst had given evidence that he had no difficulty with falconry on the croft. So, for the purposes of applying Fraser v MacKintosh, hawkers would still be able to come, fly on South Yarrows and Oliclett and may end up flying on Brickigoe with the consent of the applicant but in any event would be able to follow wounded birds onto Brickigoe for the purposes of a kill.

[233] Mrs MacLeod’s submission that falconry would be impossible if Brickigoe was lost to the Estate was not borne out by the evidence of Mr Lodge. He had referred to difficulties if Brickigoe were to be unavailable, not impossibility. Whereas South Yarrows had been protected, for the purposes of falconry, in 2006, the court had decided that there would be no substantial degree of hardship to the landlord in that regard were Brickigoe to be sold. That remained the position in 2015.

[234] So far as shooting grouse was concerned the court, in 2006, had decided that that would be adequately protected by the preservation of a sporting lease in favour of the landlords and Mr Rodenhurst had no difficulty with the same approach being taken on this occasion.

[235] Mr Inkster then turned to the respondents’ averments on substantial hardship in answer 3.

[236] First, the size of the croft relative to the rest of the estate was an irrelevancy; Geddes v Martin at page 110 where the court had said:

“The court acknowledges the unusual nature of this application in relation to the total area presently in the landlord’s possession and the area for which an application to purchase has been made. The effect of such a purchase order being granted would be to reduce the landlord’s estate to less than half its existing area. There is, however, no restriction on the size of croft land which a crofter can seek to acquire…”

[237] In 2006 the court had commented on the loss of potential profits from resumption of land but there were no plans at the moment to resume archaeological sites at Brickigoe. Resumption would, in any event, be necessary only if the crofter objected to archaeological research taking place.

[238] In 2006 the court had also commented on the loss of ability to control development adverse to the Estate’s interests (page 8). It had expressed the view that there was less likelihood of such development on Brickigoe. There had been no evidence then, nor was there any now, that any sort of development was being planned at Brickigoe. The position, therefore, was no different from what it had been in 2006.

[239] In the previous case the court had also commented on the possibility of loss of capital value to the Estate from the removal of such a large area of land. The evidence led on that matter in 2006 had, in the court’s opinion, been unsatisfactory. No evidence at all had been led on the present application.

[240] Mackenzie v Hardy & Another had concerned emotional hardship, with the croft being described as “the jewel in the crown of the Estate”. The jewel in the Thrumster Estate was undoubtedly South Yarrows. Brickigoe was no jewel. Mr Rodenhurst had a lot of hard work ahead of him to make it his jewel. In MacKenzie v Hardy the court had said, at page 68, that “on the face of it, the landlord’s loss is simply loss of a titular connection with land”. That was also the position with Brickigoe.

[241] In closing, Mr Inkster invited us to come to the same conclusion on the matter of whether a substantial degree of hardship to the landlord had been proved as the court had come to in 2006, where a distinction had been made (at page 9) between loss and hardship and the point had been made that “a substantial degree of hardship” was a high test. The test had not been met on that occasion and it was not met now.

[242] We should grant the order sought by the applicant and continue the case for consideration of the terms and conditions of sale, the fixing of a fair rent and a decision on expenses.

Response by Mrs MacLeod

[243] Mrs MacLeod said that the difficulty about retrieving game from other land was not in following wounded game but the position which arose if game was killed on the other land. That would be an offence.

[244] She reiterated that it would be very difficult for her to pay her rent to Thrumster Estate if falconry could not be carried out over Brickigoe. It was not just a question of whether one area was better than another. Falconers had to be moved around, so the whole of the estate was used and Brickigoe was as significant, from that point of view, as any other part of it. She again referred to Mr Upton’s letter saying that falconry would be nearly impossible over any of the rest of the estate, were Brickigoe to be removed.

[245] She submitted that the archaeological interest in Brickigoe was now substantially more than it had been in 2006, following the various discoveries made on and around it. Dr Tipping’s work gave much more “leverage” for establishing the proposed walkway. The introduction of a whole new client group arising from interest in Dr Tipping’s work would be extremely useful.

[246] Brickigoe was important for snipe hawking, as well as for grouse, and snipe hawking was becoming more and more popular.

[247] Mrs MacLeod finished her submissions by suggesting that, were we to grant the order sought, we should except the road running through Brickigoe from it as not having been historically part of the croft or the two crofts which had preceded the present single holding.

Discussion and decision

The witnesses

[248] We deal first with our assessment of the witnesses. They all appeared to us to be both credible and reliable. There is clearly an enormous amount of bad feeling between the applicant and Mrs MacLeod but nothing in the evidence presented by either side dented the credibility or reliability of the other. The main factual difference was as to the number of grouse on Brickigoe and the number of hawking and shooting parties that go over it. We would expect Mr Lodge, as the gamekeeper, to be best placed to speak to that. Mr Rodenhurst, as a working crofter, clearly knows the croft well but locating coveys of grouse is not a priority for him and he does not set out to look for them. As to the number and frequency of shooting parties, Mr Rodenhurst acknowledges that he is not at the croft all the time and that when he is there he is busy. So parties of hawkers and shooters may go unnoticed by him. On these matters, therefore, we prefer the evidence of Mr Lodge but that infers no lack of credibility on Mr Rodenhurst’s part nor indeed lack of reliability in his evidence intrinsically; he himself acknowledged that his evidence was subject to these qualifications.

[249] Staying with the matter of witnesses, it was an odd feature of this case that the “witnesses” on which the respondents seemed to rely most heavily were not, in fact, called to give evidence at all. Thus we heard nothing from Mr Upton in support of his letter about falconry and nothing from Drs Pannett, Brophy and Tipping in elaboration of their research. Were we to apply the rules of evidence strictly we would have no regard to productions 8, 18, 19 and 22 since they were not spoken to in evidence by their authors and there was no joint minute agreeing that they were what they bore to be. However, we have not taken such an approach. We have instead taken these documents at face value. There was, of course, evidence on falconry from Mr Wallace and evidence about archaeology from Dr Heald but the latter had to qualify his answers repeatedly by pointing out that his area of expertise was not that of Drs Pannett, Brophy and Tipping. His evidence was not, therefore, as valuable to the respondents as theirs would have been, although we very much doubt whether calling them would have produced a different result.

The merits of the respondents’ case

[250] In opposing this application and attempting to prove a substantial degree of hardship in terms of sec 13(2)(a) of the 1993 Act the respondents rely on two things; loss of the ability to promote archaeological research and loss of the right to pursue falconry over the croft.

[251] Both of these matters were, of course, explored in our 2006 decision, when we held that the defence of substantial hardship had not been made out. In the present case the respondents argue that on the archaeological front much has changed since then, with the significance of the work done by Drs Pannett, Brophy and Tipping now being more fully understood. As far as falconry is concerned they explain that its significance was not gone into fully last time because it had not been realised that falconry could not be covered by a sporting lease. Accordingly they have led more evidence on falconry this time round.

The archaeological interest

[252] Production 8 details the work done by Drs Pannett and Brophy, beginning in 2000. It refers to flint scatter discoveries made on land at Oliclett in 2001/2002. The authors say that it is likely that the scatter extends along the Swartigill Burn, which, in part, runs through Brickigoe. Their conclusion can be seen from the following passage:

“The land to the north of the loch [i.e. the Loch of Yarrows], around Raggra, Brickigoe, Oliclett and around the Swartigill Burn may not contain highly visible monuments, such as those around the loch, but excavations and fieldwalking have demonstrated that it does hold significant potential for yielding further evidence of early prehistoric occupation and important palaeoenvironmental information. …

The removal of land within the basin [i.e. the Yarrows Basin] from the estate threatens this work, and therefore the potential for us to learn more about how the people who built the striking monuments around the loch lived and exploited this landscape.

It is a rare thing to find a landowner, particularly an Estate, who is so supportive of archaeology and who is engaged in such an active way in promoting the sites on their land. It would be [a] huge loss to the future of archaeology in Caithness if this land were to be removed from the management of the Thrumster Estate.”

[253] Dr Tipping, in production 18, describes work done on the upper reaches of the Swartigill Burn in 2001-2003. He explains the significance of that locality, situated, as it is, at the boundary between the “peat-ridden” flow country to the west and the cultivable soils of the coastal plain. He explains the significance of the research in terms of understanding the “landscape context” of Mesolithic activity at Oliclett and at the head of the Swartigill Burn.

[254] The importance of this work and its potential to produce further significant discoveries is not, therefore, to be underestimated. However, the question for us is whether the sale of Brickigoe, so that it passes from their ownership, is going to cause the respondents substantial hardship in this regard. In answering that we have to apply the “before and after” test laid down in Fraser v MacKintosh. At the moment the respondents derive no benefit from archaeological tourism related to Brickigoe. Nobody goes there to see anything archaeological because there is nothing archaeological to be seen. The respondents would dispute the second part of that, pointing to the Wag of Swartigill and the possibility of flint discoveries along the Swartigill Burn. But there was no evidence that anyone other than the foresaid archaeologists have come to visit Brickigoe and the extent to which their researches covered the croft is unclear. No tourists come and, therefore, the number of tourists visiting the Yarrows Trail will not diminish because Brickigoe may no longer be available to them.

[255] But what about the “hope value” of further discoveries producing greater interest, and consequently greater demand for accommodation, in the future? There are two difficulties with that. Firstly, as we said on the last occasion, we cannot decide the case on the basis of speculation as to what may one day happen (SLC/156/05 at page 10; Geddes v Martin at page 111). Secondly, the kind of discovery that is anticipated (flint scatters) is not the kind of archaeology which attracts people in significant numbers. Accordingly what the respondents stand to lose is the prospect of income from housing academics if, due to difficulties with Mr Rodenhurst as owner, no research is done on Brickigoe. In that regard there is no evidence of any firm plan to carry out any investigations on the croft. The work to be done by the University of the Highlands and Islands in September of this year is on an Iron Age site outwith the croft. The loss of such an uncertain prospect cannot possibly be held to amount to a substantial degree of hardship. The respondents’ case as it relates to archaeology therefore fails.

[256] The foregoing position being as clear to us as it is, it has not been necessary for us to deal with Mr Inkster’s submission that a crofting landlord has no right to enter upon a croft for the purposes of archaeological research in any event.

Falconry

[257] What of falconry? More evidence was led on this subject on this occasion than last. What it comes to is that, although there are “hotspots” for grouse elsewhere on the estate, such as the Hill of Yarrows, the whole of the estate, or certainly of the Yarrows Basin, has to be available to facilitate the moving around of falconers so that the same areas are not being disturbed too frequently. Brickigoe is at the very centre of this area and its merits, in terms of being relatively open and flat, were spoken to by Mr Wallace and are described by Mr Upton in his letter.

[258] The sporting rights on Thrumster are leased to Mrs MacLeod, trading under her business name Thrumster Estate Fieldsports. Mrs MacLeod pays a rent of £12,500 per annum to the Estate; production 15. She gave evidence, extrapolated from the bookings sheets which are production 23, that hawking had produced an income for her of just over £7,160 in 2014. That was from eight parties of hawkers. Bookings to date for this year amount to £9,360 in value. Production 15B is Thrumster Estate Fieldsports’ Profit and Loss Account for the year to 5 April 2013. Gross income was £54,469. It is not broken down as to source but, if we assume income from hawking in the region of £7,000-£8,000, it amounts to about 13-15% of the total. The business made a loss of £1,414 for the year. So it is easy to accept Mrs MacLeod’s evidence that were the income from hawking to dry up she would not be able to go on paying an annual rent of £12,500 to the Thrumster Estate Ltd. Production 15A is Thrumster Estate Ltd’s Profit and Loss Account for the year to 31 December 2013. It shows a profit of £12,895. Loss of the Thrumster Fieldsports rent would virtually wipe out that profit, unless it was replaced from another source.

[259] The first factual matter to be resolved is whether, if we grant this order and Mr Rodenhurst buys the croft, hawking will be prohibited over Brickigoe. Mr Rodenhurst gave an assurance that it would not. Mrs MacLeod, Mr Lodge and Mr Wallace had no faith in such an assurance and expect only lack of co-operation. There is clearly a history of bad blood and it is difficult to believe that the present state of things will suddenly be replaced by a relationship harmonious enough to allow continued and undisturbed falconry over Brickigoe. Whilst we are not in a position to make a finding-in-fact that hawking will be prohibited or made impossible at Brickigoe with Mr Rodenhurst as owner-occupier, we have decided to test the respondents’ position on the basis that it would.

[260] So the next factual question is what the effect on falconry at Thrumster would be if birds could no longer be flown over Brickigoe. That it would be more difficult is not in doubt. Mr Lodge and Mr Wallace both spoke to that and Mr Upton says it would make it “almost impossible to fly over any of the rest of the estate”. Since Mr Lodge and Mr Wallace gave evidence whilst Mr Upton did not, we attach more weight to their evidence than to his letter. They seemed less pessimistic.

[261] The value of Brickigoe for hawking is not as a “hotspot” – which it is not – but simply as an expanse of land over which hawking parties can be moved in order to vary hunting locations and which is very good from the point of dog-running and visibility. We do not underestimate that value but the strong impression we got from the evidence of Mrs MacLeod, Mr Lodge and Mr Wallace was that every effort would be made to keep hawking going even without Brickigoe. Accordingly our finding-in-fact on this matter is that hawking will continue on Thrumster even if Brickigoe is not available although it will be more difficult to manage and may, consequently, become less attractive to falconers.

[262] The extent of any added difficulty will depend on Mr Rodenhurst and his successors but, in one sense at least, the respondents are already at his mercy. That has to do with fencing. The respondents fear that if he is allowed to buy the croft Mr Rodenhurst will erect boundary fences around Brickigoe or, at any rate, fence off sections of it, beyond what is presently fenced. The point that has to be made about that is that (assuming the consent of SNH where that is required) he is already entitled to do that as tenant. So in that regard the respondents will be no worse off with Mr Rodenhurst as owner-occupier than they are now.

[263] Notwithstanding the qualified nature of our finding-in-fact at para [261] we have considered the worst case scenario; that, having become less attractive to falconers hawking at Thrumster is no longer commercially viable.

[264] The first thing to be said about that is that if hawking is no longer taking place that will, presumably, free up more days for shooting. Shooting parties will then have the whole of the estate to themselves. We appreciate that shooting is less lucrative but loss from the cessation of hawking should be off-set, to some extent, by increased income from shooting. We are conscious that this was not explored in evidence but it does seem a legitimate conclusion from the evidence, albeit we are not in a position to quantify the extent of offset.

[265] More generally, whilst the evidence was that no single income stream is sufficient to keep the Estate in profit – and therefore all current streams are necessary – no one suggested that the end of hawking would also be the end of Thrumster Estate as a viable commercial entity. It would look to other ways of earning income. Tourism is obviously the most promising and there is a strategy in place to stimulate and exploit the interest of visitors to Orkney as they pass through Caithness. Catherine MacLeod, who manages self-catering units on the estate and represents the next generation of the family, gave evidence that she would certainly try to keep her business going without Brickigoe. Accordingly the end of hawking is not likely to mean the end of Thrumster Estate.

[266] On that analysis of the evidence, have the respondents proved that, paraphrasing the wording of section 13(2)(a), in all the circumstances pertaining to them and having regard to the extent of land owned by them to which the 1993 Act applies, the making of the order sought would cause them a substantial degree of hardship?

[267] Firstly we would note that no separate point was made by Mrs MacLeod about the extent of the land to be lost, separate that is from its archaeological and falconry value. Thus no point about loss of capital value was made.

[268] Mrs MacLeod certainly emphasised that the land to be lost comprised 36% of the croft land on the estate and 10% of its whole extent. That means that a very significant area of the estate may be lost to its archaeological strategy but we have concluded (a) that, for aught yet seen, the loss of Brickigoe will make no practical difference from that point of view and (b) that whatever of an archaeological nature may happen in the future is too speculative to be taken into account.

[269] Brickigoe forms a smaller proportion of the land over which the respondents (and Mrs MacLeod as their sporting tenant) have sporting rights but it is a significant proportion nevertheless and it is only this aspect which comes anywhere near the threshold of substantial hardship. We consider that there is a risk that the loss of Brickigoe will cause the respondents financial loss due to the Estate becoming less attractive to falconers. Last time round we drew a distinction between loss and hardship (at page 9):

“Hardship is, in our view, more than loss, even substantial loss, and ‘a substantial degree of hardship’ is a high test. It was met in relation to South Yarrows. We are not satisfied that it has been met in relation to Brickigoe.”

[270] Although we have heard more evidence on falconry this time round we have heard nothing which causes us to change our view. Accordingly the defence of substantial hardship has not been made out.

[271] At para [4] above we said that there were elements of a sec 13(2)(b) – substantial detriment to the interests of sound management of the landlords’ estate – in the evidence we heard. That too involves a high test and we should record, for completeness, that the evidence we heard would not have satisfied it, were we dealing with the case on that basis, as opposed to the defence being confined to sec 13(2)(a).

[272] The result of that is that we intend to grant the order sought. However, it would not be appropriate to grant it before determining the other terms and conditions on which it should be granted. In our order of 2 March 2015 we reserved consideration of various matters of that sort. These now fall to be decided and we have allowed parties 28 days within which to make written submissions on these matters and on further procedure.

Although we have repelled the defence we are very sympathetic to doing what we can to secure the future of hawking at Brickigoe. Last time round we heard no argument on whether it could be secured by way of terms and conditions which the court could impose in terms of sec 13(1). This time it would be helpful to have full legal submissions. Mr Murchison has acted for the respondents in this matter up to the point of the proof and it was he who asked us to reserve the position on the various matters referred to in our order of 2 March. It would be helpful to the court to have submissions from him on this point as well as on the others but whether he is instructed is, of course, a matter for the respondents.