Decision of the Scottish Land Court

Glen Spean Estate (Applicant) v MacLachlan (Respondent)

Case reference SLC 28/14
before
Iain F Maclean, Deputy Chairman, and Tom Campbell
11 August 2016

Background

[1] This an application by the Landlords, identified in the instance as Glen Spean Estate, for consent to resume an area of ground extending to 1.94 hectares or thereby, sometimes known as the Gorge Park, formerly part of the Achluachrach, Bohenie and Murlaggan (otherwise Galmore) Common Grazings. The status of the Gorge Park, as we shall, for convenience, refer to it in this Note, as part of the Galmore Common Grazings was established in earlier proceedings at the instance of Mrs Jennifer Cecilia MacLachlan, the present respondent, against the Landlords before a Divisional Court (David J. Houston) for declarator to that effect: MacLachlan v Bruce & Others 2014 SLCR 133. Glen Spean Estate, as we understand the position, is partnership property, with title thereto held in the joint names of Stephen Ashley Smith and Alistair Bruce as trustees for the firm in which they are the two partners. In Glen Spean Estate v MacLachlan & Others 2012 SLCR 76, the Landlords succeeded in persuading the Court to authorise resumption of 1.28 hectares of land elsewhere on the Galmore Common Grazings for the purpose of erecting new facilities incorporating a deer larder, vehicle storage, stabling for estate ponies, with associated access and hard standing, and holding and break-out areas for the ponies, the only maintained opposition thereto coming from Mrs MacLachlan, the tenant of the croft known as 5 Achluachrach, representing both herself and her elderly aunt, in their capacities as shareholders in the Galmore Common Grazings. In those proceedings, Mrs MacLachlan argued that the land which the Landlords were seeking to resume had a market value of £390,000, but the Court ultimately found the market value thereof to be the considerably lesser sum of £20,000, of which the crofters sharing in the common grazing were entitled, under the crofting legislation, to receive one half, apportioned among them, upon surrender of the subjects.

[2] When the current application to resume was first made, the shareholders in the Galmore Common Grazings, of whom Mrs MacLachlan remained one, to the extent of one half share, were called as respondents. Answers were lodged by Mrs MacLachlan as well as by the local Grazings Clerk in a representative capacity. After sundry procedure, including the lodging of replies by the Landlords dated 8 August 2014 and of a further response from Mrs MacLachlan, the Court by letter dated 14 October 2014 intimated to parties that it was minded, if parties agreed, to make a determination as to whether the Landlords had satisfied the “reasonable purpose” test in section 20 (1) of the Crofters (Scotland) Act 1993 (“the 1993 Act”) on the basis of written submissions without a hearing, for which possibility provision is made in Rule 47 of the Rules of the Scottish Land Court 2014 (“the 2014 Rules”). The Court knew that Mrs MacLachlan by this time had an application pending before the Crofting Commission (“the Commission”) for an apportionment of part of the Gorge Park extending to 1.317 hectares for her own exclusive use. The parties having agreed to this course of action, the determination was delegated to a Divisional Court (John Smith), which, having considered the parties’ written submissions and productions, on 27 March 2015 issued an Order finding that the purpose for which resumption was required by the Landlords (being to sell the area of ground to a Mr & Mrs Dignan as the site of a dwelling-house and for forestry planting and woodland management) was a reasonable one within the meaning of section 20 of the 1993 Act, and that it would be reasonable to authorise resumption subject to certain specified conditions.

[3] Mrs MacLachlan both appealed that decision under Rule 64 of the 2014 Rules and applied for a re-hearing in terms of Rule 74 (3)(c) of the 2014 Rules. Rule 74 (3)(c) is the ground for re-hearing that “relevant and material evidence is available … being evidence which at the time the order was made was unknown to the party moving for re-hearing and could not have been discovered before that time by that party by exercise of due diligence”, and the evidence upon which Mrs MacLachlan proposed to rely in this context was that by letter dated 19 March 2015, issued whilst the Divisional Court was at avizandum, the Commission had informed her that they had “decided to propose to apportion” the same area to her, in the face of objections made to the Commission by the Landlords. The Commission subsequently informed the Landlords, and the Court, in letters dated 16 June 2015, that they would be holding the apportionment application “in abeyance until such time as the SLC has issued their final determination on the resumption of the area of the common grazings …”

[4] The Landlords lodged written answers to Mrs MacLachlan’s appeal and application for a re-hearing and a hearing thereon took place on 10 August 2015 before the Court, which on that occasion was made up of Lord McGhie (sitting as Deputy Chairman), Mr David J Houston and Mr Angus Macdonald. The Court issued an Order dated 21 August 2015 in which it recalled the decision of the Divisional Court dated 27 March 2015 and ordered the application to be heard of new on a date to be fixed. The Court’s accompanying Note to the Order dated 21 August 2015 explained that it considered that the issue of reasonable purpose was not one that could be determined as a paper exercise, because the parties’ written submissions disclosed that they were in dispute as to some at least potentially relevant issues of fact, including the availability of other sites for Mrs MacLachlan and the efforts she had made to acquire another site. The Court noted that the Divisional Court had:

“recognised that there was a dispute about the potential of the site for use by Mrs MacLachlan and that that involved the question of whether she would get the apportionment she had requested. But the court decided that this was an issue ‘extraneous to the application.’ In other words it considered that it did not matter how the disputed material was resolved because it considered such material irrelevant to the issues it had to determine [at paragraph [13]].”

[5] That being the case, the critical question for the Court was one of relevance, and that led it to embark on a discussion of the Divisional Court’s approach to the interpretation of section 20 of the 1993 Act, upon the basis of which it formed the view that the amending provisions of section 42 of the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”), with their reference in section 20 (1AC) of the 1993 Act to the sustainability of crofting, required the Court “to look to the future”, and that the assessment of reasonableness inevitably “requires consideration of the probable impact of the resumption compared with what would have been the probable state of things if it was not allowed.” It acknowledged however that it would be inappropriate for it to attempt a full analysis of the implications of these amendments in the absence of full submissions on the point. The Court concluded that, in the context of the specific conflicting proposals for the area of ground in dispute, the Divisional Court had failed to apply a proper test of reasonableness, which would have entailed it making findings on the balance of probability as to the competing future outcomes posited by the parties based on the evidence, and that the decision of 27 March 2015 must be set aside and the matter heard afresh. On that basis it was considered unnecessary for the Court to give separate consideration to the motion for re-hearing.

[6] In the intervening period since the Divisional Court invited the parties’ written submissions on the issue of reasonable purpose, there had been two significant factual developments. As previously has been noted, the Commission had advised Mrs MacLachlan that they had “decided to propose to apportion” part of the Gorge Park to her. The Landlords, in turn, had concluded missives with Mr & Mrs Dignan for the sale of the Gorge Park to them, subject to condition that one month prior to the date of entry, the subjects would no longer be affected by crofting tenure and the relevant decrofting direction or Land Court resumption order would be exhibited and delivered at or prior to settlement in terms acceptable to the purchasers. There had also been a potential procedural development, in that the Commission, by email to the Principal Clerk dated 2 September 2015, had advised the Court that it was likely that they would wish to exercise their right under section 20 (1A) of the 1993 Act to oppose or support the application when it was heard of new.

The Commission’s proposed intervention

[7] Section 20 (1A) of the 1993 Act provides that a landlord making an application for authority to resume under section 20 (1) of the 1993 Act must give notice of it to the Commission; and the Commission may, if they think fit, oppose or support the application. It seems to contemplate that the Commission, in such circumstances, will enter the Court process, but the legislation does not prescribe either when such intervention may occur or what form it is to take. When they lodged their application with the Court on 1 April 2014, the Landlords had given notice of it to the Commission, but the Commission did not intervene at that stage. The Commission, in their email dated 2 September 2015, gave us no indication as to which position they were minded to take in relation to the application, or their grounds therefor, and so we, in our Order dated 2 November 2015, ordained the Commission to lodge with the Court a minute stating whether they opposed or supported the application and setting out in full the grounds upon which they did so and confirming the extent to which they proposed to participate in any hearing which might be fixed to follow thereon.

[8] The Commission, having first sought and obtained an extension to allow them more time fully to consider their position in response to our Order dated 2 November 2015, then moved that the application be sisted for a period of two calendar months “in order that the [Commission] will make a final decision on the apportionment application lodged by Mrs … MacLachlan”. It was explained to us that both the Landlords and Mrs MacLachlan had made representations to the Commission in response to the Commission’s letter dated 19 March 2015 and the Landlords had requested a hearing thereon, and it was because those representations had yet to be considered by the Commission, and to accommodate the possibility of a hearing in the apportionment application, which would require the attendance of three Commissioners and to be the subject of prior advertisement, that a sist of such duration was sought. It appeared that the Commission were no longer inclined to “hold the apportionment application in abeyance”, but were intent instead on resuming consideration of it “with a view to issuing a final decision.”

[9] The thinking behind this change of position was explained to us upon the basis that the Commission considered themselves constrained in providing the Court with a full minute of opposition to or of support for the resumption application as matters stood because they had “not yet issued a final determination” of Mrs MacLachlan’s apportionment application. Their concern was that any expression by them of opposition to or support for the resumption application in such circumstances could “be seen to prejudice the outcome of the apportionment application due to the similarity of the issues concerning the apportionment application and the resumption application”, potentially exposing the Commission to a statutory appeal under section 52A (3) of the 1993 Act. Thus, they perceived that the making by them of a “final decision” on the apportionment application was an essential preliminary to them exercising their right under section 20 (1A) of the 1993 Act to oppose or support the resumption application when it was heard of new.

[10] The Commission went on to explain that should they make “a final decision” on the apportionment application, they would then be able to lodge with the Court a full minute of either support for or opposition to the resumption application, with a supporting statement of facts and inventory of productions. They envisaged that the grounds in any such minute would include submissions on subsections (1) and (1AC) of section 20 of the 1993 Act, but that beyond such a minute, they would not intend to participate further in any hearing. The motion by the Commission to sist was opposed by the Landlords, and we refused it, our reasons for doing so being set out in the Note which accompanied our Order dated 16 February 2016.

[11] Our own initial conceptual difficulty with the justification put forward by the Commission for a sist was that it rested on the proposition that they had not yet made a decision on Mrs MacLachlan’s apportionment application. That position did not seem to us to sit entirely comfortably with the contents of the Commission’s letter to her dated 19 March 2015, which had narrated that “After full consideration the Commission have decided to propose to apportion 1.317 hectares as shown on the enclosed plan” and which was accompanied by a “Note of Decision, explaining the Commission’s procedures when considering applications of this type and the grounds for the Commission’s decision”, that had as its stated object to explain “how our decision was reached.”

[12] We were further puzzled by the contents of the letter dated 19 March 2015 to the extent that they advised its recipients that “You can appeal against this decision by making written representations to the Commission and/or requesting a Hearing”, in the absence of which “this proposed decision will stand.” We were told that the practice of the Commission in apportionment applications was to issue a “proposed decision” to an applicant with an opportunity for interested parties to make written representations to the Commission and/or request a hearing thereon, but we questioned whether it was either apt or appropriate to refer to such a practice as an “appeal”. We pointed out that to do so invited confusion with the section 52A (1)(b) appeal to the Court against any decision of the Commission on an application made to them under the 1993 Act. Whilst emphasising that the internal procedures of the Commission for handling apportionment applications were, of course, a matter entirely for them, we observed that it was not clear to us why the Commission, having considered an apportionment application and any responses thereto received by them following advertisement, should consider it necessary to issue their “proposed decision” effectively in draft and to afford the persons interested in that apportionment application a further opportunity to make representations thereon. If the Commission had considered, having received representations thereon in response to the initial advertisement, that a public hearing on the apportionment application was necessary, it was not obvious to us why they could not have proceeded to arrange such a hearing at that stage, before proceeding to make what would be a “final”, rather than merely a “proposed”, decision, upon the basis of which a formal apportionment order could be issued.

The apportionment order

[13] On 24 March 2016 the Commission issued a formal order granting Mrs MacLachlan an apportionment and forwarded a copy thereof to the Court. It is not clear to us whether any further procedure took place before the Commission in advance of the issue of the apportionment order. The apportionment order narrates that:

“… CONSIDERING that after consultation with the landlord and the Grazings Committee for the said common grazings we decided to apportion to the applicant the area of ground aftermentioned on certain conditions including inter alia the condition that she should enclose the said area so far as not already enclosed with a stockproof fence to the Commission’s satisfaction and that we are now satisfied that the Applicant has fulfilled the said condition NOW THEREFORE WE DO HEREBY APPORTION to the applicant, the said Mrs Jennifer Cecilia MacLachlan for her own exclusive use in respect of the share in the said common grazings pertaining to the said croft an area of ground which formed part of the said common grazings and which area extends to one hectare and three hundred and twenty-three decimal or one thousandth parts of a hectare or thereby as the said area is shown outlined in black and coloured pink on the Plan annexed and signed as relative hereto.”

The Plan annexed and signed as relative to the apportionment order purports to show, with measurements to one decimal place, the boundaries of the area of ground so enclosed and apportioned. The reference in the apportionment order to the Commission being satisfied that Mrs MacLachlan has fulfilled the condition that she should enclose the said area so far as not already enclosed with a stockproof fence is somewhat odd, given that when we inspected the site nearly two months later, after the conclusion of evidence in the hearing of the Landlords’ application to resume, which took place in Spean Bridge Community Hall on 19 and 20 May 2016, the subjects of the apportionment order, being “the said area” referred to therein, were not fenced. The procedure in Mrs MacLachlan’s apportionment application thus would appear to have deviated significantly from the norm, the usual practice of the Commission, as we understand it, being to require the subjects being apportioned to be enclosed before they are surveyed and a plan thereof drawn up for inclusion in the actual apportionment order. No explanation was provided to us of the discrepancy between the apportionment of 1.317 hectares applied for by Mrs MacLachlan and the area of 1.323 hectares ultimately include in the apportionment order.

The Landlords’ appeal against the apportionment order

[14] In the interests of completeness, we should record that on the 42nd day after the Commission’s decision to grant Mrs MacLachlan her apportionment, the Landlords appealed to the Land Court under section 52A (1) of the 1993 Act against that decision. By section 52A (2)(b) of the 1993 Act, an appeal against a decision of the Commission on an application made to them under the 1993 Act must be brought within 42 days after the Commission dispose of the application. The grounds of appeal, as set out in section 52A (3) of the 1993 Act, are that the Commission, in reaching their decision or as the case may be in determining as they did, in making their direction or in imposing the condition in question–

(a) erred on a point of law,

(b) made a finding as to a fact material to the decision, determination, direction or imposition but did not have sufficient evidence on which to base that finding;

(c) acted contrary to natural justice;

(d) took into account certain irrelevant or immaterial considerations;

(e) failed to take into account certain relevant or material considerations;

(f) exercised their discretion in an unreasonable manner.

The Landlords’ grounds of appeal merely re-stated, word for word, in the form of a list (a. – f.), the grounds mentioned in section 52A (3) of the 1993 Act. They did not specify the point of law on which the Commission erred, or identify the finding as to a fact material to the decision for which the Commission did not have sufficient evidence. They did not indicate in what way the Commission acted contrary to natural justice, and they provided no specification of either the irrelevant or immaterial considerations they wished to argue the Commission took into account, or the relevant or material considerations the Commission failed to take into account. There was nothing to explain in what respect the Commission were supposed to have exercised their discretion in an unreasonable manner. There followed a list of some 20 “documents to be referred to in support of the grounds of Appeal” but there was nothing in the list to inform the Court as to the relevance of the contents of any of these documents to their appeal.

[15] Rule 58 (1) of the 2014 Rules provides that subject to the provisions of any enactment allowing appeals to the Scottish Land Court, Rules 58-63 shall apply to such appeals. By Rule 58 (3), intimation of the appeal must contain a clear statement of the grounds of appeal. Rule 59 (1) (Consideration of basis for proceeding with appeal etc.) requires the Chairman to consider whether the grounds set out in the statement submitted in terms of Rule 58 demonstrate a basis upon which the order or determination in question might realistically be expected to be changed or set aside; and for the purposes of such consideration the Court may -

(a) allow the appellant to lodge written submissions in support of all or any of those grounds;

(b) allow the appellant to be heard in support of all or any of those grounds; or

(c) allow the appellant to amend or add to those grounds.

If, after due consideration, the Chairman is not satisfied of the sufficiency of the grounds set out in the statement of grounds of appeal, by Rule 60 the appeal is to be refused. In terms of Rule 2 (Interpretation) of the 2014 Rules, “Chairman” means the Chairman of the Scottish Land Court, and in relation to judicial functions, includes any Deputy Chairman.

[16] In the view of the Court, the grounds of appeal submitted were not grounds of appeal in accordance with Rule 58 (3) of the 2014 Rules, because they did not contain a clear statement of the grounds of appeal against the decision of the Commission which the Landlords sought to maintain. The mere repetition of the grounds of appeal mentioned in section 52A (3) of the 1993 Act, such as that the Commission “erred on a point of law”, without any explication of the nature of the error which they contend the Commission made in granting Mrs MacLachlan her apportionment, did not afford proper notice of the arguments which the Landlords intended to advance in support of their appeal. The Landlords’ grounds of appeal demonstrated no basis upon which the Commission’s decision on Mrs MacLachlan’s apportionment application might realistically be expected to be changed or set aside, because in effect, they provided the Chairman with nothing to consider: cf. Ferguson v Whitbread & Co. 1996 SLT (Note) 659. It being impossible to discern from the contents thereof whether the Landlords had any proper basis to challenge the decision of the Commission on Mrs MacLachlan’s apportionment application, the Court declined to exercise any of the powers conferred on it by paragraphs (a)-(c) of Rule 59 (1) in the Landlords’ favour in this situation, because to do so would effectively be to subvert the statutory time limit for the bringing of an appeal against a decision of the Commission provided for in section 52A (2)(b) of the 1993 Act.

The operation of section 20 (1A) of the 1993 Act

[17] The Commission, having previously intimated that they might be minded to intervene to oppose or support the application in terms of section 20 (1A) of the 1993 Act, ultimately opted not to do so. Mr Smith, at the hearing, argued that the implication of the Commission’s non-intervention was that its position on the proposed resumption must therefore be taken to be one of neutrality.

[18] As we observed in paragraph 7 above, in providing that the Commission, having received notice of a resumption application, may “oppose or support the application”, section 20 (1A) of the 1993 Act clearly envisages that the Commission will participate in some way or other in the Court process, but without prescribing what form that intervention is to take. Nor does section 20 (1A) of the 1993 Act provide any indication as to what weight we as a Court are to give to the fact of their opposition or support. On a practical level, it seemed, and seems, to us that should the Commission seek to make submissions as to the effect the reasonable purpose relied upon by a landlord would have on any of the matters mentioned in sections 20 (1) and 20 (1AC) of the 1993 Act, but elect not to call witnesses, whose evidence could be tested by way of cross-examination by the parties, to speak to the contents of their supporting statement of facts and productions, the inability of the parties to challenge the factual basis of the Commission’s submissions is something we would not only be entitled, but bound, to take into account in deciding how much weight to attach to the Commission’s opposition or support. In light of the decision of the Commission not to either oppose or support the Landlords’ resumption application, we are spared the necessity of reaching and expressing a concluded view upon these matters in this process, but we take this opportunity to flag up for the future the issue of how section 20 (1A) of the 1993 Act is supposed to operate in practice, because we will require to be addressed upon it by the Commission and the parties in any future application to resume in which the Commission opt to intervene. In the meantime, we shall proceed upon the basis that, as Mr Smith submitted on behalf of the Landlords, the Commission must be taken to have adopted a position of neutrality in relation to their resumption application.

The Galmore Grazings Committee

[19] When the application was first lodged, Mrs Christine MacDonald on 20 April 2015 wrote to the Land Court in her capacity as Clerk to the Galmore Common Grazings and on behalf of the shareholders in the Galmore Common Grazings to express the views of the shareholders upon the Application. In our Order dated 18 March 2016, we directed her to inform us in writing whether she intended to appear at the proof as a party, by which we meant, as we explained in our accompanying Note, take part in the hearing by cross-examining the witnesses for the other parties, calling her own witnesses and making oral submissions. As at that date, of course, Mrs MacLachlan had not yet obtained her apportionment order, and the whole of the Gorge Park remained part of Galmore Common Grazings. Mrs MacDonald contacted the Court before the hearing to confirm that she would not be participating as a party at the hearing, and neither party called her as a witness.

The legislation prior to the 2007 and 2010 amendments

[20] Prior to its amendment, section 20(1) of the 1993 Act empowered the Land Court to authorise resumption on being satisfied that the landlord desired to resume the croft, or part thereof, for some reasonable purpose having relation to the good of the croft or of the estate or to the public interest, upon such terms and conditions as it might think fit, and to require the crofter to surrender his croft, in whole or in part, to the landlord accordingly, upon the landlord making adequate compensation to the crofter either by letting to him other land of equivalent value in the neighbourhood or by compensation in money or by way of an adjustment of rent or in such other manner as the Land Court might determine. Section 20(3) of the 1993 Act provided, and provides, a non-exclusive list of examples of what “reasonable purpose” shall include for the purposes of section 20(1), being:

“(a) the using, letting or disposing of the land proposed to be resumed for—

(i) the building of dwellings;

(ii) small allotments;

(iii) harbours, piers, boat shelters or other like buildings;

(iv) churches or other places of religious worship;

(v) schools;

(vi) halls or community centres;

(vii) planting;

(viii) roads practicable for vehicular traffic from the croft or township to the public road or to the seashore;

(viiia) the generation of energy; or

(ix) any other purpose likely to provide employment for crofters and others in the locality;

(b) the protection of an ancient monument or other object of historical or archaeological interest from injury or destruction.”

[21] Section 21 (1) of the 1993 Act conferred, and confers, upon the crofter, where the Land Court authorises resumption under section 20 of the 1993 Act, a right, in addition to any compensation payable to him under section 20, to a share in the value of the land so resumed, the amount thereof, stated broadly, being one half of the difference between the market value of the land on the date on which resumption was authorised and the crofting value thereof. The core of what was to become section 20 of the 1993 Act can be traced all the way back to section 2 of the Crofters Holdings (Scotland) Act 1886 (“the 1886 Act”), which provided that:

“Notwithstanding the provisions contained in the preceding section, the Crofters Commission may, on the application of the landlord, and upon being satisfied that he desires to resume the holding or part thereof, for some reasonable purpose, having relation to the good of the holding or of the estate, including the using, letting, or feuing the land proposed to be resumed, for the building of dwellings, or for small allotments for fishermen, or for harbours, piers, boat shelters, or other buildings connected with the fishing industry, or for churches or other places of religious worship, or for schools, or for planting, or for roads practicable for carriages from the croft or crofts to the high road or the sea shore, authorise the resumption thereof by the landlord upon such terms and conditions as the Crofters Commission shall think fit, and may require the crofter to surrender his holding, in whole or in such part, to the landlord, upon the landlord making adequate compensation to the crofter, either by letting to him other land of equivalent value in the neighbourhood, or by reduction of rent, or by compensation in money, or otherwise as the Crofters Commission shall determine.”

The case law on resumption

[22] Case law over the decades has resulted in an accretion of judicial dicta around the concept of “reasonable purpose” and how it falls to be applied. Most significantly, it has been held in a long succession of cases that it is not sufficient for a landlord merely to state as a purpose for resumption one of the examples of “reasonable purpose” specified in what is now section 20 (3) of the 1993 Act: see, e.g., Beardsall v Bell 1975 SLT (Land Ct) 2. The fact that the purpose for which resumption is sought was one of those specified in the corresponding provisions to section 20 (3) of the 1993 Act in the earlier legislation did not mean that the application must automatically be granted (Walker v MacEwan 1946 SLCR 14); a landlord still had to prove that his purpose was reasonable having relation to at least one of the three grounds (i.e. the good of the croft or of the estate or of the public interest) in all the circumstances of the case: South Uist Estates Limited v Macdonald 1983 SLCR 86. According to the Divisional Court in Lord Brocket’s Trustees v Hodgson 1961 SLCR 25, “The onus of so doing clearly rests on the applicants”. In Grimersta Estate Ltd. v MacLeod 1972 SLCR (App) 128, the Full Court emphasised that:

“The Act does not provide that the resumption sought is unqualifiedly for ‘the good of the croft or of the estate’ or involving directly ‘the public interest’ but expresses the basis for decision in a less categorical form, namely, is the purpose of the resumption sought reasonable ‘having relation to’ the good of the croft or of the estate or to the public interest. The phrase ‘having relation to’ is extensive, not restrictive …”

In Portman Trustees v Macrae 1971 SLT (Land Ct) 6 the Full Court observed that:

“The crofter has, of course, the long established security of tenure in the croft and it is for the landlords to satisfy the court in the light of the whole circumstances that present resumption of part of the croft is warranted …

To authorise resumption for a general purpose [of feuing for houses] without a specific project for evaluation by the court as to the good of the estate or the public interest would seem virtually to deprive crofting tenure of its basic security [at page 11]”.

In Dunbeath Estate Ltd. v Gunn 1988 SLCR 52, the Divisional Court, at page 58, opined that:

“Even if the landlord is successful in proving that resumption is for a reasonable purpose on all three counts, the Court still requires to be satisfied that the whole circumstances of the particular area in question justify granting authority to resume”.

[23] The practice of the Land Court in modern times has been that even where satisfied that the resumption would be for some reasonable purpose having relation to the good of the estate or to the public interest, it may still refuse to authorise resumption where such considerations are perceived to be outweighed or overridden by the adverse effects of resumption on the croft: e.g. Fountain International Ltd v MacDonald 1992 SLCR 84. That approach is summed up neatly by Donald J. MacCuish and Derek Flyn in their work on Crofting Law (1990) when they observe at paragraph 10.04 that:

“The Land Court may authorise resumption for some reasonable purpose which has to be approved by them as having relation:

(a) to the good of the croft;

(b) to the good of the estate or

(c) to the public interest.

It is sufficient if the landlord establishes reasonable cause on the basis of any one of these propositions. However it is the duty of the Court to consider the facts in each case and to balance all three interests."

In conformity with that “balancing of interests” approach, it has been stated that “where in resumption Applications such as this a Respondent as in the present case, states an ex facie reasonable objection to the resumption in his pleadings the Applicant must be prepared to lead evidence to meet such an objection”: Secretary of State for Air v Macdonald 1962 SLCR App 90 at page 91.

[24] The approach adumbrated in the forgoing paragraphs, it must be acknowledged, at first sight is not readily reconcilable with a dictum of Lord Salvesen in Whyte v Stewart 1914 SC 675 (sub nom Stewart v Whyte (1914) 2 SLCR 101), a special case from the Land Court to the Second Division of the Inner House of the Court of Session, in which the issues were whether it was within the powers of the Land Court, in authorising resumption by the landlord of a statutory small holding, to postpone the date of resumption and surrender for a two year period and make resumption conditional upon payment of compensation being made by the landlord prior to the tenant’s surrender of possession. The Second Division answered both of those questions in the negative. The chief controversy in the case turned on the meaning and effect of section 32 (15) of the Small Landholders (Scotland) Act 1911 (“the 1911 Act”), which provided, in relation to the rights of statutory small tenants, that:

“without prejudice to any agreement between the parties, the Land Court may, on the application of the landlord, and upon being satisfied that he desires to resume the holding or part thereof for building, planting, feuing, or some other reasonable purpose having relation to the good of the holding or the estate (including any purpose specified in sec. 19 of this Act), authorise the resumption thereof by the landlord, subject to the payment of the like compensation to the tenant in respect of improvements on or in connection with the land resumed, to which a tenant would be entitled under the Agricultural Holdings (Scotland) Act, 1908, on the determination of his tenancy …”

Section 19 of the 1911 Act provided that:

“Without prejudice to the generality of the power to authorise resumption by the landlord for some reasonable purpose having relation to the good of the holding or of the estate, conferred by sec. 2 of the Act of 1886, the feuing of land, or the occupation by a landlord for the purpose of personally residing thereon of a holding, being his only landed estate, or the protection of an ancient monument or other object of historical or archaeological interest from destruction or injury, shall respectively be deemed a reasonable purpose as aforesaid.”

The stated purpose for resumption in the instant case was to enable the landlord to reside thereon, it being his only landed estate, and the Second Division was clear that the Land Court having been satisfied that the landlord desired to resume for that reasonable purpose, it had a duty to authorise resumption “at the earliest date possible”, the words of the statute excluding “any discretionary power to refuse or postpone the right to resume”: Lord Dundas (with whom the Lord Justice Clerk (MacDonald) concurred) at page 682. The words “subject to the payment of” in section 32 (15) imported only a right of the tenant to receive compensation upon the footing and in the mode prescribed, and afforded no warrant for making actual payment of the assessed amount a condition precedent to the tenant’s surrender of the holding.

[25] For present purposes, the potential significance of this case arises principally out of a passage in the Opinion of Lord Salvesen at page 684 - 685 in which His Lordship dealt with a submission that the language of section 32 (15) of the 1911 Act, taken along with the addition, imported by the clause in brackets, from the explanatory section 19 of the 1911 Act:

“was permissive, and that it is in the discretion of the Land Court, although satisfied that the landlord desires to resume his holding for one of the purposes specified, to grant or refuse his application. I cannot think that this is in accordance with the sound construction of this statute. It is, no doubt, for the Land Court to find the facts; but, as soon as they are satisfied on the facts that the landlord desires to resume the holding for a reasonable purpose, it is their duty to give effect to the intention of the Legislature and to grant an order authorising the landlord to resume. In the case in question what he had to satisfy them of was his present desire and intention to resume and cultivate. It is that intention which is to be given effect to. If the Land Court has power to postpone the resumption for a period of two years, equally must they have power to postpone it for any longer period, or to refuse it altogether. To give an applicant, who desires to resume at Whitsunday 1913, the right to resume two years later, when the whole circumstances may have changed and he may be unable to enter upon personal occupation of the holding, is to stultify the whole proceedings. I hold that subsection 15 imposes a duty upon the Land Court of authorising resumption in favour of the landlord as soon as reasonably practicable, after they are satisfied of the facts which the landlord must establish as a condition precedent to his application being granted. To hold otherwise would be to make the Land Court absolute masters of the situation, and enable them to give effect, or not, to the plain intendment of the statute as they thought fit. There are many decisions to the effect that language which is in form permissive must nevertheless in certain cases be construed as imperative in effect.”

[26] Whyte v Stewart was followed by the Full Court in Lewis & Harris Welfare & Development Co. Ltd. v Macdonald & Others (Lower Bayble Landholders) 1921 SLCR App 96, in which the owners had applied to the Court for authority to resume 131.4 acres of the Lower Bayble Common Pasture for the purpose of feuing it to the Board of Agriculture for Scotland, which, in conjunction with the local authority, proposed to use the land resumed for building sites and allotments. In the Note which accompanied its order authorising resumption, the Court explained (at page 97) that:

“The Application is made primarily for the benefit of the population, which in this district, is very much congested, the evils of squatting being particularly marked in the neighbourhood, but also incidentally for the benefit of the members of the township themselves. The scheme is designed to relieve the latter of surplus population which overcrowds their land and prevents the Landholders themselves getting the best out of their holdings. But whether that were so or not, in considering this question we are bound by the provisions of the Statutes and the interpretation put upon them by the Court of Session. The Statutes have enacted that the feuing of land is a reasonable purpose within the meaning of Section 19 of the 1911 Act, which will authorise a proprietor to apply for resumption of the whole or any part of a Landholder’s Holding. It has further been laid down by the Court of Session in the case of Stewart v Whyte 2 SLCR p. 101, that, if it is proved that resumption is sought for a reasonable purpose within the meaning of the Acts, the Land Court cannot exercise any discretion as to whether the application should or should not be granted, but are bound to authorise resumption. In cases of resumption there is almost invariably hardship imposed upon the Landholder or Landholders in being required to surrender a part or the whole of his or their holdings. But under the decision before referred to, we are not entitled to take into consideration questions of injury to the Landholders concerned, except in so far as it is provided that they shall be adequately compensated for the loss of the land which they thereby sustain. In these circumstances, we have no option, as it is proved that the object of this resumption is a reasonable purpose for the good of the Estate, but to authorise the proprietors to resume the portion of land asked for in order that they may feu it for what is really a public purpose that is designed to benefit all concerned.”

[27] The hardship which resumption almost invariably imposed was ameliorated by the requirement that the landlord had to make adequate compensation to the landholder, either by letting to him other land of equivalent value in the neighbourhood, or by reduction of rent, or by compensation in money, or otherwise. A provision to like effect in relation to adequate compensation survives in section 20 of the 1993 Act to this day. In MacCallum v. Duke of Hamilton’s Trustees 1924 SLCR App 513, the Full Court distinguished Whyte v Stewart, on the ground that the decision of the Inner House had proceeded solely upon a construction of section 32 (15) of the 1911 Act, which formed part of a code exclusively applicable to statutory small tenants, and that construction could not be used to limit or override the different provisions of section 2 of the 1886 Act, which empowered the Land Court to grant resumption subject to terms and conditions. Whilst that ground for distinguishing Whyte v Stewart may hold good so far as the particular point at issue in MacCallum v. Duke of Hamilton’s Trustees, namely whether it was intra vires of the Land Court toattach conditions to a resumption grant, is concerned, it is far from obvious to us that there is any material difference between the wording of the relevant statutory provisions in relation to the wider argument as to whether, where the landlord has satisfied the Land Court that he desires to resume for some reasonable purpose, having relation to the good of the holding or the estate, the Land Court yet retains a residual discretion to refuse to authorise resumption, and no such distinction was drawn in the Lower Bayble Landholders case, which concerned landholders’ holdings rather than statutory small tenancies.

[28] Whyte v Stewart was also followed in Stornoway Trust v Landholders of North Street, Sandwick 1947 SLCR App 102 and Stornoway Trust v Landholders of Melbost and Branahuie 1950 SLCR App 135, although in the former case, the Full Court, under the Chairmanship of Lord Gibson, before finding, “with some difficulty”, that the applicants had stated a purpose which was reasonable in the circumstances, and that the Court were therefore bound to grant the resumption as craved, had noted that:

“In the present case there is a conflict between ‘the good of the holding’ and ‘the good of the estate’ and the Court, in considering whether the applicants have proved a ‘reasonable purpose’, in terms of Section 2 of the Crofters Act 1886, has to weigh carefully these competing considerations [at page 104].”

This observation may be interpreted as representing a further development in the thinking of the Land Court since the Full Court, also under the Chairmanship of Lord Gibson, in Walker v MacEwan, op. cit., expressed the view that:

Prima facie as the Court is essentially a practical body this matter of satisfaction is in the case of partial resumption of a landholder’s holding a practical matter with regard to which the Court must exercise its discretion in each individual case”,

and concluded, on an examination of section 2 of the 1886 Act, that “any one of the purposes stated in sec. 2 may be a ‘reasonable purpose’ but only if the Land Court is satisfied that it is so having relation to the good of the holding or of the estate.” In the interests of completeness, we should explain that the public interest as a consideration in resumption cases did not arise until after the passing of the Crofters (Scotland) Act 1955 into law: cf. Mackay’s Trustees v. Colthart 1959 SLCR 43 at page 46.

Practice Note (No 1)

[29] In a further expiscation of the concept of “reasonable purpose” derived from the case law, which is now enshrined in the Court’s Practice Note (No 1) “Resumption Applications” (February 1992 (Revised January 1994)), the Court, before authorising resumption, “require to be satisfied not only that the resumption is for a reasonable purpose in terms of section 20 but also that the purpose for which resumption is sought will actually be carried out”. In cases where planning permission for a development is required, this may entail the landlord producing evidence that planning permission has been granted, and where resumption is for the purpose of conveying the area of ground to the crofter or a third party, the Court will require evidence of an agreed sale, as for instance concluded missives conditional on resumption being granted. In Lands Improvements Holdings Landmatch S.a.r.l. v Cole 2014 SLCR 85, the Court, discussing the contents of Practice Note (No 1), acknowledged at paragraphs [48] - [50] that the requirement to satisfy it that the purpose for which resumption was sought will be carried out was not expressly contained in section 2 of the 1886 Act nor in section 20 of the 1993 Act,

“but it is implicit; otherwise the court would be obliged to grant resumptions for purposes which, although apparently reasonable, were never in fact likely to materialise, or if they materialised, were likely to fail. Hence the comment by the court in Secretary of State for Scotland v Shareholders of Lealt & Culnacnock Common Grazings [1982 SLT (Land Ct) 20] (at page 30) that it is imperative that resumptions of croft land should not be lightly authorised for purposes which may soon fail.

[49] More generally, it has been recognised in a long series of cases … that resumptions do not merely involve proof of reasonable purpose in the abstract but require proof of a purpose for which it is, in all the circumstances relevant to the interests specified in the successive statutory provisions, reasonable to grant resumption …

[50] The purpose of the practice note is therefore to give guidance as to what the court looks for as evidence to show that the purpose for which resumption is sought will actually be carried out: that it is realistic, credible and feasible. Clearly the existence of planning permission and agreed terms of sale to a developer lend credibility to an application for resumption for the purposes of selling the land for housing development. But the practice note does not, and could not, exclude the possibility that resumption could properly be granted in the absence of one or both of these. What the practice note imports is that the granting of resumption in such circumstances would be exceptional and requires justification.”

Of course, Practice Note (No 1) and the case law which may be taken to have inspired it date from a time when uncertainties remained over the precise scope of the Land Court’s powers to recall a resumption order in a case of subsequent failure of purpose (for which, now, see section 21A (Reversion of resumed land) of the 1993 Act) and before the Land Court had been empowered by section 20 (1B) of the Crofting Reform etc Act 2007 (“the 2007 Act”) to authorise a temporary resumption (i.e. a resumption for a specified period of time). It is thus understandable that the Land Court, before authorising resumption and thus removing land from crofting controls, should have wished to be satisfied that the purpose for which the resumption was sought would actually be carried out.

The 2007 and 2010 amendments to section 20 of the 1993 Act

[30] Section 22 of the 2007 Act introduced a fourth category of interest against which the reasonableness of an applicant’s purpose might be assessed, namely “the interests of the crofting community in the locality of the croft”. Section 42 of the 2010 Act inserted new sections (1AA) to (1AD) into section 20 of the 1993 Act. Section 20 (1AA) of the 1993 Act now allows the Land Court, in determining whether it is satisfied as mentioned in section 20 (1) of the 1993 Act (and, in particular, whether the reasonable purpose mentioned there relates to the public interest) to take into account: (a) the effect that purpose (whether alone or in conjunction with other considerations) would have on the matters mentioned in section 20 (1AC) of the 1993 Act; and (b) where the purpose is, or is connected with, the development of the croft in respect of which planning permission subsists, the effect such development would have on the croft, the estate and the crofting community in the locality of the croft. The matters mentioned in section 20 (1AC) of the 1993 Act are (a) the sustainability of - (i) crofting in the locality of the croft or such other area in which crofting is carried on as appears to the Land Court to be relevant; (ii) the crofting community in that locality or the communities in such an area; (iii) the landscape of that locality or such an area; (iv) the environment of that locality or such an area; and (b) the social and cultural benefits associated with crofting. Section 20 (1AD) of the 1993 Act provides that in section 20 (1AA) of the 1993 Act, “effect” includes both a positive and negative effect.

[31] In contrast to section 19 A (Schemes for development) of the 1993 Act, section 20 of the 1993 Act, like its statutory forerunners, does not expressly prescribe particular grounds of objection which a respondent must make out if the application is to be successfully resisted. Section 20 of the 1993 Act in its current form ostensibly requires the applicant merely to satisfy the Land Court that he “desires to resume the croft, or part thereof, for some reasonable purpose having relation to the good of the croft or of the estate or to the public interest or the interests of the crofting community in the locality of the croft”, but the Land Court over decades has interpreted this as requiring the applicant to “also prove that his purpose is reasonable in all the circumstances of the case”: Beardsall v Bell, op. cit. By this means, the Land Court has sought to escape from the straitjacket seemingly imposed by the decision of the Second Division of the Inner House of the Court of Session in Whyte v Stewart and arrived at an approach to the determination of resumption applications which in practice amounts to the exercise a discretion (applying a general test of reasonableness) where the landlord contends that he desires to resume the croft, or part thereof, for some reasonable purpose having relation to, for instance, the good of the estate, but the crofter opposes the application on the basis that the purpose would not be reasonable having relation to one or more of the other interests referred to in section 20 (1) of the 1993 Act but not founded upon by the landlord (i.e., in this example, the good of the croft or the public interest or the interests of the crofting community in the locality of the croft). This approach has also furnished the Land Court with a basis to adjudicate in cases such as Portman Trustees v Macrae, op. cit., and indeed the present case, in which the landlord and the crofter have competing proposals for the subjects which the landlord has applied to resume, but it is not, in our view, easy to justify it by reference to either the actual wording and scheme of section 20 of the 1993 Act or the approach of the Inner House in the case of Whyte v Stewart.

The new subsections (1AA), (1AB), (1AC) and (1AD) of section 20 of the 1993 Act

[32] The amendments made in 2007 and 2010 have further increased the complexity of section 20 of the 1993 Act. The Land Court did not, in considering Mrs MacLachlan’s appeal against the decision of the Divisional Court to hold that the Landlords had established reasonable purpose, attempt a full analysis of the implications of those amendments, because to dispose of her appeal did not require it and because it would in any case have been inappropriate to do so in the absence of full submissions by the parties. The Land Court’s preliminary remarks, in the Note appended to the Order dated 21 August 2015 about the meaning and effect of the amendments accordingly are, technically, obiter. We had thought, in advance of the hearing, that in order to determine the merits of this application for authority to resume, we would require to embark on a thoroughgoing analysis of the meaning and effect of the 2007 and 2010 amendments, and indicated to parties that, at the hearing, we would be looking to them to assist us by providing us with full submissions thereon. We are grateful to the parties for the efforts they have made in that regard, but in the event, as the hearing progressed, it became apparent to us, for reasons which we shall explain at greater length when we come to discuss the evidence which emerged, that in the particular circumstances of this case, the contents of the new subsections (1AA), (1AB), (1AC) and (1AD) of section 20 of the 1993 Act had little, if any, real bearing on the issues we had to decide.

[33] It is arguable that by providing that the Land Court, in determining whether it is satisfied “as mentioned in subsection (1) above” (i.e. that the landlord desires to resume the croft, or part thereof, for some reasonable purpose having relation to the good of the croft or of the estate or to the public interest or the interests of the crofting community in the locality of the croft), and, in particular, whether the reasonable purpose mentioned there relates to the public interest, where the purpose is, or is connected with, the development of the croft in respect of which planning permission subsists, may take into account the effect such development would have on the croft, the estate and the crofting community in the locality of the croft, section 20 (1AA)(b) of the 1993 Act is merely rehearsing matters which the Court already could, and in practice did, take into account in determining reasonableness of purpose. Section 20 (1AA)(a) of the 1993 Act directs the attention of the Court to additional matters, the effect on which of the landlord’s purpose the Court may take into account, but the important word in that sentence is surely “may” – it is permissive rather than imperative in effect, and as such, it allows that the Court may take the view that the landlord’s purpose (whether alone or in conjunction with other considerations) would have no effect, either positive or negative, on any of the various matters mentioned in section 20 (1AC) of the 1993 Act. That was, indeed, the view we took on the evidence in this case. Furthermore, we were not persuaded that it would make any material difference to the sustainability of crofting in the locality of the croft, of the crofting community, the landscape or the environment of that locality, or the social and cultural benefits associated with crofting, whether the Gorge Park was resumed by the Landlords and sold to Mr & Mrs Dignan or the part thereof newly apportioned to Mrs MacLachlan retained by her as part of her croft and devoted to whatever purpose she ultimately has in mind, as to which, by the end of the hearing, as we shall explain, we remained far from clear.

Conclusions on the law and practice of resumption

[34] We have not, in this Note, attempted to produce either a fully worked out analysis of the wording of section 20 of the 1993 Act or a review of all of the relevant, or potentially relevant, case law, and as it happens, our chosen mode of disposal of this application has meant that we do not require to do so in these proceedings. It does seem to us, however, on the basis of such materials and authorities as we have considered, that it remains far from clear, notwithstanding how long a corresponding provision has featured in the statute book, not only precisely what a landlord who seeks to resume a croft, or part thereof, has to prove, but also what constitutes a relevant defence by the crofter thereto. If indeed the Scottish Government makes good on its manifesto commitment to “modernise crofting law and make it more transparent, understandable and workable in practice”, we respectfully would suggest that a comprehensive review of the law and practice of resumption should be included within any such exercise.

The hearing

[35] The hearing proceeded on 19 and 20 May 2016 upon the basis that the major part of the Gorge Park was no longer common grazings but instead was a part of the croft at 5 Achluachrach of which Mrs MacLachlan is the tenant. We had decided in advance to hold over the issue of valuation for the purposes of section 21 of the 1993 Act until such time as we had decided whether or not resumption should be authorised, and so we did not hear evidence about market value for the purposes of section 21 (1) of the 1993 Act at the hearing. Mr Smith, who is a chartered surveyor by profession, as, by coincidence, is Mrs MacLachlan, appeared on behalf of the Landlords, giving evidence himself and calling as a witness Mr David Dignan, the prospective purchaser, with his wife Mrs Ann Dignan, of the Gorge Park. Mrs MacLachlan represented herself, giving her own testimony and calling as witnesses her husband Alastair MacLachlan, her first cousin Charles Toal, himself a shareholder in the Galmore Common Grazings, Brian Strachan, who is employed by the Galmore Sheep Stock Club to look after the sheep maintained by Club on the Galmore Common Grazings, William Neilson, a crofter and farm manager, former crofting new entrants’ scheme administrator and former Crofters Commission area assessor for Argyllshire, and Lucy Sumsion, NFUS Regional Manager for Argyll & the Isles. Because time did not allow on the circuit, after the conclusion of the evidence, for us both to hear the parties’ closing submissions and carry out a site visit, the Court opted, whilst in the locality, to prioritise the latter, and we ordained the parties to make their closing submissions in written form. We do not attempt, in this Note, to reprise the entire contents of the parties’ respective written submissions, but we have of course considered them carefully and we discuss the particular points emerging therefrom which we considered significant in the body of this Note.

The Gorge Park

[36] Before setting out the parties’ respective cases, it may be helpful for us to describe the area of land over which they have been wrangling for so long. The Gorge Park is a strip of land of a little less than 2 hectares in area, sandwiched between the A86 road to the North and the main railway line going South from Fort William some two miles or thereby East of Roybridge. The road and the railway line in the vicinity of the Gorge Park both follow the course of the River Spean, which lies to the South of the railway line. The ground above the Gorge Park is densely wooded and rises steeply immediately from the North verge of the road. The main part of the Galmore Common Grazings lies above (i.e. to the North of) the road, and the Gorge Park is situated at some remove from both the original part of the croft at 5 Achluachrach of which Mrs MacLachlan was the tenant and the principal sheep handling facilities on the Galmore Common Grazings at Murlaggan, both of which are located further East along the A86. At the East end of the Gorge Park is the gorge which presumably gave the Gorge Park its name. The gorge is steep sided, with the land falling away to a stream that runs from North to South off the hill in the direction of the River Spean. We saw signs of a comparatively recent landslip towards the North East corner of the Gorge Park. The part of the Gorge Park which has been apportioned to Mrs MacLachlan is fairly level and was, when we inspected it, dry underfoot. There are mature trees around the boundaries of the Gorge Park which restrict the view and contribute to a sense of occlusion. Natural seeding has resulted in formerly clear areas within the Gorge Park being encroached upon by scrub woodland and although, when we visited, the new season’s bracken was only just beginning to emerge, it was clear from the vestiges of previous years’ growth that the Gorge Park has for many years been densely covered with bracken. We formed the impression that the Gorge Park had not been grazed for many years. The Gorge Park is fenced on the East, South and West sides by a stockproof fence which would appear to have been maintained over time, presumably by the railway authorities. On the road side the remnants of a post and wire fence can be observed, extending along approximately half the length of the Northern boundary of the Gorge Park to a midpoint which, we were told, was where the original entrance into the Gorge Park had been situated. Here, it appeared that the wires had been cut at the post, and from that point along the side of the road to the Westernmost point of the Northern boundary, there was no sign of any fence or residual fencing materials. The remnants of a post and wire fence which we did observe along the side of the road were of considerable age – perhaps dating back to the 1960s when the A86 was widened – and we were left in no doubt, on the basis of our observations, that the Gorge Park has not been utilised as a stockproof enclosure for livestock (if indeed it ever was) for many years.

[37] Evidence about the history of the Gorge Park was adduced before the Divisional Court in Application RN SLC/18/13 and recapitulated before us. Mrs MacLachlan testified that it had been used as tup park back in the day, some 40 -50 years ago, and Mr Strachan spoke to a time in the last decade, before the main part of the Galmore Common Grazings above the A86 had been fenced, when a group of sheep appeared on the Gorge Park and, defying his repeated attempts to return them to where they had come from, proved to be a sufficient source of inconvenience as eventually to prompt him to send them to market. Whilst we have no reason to disbelieve Mr Strachan’s evidence to that effect, we did consider his characterisation of this process as amounting to those sheep becoming “hefted” to the Gorge Park to be somewhat fanciful. We can readily accept that, particularly in early Spring when food becomes scarce, foraging sheep may have gravitated towards the Gorge Park, and having found once something to eat there, returned on subsequent occasions, but we think it overstates the position to talk in such a context of “hefting”. What Mr Strachan’s evidence to this effect confirmed, consistent with our own observations, is that back when these events occurred, the Gorge Park was not stockproof, thereby permitting straying sheep from the unfenced main part of the Galmore Common Grazings to congregate there. Had the Gorge Park been perceived by the shareholders in the Galmore Common Grazings in more modern times to be a potentially useful area of grazing ground, they readily could have fenced off the road side to render it stockproof: the fact that they never troubled to do so in our view spoke volumes.

[38] We infer that it was precisely because the Gorge Park had, over many years, been a neglected and unused pocket of land, isolated from both the main part of the Galmore Common Grazings and the settlement at Achluachrach, that it first attracted the attention of both the Landlords and Mrs MacLachlan as a potential development site. In the Spring of 2008, the Landlords, proceeding upon the assumption that it was not subject to crofting tenure, made an informal approach to The Highland Council to inquire as to the prospects of obtaining planning permission for the erection of six houses on the Gorge Park. Mrs MacLachlan at or about the same time, on the assumption that it was part of the Galmore Common Grazings, was making inquiries as to the possibilities of getting an apportionment of part thereof. Mrs MacLachlan submitted and obtained outline planning permission for the erection of a house and outbuildings thereon. The Landlords then submitted an application in similar terms. The parties spent a wearisome amount of time at the hearing arguing about whether the permission obtained by the Landlords was properly to be regarded as a renewal of that previously obtained by Mrs MacLachlan (as she claimed, alleging that the Landlords had “piggy-backed” on her application) or constituted a fresh (albeit admittedly in many respects similar) application (as Mr Smith claimed) but for present purposes nothing seems to us to turn upon that issue. Mrs MacLachlan’s planning application and her apportionment application pre-dated the Landlords’ resumption application, Mr Smith explaining that until the Land Court issued its decision in the status application (Application RN SLC/18/13 – Order of 28 March 2014) the Landlords had not believed that resumption would be required, but in our view nothing turns either upon the precise sequence of the events described above.

The Landlords’ case

[39] The reasonable purposes for which the Landlords desire to resume the Gorge Park are two of those mentioned in section 20 (3)(a) of the 1993 Act, namely the using, letting or disposing of the land proposed to be resumed for (i) the building of dwellings; and (vii) planting. More specifically, the Landlords propose to sell the Gorge Park to Mr & Mrs Dignan to enable that couple to erect a dwelling-house, livestock/implement shed and to form an access in conformity with the existing planning permission [Productions 3 and 8] and to carry out planting in conformity with a scheme prepared for Mr Smith by Fountains Forestry [Production 9]. It was explained that the planting scheme prepared by Fountains Forestry was integral to the prospective purchasers’ plans for the site, because the resulting trees would be managed as a coppice woodland to provide a continuous supply of bio-mass wood fuel for the dwelling-house. Before the status of the Gorge Park as part of the Galmore Common Grazings had been confirmed by the Divisional Court, the Landlords had, through agents, advertised it for sale with a price guide of £95,000 [Production 20]. The Gorge Park had been withdrawn from the market because Mrs MacLachlan had complained to the selling agents that the sales particulars had not disclosed that it was subject to crofting law, in contravention of the property misdescription legislation. Given the sensitivities of the site, it was no longer considered realistic that planning permission for more than one dwelling-house on the site would be obtainable, and in the event the Landlords produced concluded missives of sale dated 15 and 17 June 2015 in favour of Mr & Mrs Dignan [Production 42] in which the purchase price was agreed in the sum of £45,000. It was explained by Mr Smith that the provision of services was reckoned likely to be costly and the agreed price took account of the difficulty and expense of developing the site. Whilst the long stop date of 27 December 2015 for purificaction of the suspensive conditions (including the condition that one month prior to the date of entry the subjects would no longer be affected by crofting tenure) provided for in the missives had long since passed, the deal was still on because Mr & Mrs Dignan were committed to it and were prepared to wait. Mr Smith emphasised that his proposal was “certain to go ahead”, which was a factor deserving of weight, when set against the uncertainty which he argued was inherent in the putting into effect of Mrs MacLachlan’s proposals.

[40] Mr Smith contended that resumption would be a reasonable purpose having relation to the croft because were resumption to be authorised, Mrs MacLachlan would, in terms of section 21 (1) of the 1993 Act, be entitled to receive from the Landlords a share in the value of the land so resumed, the amount whereof would be in excess of £20,000, which sum she could then spend on developing what remained of her croft. It would be a reasonable purpose having relation to the good of the estate because the balance of the proceeds of sale, from which, Mr Smith emphasised, the partnership rather than the individual partners in their personal capacity would benefit, would be available for “investment” [sic] in employment, by which we understood him to mean paying the various local contractors who the Landlords engaged from time to time, defraying the costs of maintenance of the estate house, grounds and machinery, meeting any liability for sporting rates (when introduced) and paying for “improvements.” It was telling, as Mrs MacLachlan pointed out in the course of her cross-examination of Mr Smith, that ”improvements” was mentioned almost an afterthought at the end of his answer when he was first asked what the Landlords would do with the proceeds of sale, the previously suggested expenditures all being of a revenue rather than a capital nature. Mr Smith sought also to argue that resumption of the Gorge Park would have a positive effect, having relation to the public interest, on the sustainability of the landscape and the environment of the locality of the croft, in that the Landlords’ proposal for the sale of the Gorge Park contemplated the implementation of the Fountains Forestry planting scheme and would involve fewer buildings on the ground than Mrs MacLachlan’s competing plan for the area apportioned to her.

[41] Mrs MacLachlan also pursued in her cross-examination of Mr Smith the Landlords’ failure to implement the purposes for which they had been authorised by Order of the Court dated 9 November 2012 to resume part of the Galmore Common Grazings in Application RN SLC/189/11. In the three and a half years since that Order had been made, the Landlords’ proposals for the development of the subjects resumed had scarcely progressed beyond erecting a fence around their perimeter. Mrs MacLachlan contended that at the hearing in Application RN SLC/189/11, the Landlords had made out that there was an “urgent” need for the deer larder and the other facilities, the development of which the resumption of the subjects was supposed to enable. The very full Note which accompanies the Divisional Court’s Order dated 9 November 2012 does not record the Landlords as having submitted that their need for the deer larder and the other facilities was “urgent”, but for all that we are quite certain that had the Divisional Court been made aware at the time of its making that three and a half years might elapse from the date of the Order dated 9 November 2012 with no substantive progress towards the completion of the development having been made, it would not have authorised resumption when it did. Mrs MacLachlan argued that this failure on the part of the Landlords to give effect to the reasonable purpose upon the basis of which the earlier resumption had been authorised called into question the likelihood of the reasonable purpose upon the basis of which the present resumption had been applied for ever being put into effect. Mr Smith, under cross-examination, was adamant that the reason why the development of the deer larder and the other facilities had not yet gone ahead was not lack of money: he contended that the Landlords had the money to go ahead with the development both when resumption was first authorised and now, and that the lack of progress was purely down to the burden of the partners’ other business commitments, and a shoulder injury suffered by Mr Bruce which had compromised his ability to take forward such a project in recent times. We did not find this explanation convincing, and it does seem to us that by adopting the position that they did not actually need the proceeds of sale of the Gorge Park in order to complete the development of the deer larder and the other facilities, the Landlords shot themselves in the foot, in that it precluded them from arguing that the reasonable purpose having relation to the good of the estate for which they desired to resume the Gorge Park was to sell it to raise the funds to enable the development of the estate for which the previous resumption had been authorised to go ahead.

[42] Mr Smith sought also to argue that resumption of the Gorge Park in order to sell it to Mr & Mrs Dignan would be a reasonable purpose having relation to the public interest, because by enabling them to build there, it would allow a local family, active in the community, to “consolidate”, as he put it, their position in that community. The Dignans are not themselves members of the crofting community, as “crofting community” is defined in section 61 (1) of the 1993 Act, and so it is difficult to conceive of how resumption could be justified on the basis of its being a reasonable purpose having relation to the interests of the crofting community in the locality of the croft. The problem with the Landlords’ “public interest” argument is that, on the evidence, the positions of Mr & Mrs Dignan, who already own house and business premises nearby, and of their two sons, the elder of whom is aged nearly 21 and the younger 13, in the local community are already quite secure. Their elder son Jack is presently an apprentice electrician, employed by Rio Tinto at the smelter just outside Fort William, and Mr Dignan did express the hope that he might, at some stage, join his father in Mr Dignan’s small mechanical engineering business, Dignan Technical Services. Mr Dignan was notably circumspect in answering questions as to his future plans for any dwelling-house that might be built by him on the Gorge Park, and whilst it was, somewhat faintly, suggested that at some unspecified future point in time, this might be available to provide a home for Jack, Mr Dignan acknowledged that there was no certainty as to what his son might decide to do in future.

[43] Mr Dignan spoke of his proposed development on the Gorge Park being completed within 2/3 years, but we did not record him as positively asserting at any point in his evidence that he and his wife or any other member of his family would be moving into the dwelling-house thereon upon completion, although he did confirm that it would not be allowed to stand empty. In answer to a question from the Court as to whether, were resumption to be authorised, we might return in three years time to find the dwelling-house being operated as a high end holiday let, Mr Dignan stated that this was not his intention at this moment in time, and he emphasised that that was “not what I am about”. Mrs MacLachlan elicited from him in cross-examination that he already owned another 2½ hectare area of land in the locality, but that planning restrictions meant that it was unsuitable for residential development. He took issue with her suggestion that if he wanted to build another house for his family, there was scope to do so on the site, quite similar in size to the Gorge Park, occupied by his existing home, stating that he did not approve of jamming developments together in rural areas and citing potential access difficulties. Mrs MacLachlan asked him a series of questions intended seemingly to test how much preparatory work he had carried out with a view to assessing the feasibility of developing the Gorge Park in accordance with the existing planning permission, in response to which Mr Dignan, who testified to having extensive past experience of building projects, including having built his own first house at the age of nineteen, expressed his confidence that the infrastructure costs would be manageable and the groundwork within his own firm’s capabilities. He did not foresee any particular difficulties with what he perceived to be a fairly straightforward construction project.

[44] In cross-examination of both Mr Smith and Mr Dignan, Mrs MacLachlan referred to the latter as being an “associate” of the former, her manner in so doing initially seeming to hint at the term carrying some sinister connotation, and she sought to draw out from them in evidence the nature and extent of their business links. In response to this line of inquiry, both insisted that their business links extended no further than the provision by Mr Dignan of his firm’s professional services in connection with various works instructed by the Landlords on the Glen Spean Estate in exchange for payment. Mrs MacLachlan put it to Mr Dignan that he was regarded locally as being the estate manager in Mr Smith’s absence, a suggestion he bluntly refuted. Mrs MacLachlan took the witnesses through five clauses in the missives which, she submitted, would allow Mr & Mrs Dignan to resile therefrom in certain circumstances, and whilst we ourselves could see nothing particularly unusual or untoward in the contents of those standard clauses, it became increasingly clear to us, as Mrs MacLachlan’s questioning of Mr Smith and Mr Dignan proceeded, that she was insinuating that the missives of sale entered into between the Landlords and Mr & Mrs Dignan were a sham. What was much less obvious to us, and what remained unclear to us at the end of the hearing, was what purpose, according to Mrs MacLachlan, such a sham was supposed to serve. We formed the impression that Mrs MacLachlan may suspect that the Landlords and Mr Dignan have plans, perhaps in the form of some sort of joint venture, for the Gorge Park, once resumption has been authorised, quite different from what is adumbrated in the Landlords’ Application, but Mrs MacLachlan at no stage in the proceedings articulated what she thought those plans might be. She did, however, establish at the hearing that Mr & Mrs Dignan would, upon purchasing the Gorge Park from the Landlords, be under no legal obligation to implement the Fountains Forestry planting scheme.

Mrs MacLachlan’s case

[45] The croft at 5 Achluachrach, as tenanted by Mrs MacLachlan before she obtained her apportionment, came into being in or about 2007 as the result of a division of a larger croft of which her sister Mrs Patricia Lamont was already the tenant. It extends to a mere 1.95 ha and is one of a series of small crofts, situated alongside one another on the flood plain of the River Spean, each of which consists of a flat, unfenced, area with no other fixed equipment. The Galmore Common Grazings and Sheep Stock Club operate an “open croft” policy, meaning that this croftland along the bank of River Spean is accessible to the stock of the Sheep Stock Club from November through to the beginning of June each year, and indeed when we carried out our inspection of the crofts at Achluachrach on 20 May 2016, there were ewes and lambs belonging to the Sheep Stock Club present in number thereon. Mrs MacLachlan and her husband Alastair, who like his wife qualified as a chartered surveyor but opted instead to pursue a career as a plantsman, farmer and landscaping and ground maintenance contractor, were in 2007, and continue to be, the owner-occupiers of High Millburn Farm, Alexandria, a farm of some 60 acres (22.80 ha) situated approximately 100 miles South of Achluachrach. Mrs MacLachlan has extensive family connections in the Glen Spean area, but she is, and has throughout the period she has been the tenant of 5 Achluachrach, an absentee crofter, in breach of the statutory residency duty now embodied in section 5AA of the 1993 Act, which in its present form requires a crofter to be ordinarily resident on, or within 32 kilometres of, that crofter’s croft. Mr & Mrs MacLachlan established and continue to run a beef suckler herd of Aberdeen Angus cattle at High Millburn Farm.

[46] In applying for an apportionment of part of the Gorge Park, Mrs MacLachlan placed before the Commission a document she and her husband had prepared entitled “PROPOSALS FOR APPORTIONMENT AT 5 ACHLUACHRACH, ROY BRIDGE 5 YEAR PLAN” [Production 44] (“the 5 Year Plan”), which according to the report on her application submitted by staff of the Scottish Government Rural Payments and Inspections Directorate (“SGRPID”) in Oban to the Commission, “includes building a house and shed, fencing, land improvements, veg production, tourism accommodation and landscape/agricultural business, which would justify the area requested” [Production 40]. The 5 Year Plan envisaged that in Year 1 the apportionment would be fenced, a livestock/equipment shed erected and services installed. Five heifers would be purchased locally and grazed on the croft. In Year 2, a house would be erected on the site, and the heifers, having been covered, would be sent to the hill, before being brought in to calve indoors towards the turn of the year. In the third year, a polytunnel would be erected for the production of vegetables for the MacLachlans’ own use, and tourism and landscape/agricultural businesses would be commenced from the croft. The cows and their calves would go to the hill, and the MacLachlans would “Negotiate expansion of souming/alteration of grazing regs. to increase numbers.” What this element of the 5 Year Plan was alluding to was the fact that the existing souming for 5 Achluachrach was 3 cattle and followers, and that in order for the MacLachlans to expand numbers to achieve a herd of 20 breeding cows and followers by the fifth year, as the 5 Year Plan envisioned, it would be necessary for them to secure the use of other shareholders’ unused cattle souming. Regulation 13 (3) of the Regulations for the Management and Use of Galmore Common Grazings and Sheep Stock Club dated 21 October 1998 provides that:

“If any shareholder is not able to maintain his full cattle souming, the Committee shall have power to allow another Shareholder(s), whom failing, any other person(s) to graze cattle on the Common Grazings to the extent of the deficiency for a set period subject to such conditions as the Committee specify. The person(s) who has been permitted to graze cattle shall make payment to the Committee of such sum as the Committee may fix.”

It appeared to be common currency amongst the various witnesses that this would entail Mrs MacLachlan obtaining the agreement of the Committee from year to year to make use of other shareholders’ unused souming, and it was acknowledged in the 5 Year Plan that use of the Common Grazings was “crucial” to the MacLachlans’ future proposals. Year 4 of the 5 Year Plan would see the erection of a second polytunnel “for the production of bedding plants and shrubs for use in landscaping business and for sale to other local firms. Employ trainee to deal with increased workload within landscaping contracting business”.

[47] The 5 Year Plan did not expressly state that Mr & Mrs MacLachlan would, within the timescale of the 5 Year Plan, themselves be taking up ordinary residence on the croft at 5 Achluachrach, and the SGRPID report, which was compiled after Mr & Mrs MacLachlan had been interviewed by two SGRPID officials, is similarly elusive on that issue, although it is noted therein that in the event of the apportionment being obtained, “The croft will be run in conjunction with High Millburn Farm, where calves born at Achluachrach will be taken for finishing. High Millburn Farm will be run by their son.” In proposing to approve her application, the Area Commissioner, Colin Kennedy, under reference to paragraph 116 of the Commission’s Policy Plan to the effect that “An application to apportion from a crofter in breach of statutory duties, including the residency duty and in the latter case one who does not have consent to be absent, will need to demonstrate how the proposed apportionment will help resolve the breach of duty”, explained that authorising the apportionment would allow Mrs MacLachlan to take up residence within 32 kilometres of the croft, thereby resolving the breach of duty. The apportionment was granted, then, in the expectation that Mrs MacLachlan would in due course be taking up ordinary residence on the croft at 5 Achluachrach, but even now, after proof has been led and closing submissions in writing have been received by us from Mrs MacLachlan, it remains unclear to us on the evidence whether, in the event of the Landlords’ application to resume being refused, it is the intention of Mr & Mrs MacLachlan to sell up and sever their ties with High Millburn Farm and make the croft at 5 Achluachrach their ordinary residence in its stead.

[48] Mr MacLachlan testified that “Initially, the idea was we’d sell High Millburn and have a nice wee stack of money to come up here”, but the proposal in the 5 Year Plan that the weaned calves bred on the croft would be finished on High Millburn Farm proceeds upon the basis of its retention. The SGRPID report recounted that High Millburn Farm would be run by Mr & Mrs MacLachlan’s son, but it emerged in the course of evidence that the son, Duncan, aged 23, not only has himself no stake in the farm business, but also that he lives in Stirling and works full time in an agriculture-related business based in Edinburgh, and would not meantime be in a position to take over at High Millburn Farm, where, as Mr MacLachlan confirmed, the cattle operation in any case did not represent a “proper full time income”. We noted Mr MacLachlan as stating in evidence that “The desire [our emphasis] is to come here and live here”, but in stark contrast to the (at least superficial) sheen of sureness of purpose exuded by the timetable contained in the 5 Year Plan, Mr & Mrs MacLachlan’s future plans with regard to the croft at 5 Achluachrach at the hearing came across as being surprisingly inchoate and contingent. Whilst Mr MacLachlan spoke to installing a residential caravan on the apportioned part of the Gorge Park and himself living on site over the first couple of years, it was clear that his wife would not be making a permanent move to Glen Spean any time soon, given that Mrs MacLachlan confirmed in evidence that she was intending to continue with her work as a chartered surveyor part time with her current local authority employer for a number of years yet and that she had, at the time of the hearing, an outstanding application before the Commission under section 21B (1) of the 1993 Act for consent to be absent from the croft at 5 Achluachrach for a period of up to 5 years.

[49] The general tenor of Mrs MacLachlan’s evidence was that the development on the apportioned part of the Gorge Park which now forms part of the croft at 5 Achluachrach could be financed through savings and borrowings (she specifically referred to a borrowing facility of £100,000 being available to them to finish the development), which implies that she and her husband would be retaining ownership of High Millburn Farm, but if that be correct, it might be reckoned to call into question whether Mr & Mrs MacLachlan genuinely intend, having built a dwelling-house and shed on the apportioned part of the Gorge Park, to make the croft at 5 Achluachrach their ordinary residence thereafter and proceed to implement the other elements of the 5 Year Plan. Whilst Mr MacLachlan impressed us as being an industrious and capable individual who, even at his 62 years of age, would be well able to play a significant role in overseeing the development of the site and assisting in the construction of the proposed dwelling-house and livestock/equipment shed, we were left in some doubt as to just how ready Mr & Mrs MacLachlan are to proceed by Mrs MacLachlan’s answer, when asked by Mr Smith what sort of house they would be building, and what costings they had done, that “We haven’t done anything on house costings”; she went on to explain that the family’s changed circumstances since she first embarked on her campaign to secure an apportionment of part of the Gorge Park meant that their accommodation needs were now different, but the costings for the dwelling-house had not been updated to reflect those changed needs. Mrs MacLachlan seemed oblivious to the irony that when Mr Smith, in cross-examination, asked her about the extent of the investigations she had instructed to determine the feasibility of building on the site, her answers were no more convincing than those given by Mr Dignan when she had asked the same questions of him the previous day. So far as the idea outlined in the 5 Year Plan that Mr MacLachlan would establish a landscape/agricultural business operating from the croft is concerned, we are frankly sceptical that, having spent a couple of years on the preparation of the site and the erection of the buildings, he would be likely then to embark on establishing a new landscaping business from the croft, particularly given that earlier this year, Mr MacLachlan opted not to renew his ongoing ground maintenance contracts and terminated the landscaping and contracting business he operated from High Millburn Farm. Under cross-examination Mr MacLachlan expressly disavowed any intention to erect a second polytunnel on his wife’s apportionment, notwithstanding that the 5 Year Plan had contemplated the erection of such “for the production of bedding plants and shrubs for use in landscaping business and for sale to other local firms.”

[50] More fundamentally, however, we are not at all persuaded on the evidence that the central element of the 5 Year Plan, that of building up a herd of 20 breeding cattle to run over the Galmore Common Grazings, is “viable and practicable”, to adopt an expression which came up at the hearing in the evidence of Ms Sumsion. The most glaring flaw in the 5 Year Plan is that the MacLachlans would have no guarantee from one year to another that the Committee would agree to reallocate unused cattle souming to them to enable them to maintain more than the 3 cattle and followers currently allotted to the croft at 5 Achluachrach by way of souming on the Galmore Common Grazings. Mrs MacLachlan expressed confidence that such agreement would be forthcoming, but we learned at the hearing that a market in grazings shares in the Galmore Common Grazings had emerged in recent times, and that whilst there may be unused cattle souming available for reallocation today, there are other people interested in acquiring grazings shares who may be minded in future to make use of such souming. Given that, as the 5 Year Plan makes clear, use of the Galmore Common Grazings is “crucial” to the putting into effect of the MacLachlans’ future proposals, we were quite astonished to hear from Mrs MacLachlan that when her own sister, Mrs Patricia Lamont, decided to assign her grazings share, Mr MacLachlan put in an offer for it, but, according to Mrs MacLachlan, “we were out-bid”, not being prepared to pay more for it than what they reckoned it was worth. We find it difficult to believe that had Mr & Mrs MacLachlan seriously intended to purse the expansion of a cattle herd on the Galmore Common Grazings as set out in the 5 Year Plan, they would have allowed themselves to be out-bid in a competition for a relative’s grazings share which, once secured, would have permitted their plans for expansion of the herd to go ahead upon an at least slightly more secure footing than that upon which they would otherwise rest. Mrs MacLachlan spoke to another recent transaction involving a share in the Galmore Common Grazings upon which the MacLachlans missed out, because a deal had been concluded before they got to hear about it, but in response to the suggestion from Mr Smith that a trend was emerging of shareholders not coming forward to assign their shares to her, her somewhat curious answer was that she hadn’t said she required an additional souming assignation.

[51] Mrs MacLachlan led evidence from her local NFUS representative, Ms Sumsion, who had been afforded the opportunity to consider the 5 Year Plan and had visited the area of the resumption site and the Galmore Common Grazings in the Autumn of 2015, on the basis of which experiences she confidently assented to the proposition put to her by Mrs MacLachlan, early in her evidence, that the proposals in the 5 Year Plan were “viable and practicable”. We would pause to observe at this juncture that whilst the manner in which Mrs MacLachlan presented Ms Sumsion’s evidence suggested that she was being put before the Court as a skilled or expert witness, we do not consider that she can be treated as such. Ms Sumsion at one point in her evidence spoke to being in Court in her capacity as NFUS Policy Manager for crofting, and at another as being there to speak for Mrs MacLachlan, one of her organisation’s members, and we are not confident that she possessed any real understanding of what the role of an expert witness entails. In any case, her testimony that the proposals in the 5 Year Plan were “viable and practicable” did not long survive even the somewhat less than exacting scrutiny to which it was subjected by Mr Smith’s cross-examination at the hearing.

[52] Having spoken first in general terms at some length to the NFUS’s view that crofting communities and viable crofting business should be supported, Ms Sumsion offered the opinion, based on her own observations of the Galmore Common Grazings, that there was “plenty of scope” for greater numbers of livestock, and particularly cattle, being less selective eaters than sheep, to be maintained thereon. Under cross-examination, it transpired that Ms Sumsion had not spoken to any of the other shareholders before reaching this conclusion, and her inspection of the 7,500 acres of the Galmore Common Grazings was limited to a drive through the glen and walking “a few hundred yards” into the grazings. Having contended in one answer that the land she saw at the end of the growing season “certainly was not overgrazed”, her position was later modified to one of acceptance that on the basis of her limited inspection, it was not possible to reach such a sweeping conclusion as to the state of the Galmore Common Grazings, and that some parts thereof might be undergrazed and others overgrazed. A proper habitat inspection would be required before reaching any such conclusion, and if she had been carrying out such an inspection, she would have done more. When taxed on what she had meant when declaring the proposals in the 5 Year Plan (which omitted any costings or cash flow analysis) were “viable and practicable”, she conceded that she did not mean financially viable: all she meant was that if the MacLachlans had the funds behind them, this was something they could do. She had not, herself, carried out an independent business appraisal of the 5 Year Plan. In reaching her conclusion that the proposals in the 5 Year Plan were “viable and practicable”, she did not appear to have attached any weight to the fact that the contemplated expansion of the cattle herd on the Galmore Common Grazings was entirely dependent upon the ongoing good will of the Committee. We did not find Ms Sumsion’s evidence helpful.

[53] The other non-local witness led by Mrs MacLachlan, Mr Neilson, has enjoyed a long and varied career in the agricultural and crofting sectors, and had in the past visited High Millburn Farm in the course of his work as an assessor with Quality Meat Scotland. Nothing he had seen on those occasions had given him any reason to doubt that it was a competently run operation. Mr Neilson had also seen the 5 Year Plan, which he observed was quite similar to the plans he had looked at for the purposes of the crofting new entrants’ scheme, but he emphasised that in order to assess those plans, he would have needed more financial information. Mr Neilson also gave evidence in general terms about the wider socio-economic benefits which accrue from having an active crofting community in a locality, and when asked about the viability of the proposals in the 5 Year Plan, he set out his own vision of crofting as not being primarily about making a living from the croft, but rather about providing people with a base from which to live and work, enabling them to supplement their income from produce grown or raised on the croft and bringing new skills into the local community. When it was put to him by Mr Smith that on that basis, crofting was thus “a lifestyle choice rather than a financially feasible exercise”, we did not understand Mr Neilson to demur. Mr Neilson was a credible witness, but his evidence in the main was expressed at a level of generality that rendered it of little real assistance to us in our task of deciding this application.

[54] Mrs MacLachlan’s reliance on these two witnesses from outwith Glen Spean also caused as to question just how strong was the support for her position within the local crofting community. We heard evidence that Mrs MacLachlan travels from Alexandria to attend the regular monthly meetings of the Galmore Common Grazings and Sheep Stock Club and that the subject of the Gorge Park came up at every second meeting. We did wonder whether Mrs MacLachlan may perhaps have overestimated the level of interest of the other shareholders in this topic over the several years the saga of the Gorge Park has dragged on, and it struck us as slightly curious that she was not in a position to adduce more evidence of support for her position at the hearing from members of the crofting community in the locality. Mr Toal spoke to having been in attendance at the meeting of the Galmore Common Grazings and Sheep Stock Club at which Mrs MacDonald was deputed to write to the Court to express the view that the Gorge Park “be retained in crofting use and not be resumed by the landlord as this would be detrimental to the crofting community”, but that letter, dated 20 April 2015, pre-dated the apportionment order in favour of Mrs MacLachlan, the consequence of which, were resumption to be authorised, would be that the share in the value of the land resumed that is payable to the crofter in terms of section 21 (1) of the 1993 Act would go exclusively to her, rather than be apportioned among all of the shareholders in the Galmore Common Grazings. The Commission’s decision to grant Mrs MacLachlan her apportionment placed her in what was effectively a win : win situation in these resumption proceedings, in that were resumption to be authorised, and the part of the Galmore Common Grazings recently apportioned to her thereby removed from her croft, she would still walk away with a windfall benefit of a sum in excess of £20,000 in respect of an area of land she had, to all intents and purposes, never occupied, at the expense of the other shareholders.

[55] Mr Strachan supported the general principle of more cattle being put on the Galmore Common Grazings to graze down the more rank grass, but his support for the retention of the apportionment as part of Mrs MacLachlan’s croft at 5 Achluachrach appeared to us to be founded primarily upon his belief that in consequence of the open crofts policy operated by the Galmore Common Grazings and Sheep Stock Club, he would be able to make use of the two paddocks that would be created within the apportionment, once the area had been enclosed and the internal fencing contemplated by Mr & Mrs MacLachlan put into place, for holding tups and the like. Whilst the open crofts policy operated by the Galmore Common Grazings and Sheep Stock Club is an eminently practical arrangement where there are a number of crofts close together over which the livestock can range freely, it is rather less so in relation to a pocket of croft land as isolated from the other crofts and from the main part of the Galmore Common Grazings as the area apportioned to Mrs MacLachlan. We think it highly likely that if Mr Strachan truly needs more holding areas for small numbers of sheep, he would make the case to the Committee for them to be created at a location more convenient for him, as for instance at the sheep handling facilities at Murlaggan, and we are extremely sceptical that he would go to the trouble of loading stock into trailers and bussing them to and from the two small paddocks that the MacLachlans reportedly have it in mind to create upon the apportionment if there were any more accessible alternative holding areas available to him.

The availability of other sites suitable for Mrs MacLachlan’s purposes

[56] The Note which accompanied the Order of the Court dated 21 August 2015 identified the issues of whether there were other sites on the Galmore Common Grazings available to Mrs MacLachlan for the erection of a dwelling-house, and what efforts she had made to acquire another site, as at least potentially relevant issues of fact upon which the parties were, on the face of their respective pleadings, in dispute. It was because there were between the parties disputed issues of at least potentially relevant fact that the issue of reasonable purpose could not be determined as a paper exercise, but would require proof to be heard. At the hearing, Mr Smith, referring to the many properties in the locality which had been exposed for sale in all price ranges over the past 9 years, suggested that there had been numerous opportunities for Mrs MacLachan, if she had really wanted before now to comply with her residency duty under section 5AA of the 1993 Act, to purchase a dwelling-house within 32 kilometres of the croft at 5 Achluachrach. He also identified a number of other potential development sites on the Galmore Common Grazings which he contended would be suitable for Mrs MacLachlan’s purposes, three of which we inspected after the hearing.

[57] We have no difficulty in accepting Mr Smith’s evidence that had Mrs MacLachlan really wished to acquire a property within 32 kilometres of the croft at 5 Achluachrach since she became the tenant thereof, there were ample opportunities for her to do so. Mrs MacLachlan spoke rather vaguely about some nine properties she had considered over that time, and two she and her husband had actually offered for, but she did not speak to the only documentary lodged vouching therefor. Of the three sites we inspected, two (the “Roadman’s Cottage” site and another centred on the site of an old byre or storage shed accessed from the same side road) were too small for the MacLachlan’s purposes, but the third site, located near to the Galmore Sheep Stock Club sheep handling and storage facilities at Murlaggan, appeared to us to be eminently suitable, and we did not consider that Mrs MacLachlan’s dismissal of it, upon the stated basis that its development would conflict with the use of the fank and the movement of sheep on and off the hill, was well founded in fact.

[58] It seemed to us to be entirely clear on the evidence we heard that moving to take up ordinary residence in or about Glen Spean has not hitherto fitted into Mrs MacLachlan’s life plan, and indeed, given that she has now applied for consent to be absent from the croft at 5 Achluachrach for a further period of up to five years, it would appear that it does not, even yet, do so. We think also that, having identified what she considers to be the ideal site upon which to build, no alternative site or property could ever satisfy her, and she would find some fault with or objection to any one that was suggested to her. All that said, however, in consequence of the decision of the Commission to apportion part of the Gorge Park to her, that area of land must be treated now as forming part of the croft at 5 Achluachrach, and that being so, in our opinion, the issue of whether there are other sites on the Galmore Common Grazings that might be suitable for Mrs MacLachlan’s purposes loses much of whatever relevance it might previously have had.

Conclusion

[59] We left Glen Spean after the hearing with the distinct sense that the Court had not been told the whole story by either side as to what the future would hold for the subjects in dispute if the position for which they were arguing were to be upheld. In the case of the Landlords, Mr Dignan was extremely cagey as to the use to which the dwelling-house he was proposing to erect on the Gorge Park would be put, should resumption be authorised and the sale to him of the Gorge Park proceed. In the case of Mrs MacLachlan, we were left wondering: (i) whether the members of the MacLachlan family themselves yet know whether High Millburn Farm will be sold by Mr & Mrs MacLachlan or retained in their ownership until such time as Duncan MacLachlan, if indeed he wishes to do so, is in a position to take it on; or (ii) when Mr & Mrs MacLachlan actually will take up ordinary residence on the croft at 5 Achluachrach. Whilst we do not go so far as to hold that the 5 Year Plan represented a false prospectus, drawn up by its authors with the object of selling the case for granting an apportionment to the Commission but with no real intention on their part of ever putting it fully into effect, nor do we consider, for the reasons previously given, that its contents stand up to proper forensic scrutiny: it may well be that Mr & Mrs MacLachlan intend to retire to Glen Spean when Mrs MacLachlan is ready to give up her work, and it may well be also that the MacLachlans will, when they do, keep a few cattle that may spend some of their time out on the Galmore Common Grazings, but beyond that, we are sceptical that the contents of the 5 Year Plan represent a realistic blueprint for their future life on the croft at 5 Achluachrach. Given, however, that the subjects apportioned to Mrs MacLachlan now do form part of the croft at 5 Achluachrach, we have to determine what relevance these reservations about the case presented by Mrs MacLachlan at the hearing have for the disposal of the Landlords’ application to resume the larger area of land of which Mrs MacLachlan’s apportionment forms part.

[60] We have come to the conclusion that in the particular circumstances of this case, the Landlords must fail, notwithstanding the somewhat negative view we have taken of much of the evidence placed before us by Mrs MacLachlan. This is an application by the Landlords under section 20 (1) of the 1993 Act to resume an area of land, most of which, in consequence of the Commission’s decision to apportion it to Mrs MacLachlan whilst these proceedings were pending before the Court, must be taken to form part of her croft at 5 Achluachrach. It was for the Landlords, in terms of section 20 (1) of the 1993 Act, to satisfy us that they desired to resume the Gorge Park, including the part thereof which is now part of Mrs MacLachlan’s croft, for some reasonable purpose having relation to the good of the croft or of the estate or to the public interest or the interests of the crofting community in the locality of the croft. This, it seems to us, they manifestly failed to do.

[61] The evidence led by Mr Smith did not persuade us that resumption of the area of land which the Commission apportioned to Mrs MacLachlan would be a reasonable purpose having relation to the good of the croft at 5 Achluachrach, the original part and the apportionment now having to be treated as an unum quid. Given the small size of the original part of the croft at 5 Achluachrach and the limited uses to which, with its propensity to flood and the restrictions placed on the tenant’s freedom of action for much of the year by the open crofts policy operated by the Galmore Common Grazings and Sheep Stock Club, it can be put, we do not consider the argument that resumption would be a reasonable purpose having relation to the good of the croft, because it would provide Mrs MacLachlan with additional funds to invest in the improvement of the remaining part, to be realistic in the circumstances.

[62] For the reasons alluded to in paragraph [42] above, we were not satisfied that resumption could be justified by reference to either the public interest or the interests of the crofting community in the locality of the croft. In seeking to satisfy us that resumption of the Gorge Park would be a reasonable purpose having relation to the good of the estate, Mr Smith might have argued that the proceeds of the ensuing sale to Mr & Mrs Dignan would make funds available to the Landlords for investing in some capital project for the enhancement of Glen Spean Estate, but he led no evidence as to any new capital project that the Landlords had it in mind to undertake, and the Landlords’ ongoing failure to follow through on the deer larder project for which authority to resume had previously been obtained, despite lack of funds not, we were assured, being the reason for the construction works not even having been commenced, let alone completed, further compromised the Landlords’ position in this regard.

[63] In her written closing submissions, Mrs MacLachlan founded upon the cases of Lewis Island Crofters Ltd. v MacKay 1940 SLCR 69 and Walker v MacEwan, op. cit., as authority for the proposition for which they are cited by Sir Crispin Agnew of Lochnaw Bt, QC in Crofting Law (2000) at page 95 (note), that: “Where the application is purely for the benefit of the person who is to obtain the resumed land, that is not a legitimate reason for resumption”. We would also mention in this context the decision of the Full Court in Buckworth v Ross 1925 SLCR 84, which MacCuish and Flyn, op. cit., at paragraph 10.04 (a), cite as authority for the proposition that “financial benefit alone is not a sufficient ground for resumption.” In that case, the landlord sought to justify resumption of a holding to enable him to home winter his own sheep thereon at a lesser cost to him than wintering them elsewhere. The Full Court rejected this argument, holding that:

“That is, … , merely a financial consideration affecting the pocket of the proprietor, and we are of opinion that in no sense could it be put forward as a ground of resumption, either independently or as a makeweight to strengthen the grounds of resumption previously dealt with. It raises an entirely different class of consideration, which has no affinity to any of the legal grounds of resumption [at page 98].”

The legal grounds of resumption as at that date were the good of the holding or the estate. Although in his written Closing Submission dated 6 June 2016, Mr Smith now seeks to persuade us that:

“The resumption will be for the good of the Estate with the net sale receipts contributing to an ongoing capital investment project (the construction of buildings and break out areas on land adjacent to the Estate house) or capital expenditure on other assets such as capital improvements to the Estate house or store buildings at the Estates discretion and in accordance with good Estate management practice”,

the complete lack of specification within that passage does nothing to dispel the impression we formed when Mr Smith, then on oath, answered Mrs MacLachlan’s question as to how the proceeds of sale of the Gorge Park to Mr & Mrs Dignan would be spent, and he replied with a list of what we previously have characterised as revenue expenses. We do not consider, on our reading of section 20 (1) of the 1993 Act and on the authorities, that helping to defray such expenses can constitute reasonable purpose having relation to the good of the estate.

[64] It follows from all of the above that, taking the evidence presented by Mr Smith at the hearing at its very highest, we do not consider that the Landlords have satisfied us that they desire to resume the Gorge Park for some reasonable purpose having relation to the croft or of the estate or to the public interest or the interests of the crofting community in the locality of the croft. We are able to reach this conclusion without having to embark upon the sort of “balancing of interests” exercise which the more modern authorities support, but we would observe that had the Commission not granted the apportionment order, and the Landlords put forward some colourable case for resumption of the Gorge Park on one or other of the four grounds set out in section 20 (1) of the 1993 Act, our decision might very well have gone the other way, given the conflicts and weaknesses in Mrs MacLachlan’s case which the hearing exposed.