FULL COURT

(Sheriff MacLeod, Mr Macdonald)

MACDONALD & ORS v SOUTH UIST ESTATES LIMITED, trading as STORAS UIBHIST

(Application RN SLC/37/08 – Order of 24 February, 2009)

CROFTING – SCOPE AND EXTENT OF RESERVATION FOR PLAYING OF GOLF ON COMMONG GRAZINGS – LEGAL NATURE OF COMMON GRAZINGS AND EXTENT OF LANDOWNER’S RIGHTS TO USE LAND COMPRISED IN COMMON GRAZINGS

The township of Askernish in South Uist was created as a land settlement scheme under the Small Landholders (Scotland) Act 1911 as amended. The conditions of let included a reservation in favour of the landlord for the playing of golf on Askernish Machair, which forms part of the common grazings allocated to the 11 crofters of the township under the scheme. The reservation contained a provision to the effect that any question over its extent and scope was to be referred to the Scottish Land Court. In 2006 the landlords, a community owned company, began work on replacing what had at that time been a nine-hole course with an 18-hole course in an attempt to replicate the original 18-hole course believed to have been designed by Old Tom Morris towards the end of the nineteenth century. They also announced ambitious plans for economic development based on the proposed new course. The applicants, comprising seven of the current crofters, applied to the Court for various orders to do with the legal status and effect of said reservation

The Court found that the golfing reservation continued to be enforceable and that the respondents were entitled to develop the course as a commercial enterprise so long as doing so did not impinge on the crofters’ ability to graze their souming of stock on the common grazing. The Court also discussed (at paragraphs [114] to [120] below) the nature and extent of the rights of landowners of common grazings to use the land for their own purposes and expressed, obiter,its view (1) that the right of a crofter in a common grazings is not merely a right to as much grass as will satisfy his souming but a right to graze his animals over the entire common grazings; (2) that it is not, therefore, the law that the owner of land comprising a common grazings can do what he likes on the land so long as he leaves sufficient grass to allow the shareholders to graze their soumings; (3) that if some shares in a common grazings are vacant the land owner can use these for the grazing of his own stock up to the level of the relevant souming; and (4) that while the statutory rights reserved to landlords in paragraph 11 of Schedule 2 to the Crofters (Scotland) Act 1993 Act can be exercised without the need for resumption and to any extent short of rendering it impossible for crofting tenure to be maintained, where a land owner wants to use common grazings or part thereof for any other purpose he has to proceed by way of either an agreement approved by the Court under sec 5(3) of the 1993 Act or resumption under sec 20.

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

[1] The applicants are seven crofters who are shareholders in the Askernish Common Grazings, South Uist. The original respondents were the other four shareholders in said Common Grazings and South Uist Estates Limited, heritable proprietors of the township of Askernish, including said Common Grazings, as they are of most of South Uist. In addition to these respondents, Askernish Golf Club was mentioned in the application as an interested party. The four crofters listed as respondents have not lodged answers to the application. South Uist Estates Limited entered the process, lodging answers under their trading name “Storas Uibhist”, a designation which changed back to South Uist Estates Limited by way of amendment in the course of the debate aftermentioned. Askernish Golf Club, although they lodged answers to the application, are not currently separately represented, their interests being subsumed in those of South Uist Estates Limited (see paragraph [11] below). In what follows, therefore, where we refer to “the respondents” that is a reference to South Uist Estates Limited.

[2] The applicants seek the following orders from the Court:-

(i) A finding that the pre-2006 arrangements for the playing of golf on Askernish Machair, which is part of the common grazings, were unofficial in that they were not incorporated into the Askernish Common Grazings Regulations, not taken account of when fair rents were fixed for the Askernish crofts and not approved by this Court in so far as they deprive crofters of rights conferred on them by the Crofters (Scotland) Act 1993 (“the 1993 Act”);

(ii) A determination of the present effect of a reservation for the playing of golf on Askernish Machair contained in the 1922 land settlement scheme which created Askernish township;

(iii) Declarator that the playing of golf on said machair as presently proposed will deprive the crofter shareholders of rights conferred on them by the 1993 Act; and

(iv) Declarator that no work in connection with the construction of a golf course on the machair by which the crofters are deprived or to be deprived of rights conferred on them by the 1993 Act should be undertaken by the respondents or anyone on their behalf unless and until such agreement is approved by this Court, or is expressly authorised by the grazings regulations or otherwise appropriately authorised.

[3] Both parties having taken preliminary pleas, a diet of debate was heard at Edinburgh on 22nd and 23rd January 2009 when the applicants were represented by Iain Maclean, advocate, and the respondents by Sir Crispin Agnew of Lochnaw QC.

Background

[4] Before we narrate the submissions made at debate it may be helpful, in terms of setting these in context, to say something of the factual background.

[5] As one of several such schemes designed to meet the land hunger of the time and, more specifically, to provide holdings for the families of men returning from the Great War, the township of Askernish was formed by the Board of Agriculture for Scotland as a land settlement scheme in 1922. It comprises 11 crofts created from the former farm of Askernish, then part of the estate of Lady Gordon Cathcart who owned most of South Uist at that time. Although the formal order confirming the scheme was not signed until 15th February 1923, the terms of the scheme had in fact been negotiated by or in 1922 and in what follows we will refer to the scheme as “the 1922 Scheme” as parties do in their pleadings.

[6] The formal order of 15th February 1923 (hereinafter referred to as “the Order” or “the 1923 Order”) detailed the extent of the new holdings and of the associated areas of common grazings. The common grazings are divided into two parts, an area of common pasture, extending to some 547 acres, situated to the east of the township and an area of common machair, extending to some 437 acres, to the west. It is with that area of common machair that the present application is concerned. Said order was in effect approved by this Court, at least in so far as holdings 1, 5, 6, 7, 8, 10 and 11 are concerned, on 16th January 1924 when it directed registration of the names of the tenants of these holdings and details of their entitlement in the Landholders Holdings Book.

[7] A schedule to the 1923 Order contains the Conditions of Let of the new holdings, including (at Part VIII, paragraph (e)) a reservation to the landlord of the following right:-

“The right to allow to such person or persons as she may elect the use of the machair lands for the purpose of playing golf free of rent or charge of any description and on such terms as she may see proper, with right to have and keep a Golf House thereon, and should any question arise as to the extent or scope of this reservation or in any other manner of way as to the use of said reserved right between the landholders and any other person or person, the same shall be determined by the Scottish Land Court, whose decision shall be final and not subject to review in any manner of way.”

[8] Although much of the history of the playing of golf on the machair, both before and since 1923, is disputed between the parties to this application, we think it is uncontroversial to say that golf has been played there since the late nineteenth century. The location and layout of the course has apparently changed on more than one occasion during that time but in the years immediately prior to 2006 it took the form of a nine hole course situated mainly within the dunes area of the machair with each hole having two tee positions in order to provide variety for a second nine. There has for some time been an Askernish Golf Club, its present incarnation being in the form of a community interest company closely associated with the respondents

[9] Since around 2005 South Uist Estates Limited has been a community owned company, the company’s shares then having been the subject of an agreed community buy-out. As we have seen, the company now trades under the name “Storas Uibhist” and it has wide-ranging plans for the development of the land it owns.

[10] In 2006, shortly after this buy-out, the profile of golf at Askernish was dramatically heightened when news got about in the golfing world that the original course there may have been designed by Old Tom Morris, a legendary golfer and golf course designer, and attempts began to discover its layout. Enthused by the resultant potential for the development of the course as an economic asset, the respondents and Askernish Golf Club have, since 2006, created an 18 hole course although the extent to which, if at all, it replicates the original course is a matter of dispute.

[11] It remains to be seen whether the excitement generated among the golfing fraternity by these developments translates into significantly increased numbers of people wishing to play Askernish but in terms of the arrangement between them, any profits made by Askernish Golf Club will be remitted to the respondents for re-investment in the community.

[12] The 1922 Scheme provided for the setting up of a Committee of Management to administer the common grazings. It set out the responsibilities and powers of such a committee. The present applicants include the Chairman, Clerk and members of the current committee.

[13] It is the position of the applicants that certain of their rights as grazings shareholders have been prejudiced by these recent developments involving the golf course and that certain of the powers and responsibilities of the Management Committee have been subverted by the way in which they have been carried out.

Legislation, authorities and texts

Legislation

Crofters Holdings (Scotland) Act 1886, sec 1
Small Landholders (Scotland) Act 1911, sec 7
Land Settlement (Scotland) Act 1919, sec 9
Crofters (Scotland) Act 1993, secs 3(4), 5(3), 20, 21, 47-49 and Schedule 2, paras 9, 11

Cases

Admiralty v Burns 1910 S.C. 531
Carstairs v Spence 1924 S.C. 380
Crofters Commission v Arran Limited 1997 S.L.T. (Land Ct.) 22
Crofters Commission v The Scottish Ministers 2002 S.L.T. (Land Ct.) 19
Crofters Sharing in the Keil Common Grazings v MacColl 1986 SLCR 142
Duke of Sutherland v Matheson 1917 SLCR 13
Fraser v The Secretary of State for Scotland and Ors 1959 S.L.T. (Notes) 36
Guthrie v Bowman (No. 1) 1998 S.L.T. (Land Ct.) 5
Hitchcock v Tenants of Northton, Harris 1942 SLCR 13
MacDougall v The Secretary of State for Scotland 1993 SLCR 126
MacLean v Lord Lovat 1922 SLCR 3
Neish v North Talisker Grazings Committee 1968 S.L.T. (Land Ct.) 4
North Scorrybreck Common Grazings Committee v
Board of Agriculture for Scotland and Another 1929 SLCR 3
Palmer’s Trustees v Brown 1979 S.L.T. 128
Possfund Custodial Trustee Limited v Kwik-fit
Properties Limited [2008] CSIH 65
Shinness Common Grazings Committee v Beldam 1936 SLCR 69
Stornoway Trust v Mackay 1989 S.L.T. (Land Ct.) 36
Strathearn v MacColl 1992 S.C. 339
Sutherland v Sutherland 1984 S.L.T. (Land Ct.) 22
The Shawsrigg Fireclay and Enamelling Company
Limited v The Larkhall Collieries Limited (1903) 5 F 1131
Trustees of the Tenth Duke of Argyll v
Crofters sharing in Vaul Common Grazings 1995 S.L.T. (Land Ct.) 51
Trustees of the Tenth Duke of Argyll v MacCormick 1991 S.L.T. 900

Texts

Agnew, Crofting Law
Bell, Principles of the Law of Scotland, 10th ed
Gloag, The Law of Contract, 2nd ed
MacCuish & Flyn, Crofting Law
Rankine, A Treatise on the Law of Leases in Scotland, 3rd ed
Stair Memorial Encyclopaedia Vol 12, para 1131
Traynor, Latin Maxims
Walker, Prescription and Limitation Act, 5th ed

Submissions

(i) For the respondents

[14] Sir Crispin opened his submissions by explaining that although the debate was technically on parties’ preliminary pleas, it was in fact to a large extent concerned with the scope of the reservation for the playing of golf contained in the 1923 Order. Both parties wished the Court to fix the parameters of that reservation and, that done, it was hoped that parties may be able to come to an agreement, which failing the scope of a subsequent proof before answer would at least have been defined.

[15] Turning to the law, it must be remembered that crofting tenure was basically a relationship of landlord and tenant as parties to a lease (Sutherland v Sutherland). Reservations were common in leases.

[16] Reference was made to productions 13 and 14, respectively letters from Messrs Skene Edwards & Garson, Lady Cathcart’s solicitors, to her Factor dated 17th June and to the Board of Agriculture for Scotland dated 7th July, 1920. The former referred to a provision in the existing lease of Askernish farm reserving the site of the golf club house and right of such club or individuals as the landlord may permit to play golf on the machair, to vary the course, “and to cut and roll greens etc.”. It foresaw no difficulty in inserting that provision into the new agreements although acknowledging that it may be difficult to enforce. It was the writers’ impression that very little golf had been played at Askernish for some years but that the course had possibilities and, were South Uist easier to reach, an enterprising company might be found to take over Askernish House and the golf course and run them on commercial lines. The latter referred to the Board undertaking to insert a provision in the land settlement scheme which would allow golf to be played on the machair “as heretofore”.

[17] Sir Crispin then took us through the relevant parts of the 1923 Order (of which production 23A is a copy) by which the Board of Agriculture had confirmed the 1922 Scheme. The Second Schedule to the Order contained the Conditions of Let. These had subsequently been accepted by individual letters signed by the landholders. He mentioned particularly the souming specified at paragraph 3, the provisions relating to a Committee of Management, and, of course, the reservation for the playing of golf at VIII(e) on which the whole application centres. The reference in that reservation to the playing of golf being “free of rent or charge of any description” meant rent or charge payable to the landholders.

[18] The 1922 Scheme had been a statutory scheme, made under threat of compulsory purchase, and undertaken by the Board of Agriculture under sec 7 of the Small Landholders (Scotland) Act 1911 (“the 1911 Act”) as amended by sec 9 of the Land Settlement (Scotland) Act 1919 (“the 1919 Act”). In the event of ambiguity, enactments which took away rights or imposed burdens should be strictly construed; Stair Encyclopaedia Vol 12 para 1131. Sec 7(8)(a) of the 1911 Act, as amended, provided that the Board could constitute new holdings “upon such terms and conditions not inconsistent with the Landholders Acts as the Board think reasonable”. These terms and conditions must, logically, be additional to the statutory conditions which existed when that provision was enacted. Since the 1922 Scheme had been prepared with a view to compulsory purchase, if necessary, it was understandable that the Board would impose conditions for the benefit of the landlord or which were designed to preserve valuable rights of the landlord even if these rights might impinge on crofting rights or vary or add to statutory rights. These conditions were additional to the statutory conditions which applied in 1922, which were those contained in the Crofters (Scotland) Act 1886 as amended by the 1911 Act. The current conditions were contained in Schedule 2 to the 1993 Act.

[19] In Elliot v Mackay (at page 7G)the Land Court had regarded a condition in a scheme for the enlargement of a common grazings, to the effect that the grazing had to be managed as a sheep stock club, as a quasi-statutory condition which the landholders had to observe on pain of risk of removal because it had been approved by the Land Court under sec 1(5) of the 1886 Act (as amended by the 1911 Act). The equivalent of sec 1(5) of the 1886 Act was now condition 9 of Schedule 2 of the 1993 Act which is in the following terms:-

“The crofter shall not violate any written condition signed by him for the protection of the interest of the landlord or of neighbouring crofters which is legally applicable to the croft and which the Land Court shall find to be reasonable.”

In the present case, the golfing reservation was a written condition for the protection of the interest of the landlord and by its order of 16th January 1924 the Land Court had found it to be reasonable.

[20] Sir Crispin then turned to the nature of crofters’ rights in common grazings. Such rights, he submitted, had attributes similar to the legal attributes of a servitude of grazing or pasturage. The landowner could use the land which was subject to the grazing rights in any manner that did not substantially interfere with these rights. The crofters’ rights were limited to a right to graze (sometimes with the addition of rights to take peat or, as here, crop areas of the grazings); Crofters Commission v Arran Ltd, Crofters Commission v The Scottish Ministers. They were akin to the rights of a holder of a servitude of pasturage; Crofters Commission v Arran Ltd. page 23C. They were “not in law equivalent to a right to use the land as if the land was let to the shareholders” (Crofters Commission v The Scottish Ministers, page 23L).

[21] In Crofters Commission v The Scottish Ministers the Court had said (at page 23C) that its decision in the Arran case- that common grazing rights were essentially based on rights of pasturage and not on a common tenancy - may be of little practical effect where the land in question had no other practical agricultural purpose except grazing. Where there were other purposes to which the land could be put, however, one had to balance the shareholders’ grazing rights against the landowner’s right to use the land for these other purposes. In deciding the extent of a grazing right in that situation one could have regard to the law relating to servitudes of grazing and the law relating to common pasturage; Neish v North Talisker Grazings Committee at page 6, where the Land Court had looked at the grazing right in the context of common pasturage and servitudes of pasturage. Reference was made to Bell’s Principles at paragraphs 987 and 988, showing how the rights of dominant and servient tenements were to be balanced in the servitude situation.

[22] The effect of all this was that the landowner could use the land for any other purpose provided that it did not affect the grazing rights and left sufficient grass, or space for cropping where cropping was allowed, to satisfy the grazing and cropping rights of the shareholders. By way of illustration, if the aggregate of the souming came to 50 livestock units and there was in fact capacity on the common grazings for 60, then the landlord could use these surplus units. Equally, however, he could use an area of land corresponding to that spare capacity for other purposes. Asked by the Court as to whether that meant that, assuming the existence of the requisite spare capacity, the respondents here could construct a golf course even if the 1923 reservation had not existed, Sir Crispin said that it did; all the 1923 Reservation did was make the position clear. Elaborating on that, where there was spare capacity the landlord could use that capacity in such ways as he wanted but where there was a specific reservation the landowner was entitled to exercise that reservation whether or not there was spare capacity.

[23] Bell’s Principles at paragraph 1013 was authority for the proposition that in the context of a servitude right of pasturage the servient proprietor could restrict the dominant proprietor to a part of the land in question as long as doing so was not detrimental to the servitude. Although the context of the case (in particular the extent to which, if at all, it was dealing with crofting rights in common grazings rather than servitude rights) was not clear from the report, the comments of Lord Cameron in Fraser v The Secretary of State for Scotland and Ors were to the same effect. In the present case these authorities showed that the respondents could (a) exclude the shareholders in the common grazings from certain parts of the common grazings (e.g. for the purposes of protecting greens), (b) move the golf course from one part of the machair to another, and (c), more generally, make use of the common grazings for their own purposes, all of these subject only to the proviso that enough grass was left to satisfy the souming, which was the measure of the shareholders’ rights. In the present case the souming would have been fixed in the knowledge of the golfing reservation.

[24] Sir Crispin then took us to two cases involving golf being played on common grazings; Trustees of the Tenth Duke of Argyll v Vaul Common Grazings and Duke of Sutherland v Matheson. That there were such cases showed that in general a golfing reservation was not inconsistent with grazing rights. The former case had been wrongly decided in so far as holding that the consent of the Court was required to the agreement permitting golf. However, the argument he was advancing in the present case had not been advanced in the Vaul case and, in any event, the two cases could be distinguished on the basis of the existence of the specific reservation in the present case. Without prejudice to the argument being advanced in this case as to the landowners’ underlying rights, the existence of the 1923 reservation made clear that in this case neither the consent of the Land Court under sec 5(3) of the 1993 Act nor the consent of the crofters was required. In the Duke of Sutherland case, in which land had been resumed for golfing purposes, it could be seen that resumption was necessary because what was being proposed would impact on grazings rights and provision was made to give appropriate compensation.

[25] In the present case the landowners and those authorised by them were entitled to exercise the reserved right in any manner they decided provided it allowed the crofters’ grazing rights to be maintained. The right to play golf could be used or not used from time to time and, likewise, the level of its use could fluctuate; that level could be increased at any time provided it did not substantially or materially interfere with the grazing rights.

[26] The case of Strathearn v MacColl showed that a landlord who was exercising a statutory reservation could in fact go further than that and exercise his right even when doing so impinged upon the shareholders’ exercise of their rights. What was said in that case (in the first full paragraph at page 343) was consistent with the position relating to grazing servitudes. The case concerned exploitation of minerals under the landlord’s reserved rights in terms of what is now paragraph 11 of Schedule 2 to the 1993 Act. Exercise of such reserved rights is fenced about with a condition for payment of compensation for damage done. Sir Crispin submitted that in the present case the part of the 1923 reservation which reads “should any question arise as to the extent or scope of this reservation or in any other manner of way as to the use of the said reserved right … the same shall be determined by the Scottish Land Court” [emphasis added] was wide enough for the Land Court to provide for compensation in this case on a similar basis to that provided for in paragraph 11.

[27] The court in that case had been concerned with a statutory reservation. The court had held that the landowner was entitled to pursue the excavation of minerals even although the resultant depletion of grazing meant that the crofter had to buy in more feed for his animals. It had said (at page 343) that exercise of any of the statutorily reserved rights of a landlord would be challengeable only if it rendered the continuation of crofting tenure impossible. Here we were concerned with a quasi-statutory reservation and the same approach should apply. In the present case, therefore, even if the respondents exercised their rights under the 1923 reservation in a way which impinged to some extent on the shareholders’ grazing rights they were entitled to go on doing so.

[28] Turning to the scope of the 1923 reservation, it must include the right to maintain a golf course on the machair, to mow grass, to make and from time to time move tees, greens, bunkers and fairways, to redesign and re-lay the course, to cut and use turf for these purposes, subject only to allowing crofting tenure to be maintained. Such rights had been explicitly enumerated by the Court in the case of Duke of Sutherland v Matheson (at page 15) as rights included in the right to make and maintain a golf course and they must be taken as implied in the present case.

[29] It was the respondents’ position that nothing done by the Askernish Golf Club to date interfered to any significant extent with the shareholders’ rights and that everything which had been done came within the scope of the 1923 reservation but they acknowledged that whether or not that was so may be a matter for proof.

[30] Sir Crispin then turned to the relevancy of the applicants’ pleadings.

[31] Crave 1 was irrelevant and should be repelled because the original constitution of these crofts specifically reserved to the landlord the right to play golf. The 1923 reservation was contained in the Conditions of Let signed by the individual crofters. In these circumstances it was irrelevant whether mention was made of it in the Grazings Regulations, the purpose of which was to regulate the management and use of the grazings by the crofters inter se (secs 48(1)(c) and 49(2) of the 1993 Act). Such Regulations could not regulate the relationship between the landlord and the crofters. Grazings regulations could certainly not regulate the landlord’s use of his statutory rights and the same should apply here where we were dealing with a quasi-statutory reserved right which was fenced about with the condition contained in paragraph 9 of Schedule 2, preventing the crofter from violating any written condition signed by him for protection of the landlord’s interest. The only circumstance in which landlords became subject to grazings regulations was where they had grazing rights in the common grazings themselves, when, by virtue of sec 47(10) of the 1993 Act, their grazing share became regulated by the regulations.

[32] The case of North Scorrybreck Common Grazings Committee v Board of Agriculture suggested that in the preparation of grazings regulations reserved rights should be kept in view. It supported the view that in this case regard should have been had to the golfing reservation when the grazings regulations were promulgated. That would have been the better course but the fact that the regulations were silent as to the reservation did not matter.

[33] Likewise it was irrelevant that no mention was made of the reservation in the fixing of fair rents. If, at the time of fixing of fair rents, the crofters were not complaining that they could not graze their soumings it would not have been a relevant issue.

[34] Crave 2 was accepted as being relevant. It was the respondents’ position that the Land Court could determine the extent and scope of the reservation as a matter of law. There may have to be a proof before answer to determine whether or not what the Golf Club, authorised by the respondents, had done fell within that scope. Our determination on the legal scope and effect of the reservation would focus the scope of any such proof.

[35] Craves 3 and 4 were irrelevant, again because of the existence of the reservation in the original constitution of the crofts. Any rights the crofters had under the 1993 Act were subject to the reservation. The playing of golf on the machair did not, therefore, involve an agreement to which sec 5(3) of the 1993 Act applied. The only thing the court was properly concerned with in this case was the question directed to it in the reservation itself: i.e. “the extent or scope of [the] reservation”.

[36] Sir Crispin then dealt with particular passages of the applicants’ averments. He prefaced his remarks by, first, reiterating that the 1923 reservation was the equivalent of a statutory condition under Schedule 2 of the 1993 Act (Elliot v Mackay) and that the landlords, and those authorised by them, were accordingly entitled to exercise the right in any way they wanted provided that crofting tenure was maintained (Strathearn v MacColl) and, secondly, submitting that the reserved right was the equivalent of a res merae facultatis in that it could be exercised at the pleasure of the holder and at any level of use provided use did not exceed its limits (Traynor’s Latin Maxims; Walker, Prescription and Limitation Act atpage 78; Carstairs v Spence at page 387). The latter point was being made to counter the suggestion in the applicants’ pleadings that the extent of the reservation was to be measured by the extent of use of the golf course in 1922. One golfer a week in 1922 did not prevent 22 golfers a week now, nor any other number provided there was no substantial impairment of the shareholders’ grazing rights.

[37] Although attacking the relevancy of the following passages, Sir Crispin did not go as far as to move that they should be refused probation. We shall therefore content ourselves with merely noting the passages and, briefly, his criticisms of them. They are as follows:-

(a) Averments in Statement of Fact 4 that the holdings became crofts in 1955 and that pre-1955 conditions did not survive beyond that. Since Mr Maclean did not press this argument when he came to speak (see paras [65-66] below) we need not narrate Sir Crispin’s submissions on this.

(b) Averments in Statement of Fact 6 anent golfing with the agreement of the crofters, the fact that the reservation was not dealt with at rent review, and that the arrangements for playing golf were voluntary on the part of the crofters. It was accepted by the respondents that agreement as to the way forward would be preferable but in the absence of agreement the respondents were entitled to stand on their rights.

(c) Averments in Statement of Fact 8 re the activities of Askernish Golf Club. These were irrelevant because the actions of the Golf Club, with authority of the respondents, fell within the scope of the reservation.

(d) Statements of Fact 9, 10 and 11 were irrelevant because what was being done by the Golf Club was not inconsistent with the crofters’ rights in the common grazings, nor with the Grazings Regulations. The Regulations could not, and did not purport to, control the activities of the landlords in relation to their reserved rights.

(e) In respect of the averments at (b), (c) and (d) in Statement of Fact 12, the respondents were entitled to exercise their reserved golfing rights without resort to amendment of the Grazings Regulations, resumption or a Scheme of Development. At a later stage we raised with Sir Crispin where resumption fitted into the scheme of rights he was describing and it is convenient to narrate his response here. Resumption, he said, was necessary if the landowner wanted the land free of the grazing right. If a landowner was, on the other hand, prepared to live with the risk of his use of the land being challenged on the basis of the grazing right and if what he wanted to do with the land did not interfere substantially with the grazing right, resumption was unnecessary.

(f) The applicants’ averments generally were irrelevant because the real issue in relation to the reservation was whether exercise of that right substantially interfered with the crofters’ rights in the common grazing to the extent that crofting tenure could not be maintained. To the extent that the applicants averred that golfing activities interfered with crofting rights these averments were wholly lacking in specification and did not give fair notice of the applicants’ case.

[38] Although he was not moving for excision of these averments, the court may wish to comment upon them so that parties could see, with a view to further procedure, what significance the court attached to them.

[39] As to what that further procedure should be, it was accepted by both sides that a proof before answer would probably be required. Both parties would probably have to adjust following our judgement and six weeks should be allowed for that purpose with a hearing by way of proof before answer in South Uist as soon as possible thereafter. The adjustment period would also give an opportunity for discussion and negotiation in the light of what the court said as to the scope of the reservation and both parties hoped that matters may in fact be resolved at that stage. Failing that, however, the respondents were anxious for an early evidential hearing because their plans for future golf-related developments depended on the outcome.

[40] Finally, Sir Crispin moved for certification of the cause as suitable for the employment of senior counsel because of the difficulty of the relevant law and the importance of the matter to the respondents in terms of their development plans as a community landlord. Otherwise, expenses should be reserved for written submissions.

(ii) For the applicants

[41] Mr Maclean opened by saying that he was content for his second plea-in-law to be reserved meantime. There was a practical reason, however, for seeking to insist on his third plea. That plea is directed at “the Landlord’s averments about the economic and other benefits to the wider community of the extension and development of golf [on Askernish machair]”. The relevant averments are at Answer 9, and read as follows:-

“Further explained and averred that this development is for the good of the community. There is a renewed interest in the courses designed by Old Tom Morris. It is reasonably expected that the course will attract golfers from round the world and that it will be included on the Old Tom Morris golfing tours. It is anticipated that the course might attract in excess of 500 golfers with their families per annum in the period Easter to October. Green fees are likely to be £50 per two rounds. An average golfer spends up to 15 times his green fees within the community. It is estimated that by 2112 visitors will generate about £120,000 per annum in green fees [about £40,000 profit to be passed to the landlords] and spend about £960,000 within the community. It is estimated that the golf club will employ 3 full time green keepers and 2 part time with about twenty casual caddies and staff to manage the small club house.”

These averments were no doubt of value to the respondents as propaganda directed to the wider world but they were irrelevant to the real issue in the case. If they were allowed to go to proof the applicants may feel oblige to lead evidence to refute them. That would probably take the form of expert evidence and, if at the end of the day these averments were found to be irrelevant, the expense of leading that evidence would have been wasted.

[42] Before advancing the applicants’ case, Mr Maclean dealt with Sir Crispin’s criticisms of the craves of the application. The reason the case was before the court was that the crofter applicants were invoking the jurisdiction apparently conferred on the Court by the 1923 reservation. It was clear that, in terms of the reservation, a question had arisen about its “extent or scope”. The terms of the applicants’ craves might be framed in a better way but they succeeded to a reasonable extent in focusing what the issues here really were. He would be prepared to amend the present terms if the court felt that was necessary but he saw no purpose in striking out the craves under attack at this stage. As Sir Crispin had said, adjustment was going to be necessary in any event and he, Mr Maclean, would undertake to consider during adjustment how the issues may be better focused. In any event the body of the applicants’ pleadings made clear what the real questions here were; they were set out in detail in Statement of Fact 13.

[43] So far as Sir Crispin’s comments on particular passages of the applicants’ pleadings were concerned, Sir Crispin was right not to press his attack at this stage. With specific reference to the applicants’ averments as to the extent to which, and the ways in which, the respondents’ activities impinged on the applicants’ grazing rights, that was always going to be a question of degree and at this stage enough had been averred to justify enquiry.

[44] Lastly, by way of preliminaries, he entirely agreed with Sir Crispin’s view of the purpose of the debate: it was to establish for the parties’ future reference what was the legal basis upon which the use of the machair for golf presently rests and, secondly, how the 1923 reservation was to be construed – what, precisely, was the measure of the respondents’ right and how did it impact on the crofters’ rights in the common grazings?

[45] The respondents said that their rights trumped the grazing rights and that they were entitled to develop the golf course howsoever they liked without reference to the crofters or the impact of what they did on the exercise of crofters’ rights in the common grazings. The crofters’ position was that the golfing reservation did not fall to be construed so as to override how the crofters used the common grazings. On a proper construction what it anticipated and provided for was a situation in which, so far as possible, the parties’ rights would co-exist and would be compatible with each other in their exercise. The landlords’ invitees would be able to play golf on the course to a certain level while the landholders used it for grazing and cropping. That is how the scheme had operated for over 80 years under a private landlord and it was a genuine cause of sadness that it was on a transition to a community landlord that this arrangement had broken down.

[46] Mr Maclean then reviewed how the present legal position had come about. Section 9 of the 1919 Act had substituted a new section 7(8) in the 1911 Act which empowered the Board of Agriculture to prepare a scheme for the constitution of holdings to be occupied by new holders “upon such terms and conditions not inconsistent with the Landholders Acts as the Board [thought] reasonable”. Subsection (11) of the new section 7 made provision for the payment of compensation to the landlord where he suffered injury as a result of the constitution of new holdings.

[47] Sir Crispin had suggested that any ambiguity in the wording of the 1923 reservation should be resolved in favour of the landlord on the basis of the passage referred to from the Stair Encyclopaedia. That passage, however, related to a canon of purely statutory construction. It had no relevance to the construction of the terms and conditions of let in the present scheme. These fell to be construed as would the terms and conditions of any lease. Crofting tenure, while sui generis in some ways, ultimately was a matter of leasehold (Sutherland v Sutherland at page 24B). One could not create a new tenancy while reserving the legal right to occupation to oneself.

[48] The approach we should take was as follows:

(i) The conditions of let must be construed as a whole; Possfund Custodial Trustee Ltd v Kwikfit Properties Ltd. The scheme of the present lease should be approached in such a way that its various provisions could work together.

(ii) Doubtful words must be read with reference to the context and to the general intent and purpose of the instrument under construction. In the present case the golfing reservation had to be construed with reference to the subject matter of the leases and the rights of the tenants to use the machair for grazing and cropping purposes; Admiralty v Burns (per Lord Kinnear at pages 536 to 537, Lord Salvesen at page 542). In the present case, putting it colloquially, the golfing reservation tail could not wag the common grazing dog. What was conferred on the crofters was a bundle of rights enabling them to graze and crop the common machair and the golfing reservation could not be construed in such a way that golf took precedence over the crofting activity.

(iii) A term or condition which was inconsistent with the Landholders Acts would be ultra vires and void ab initio and, following from that, the terms and conditions of the crofters’ occupation of the common machair must be construed so as to be consistent with the Landholders Acts and an interpretation which led to inconsistency with these Acts could not be maintained. The respondents’ approach would lead to such incompatibility. It would lead to the denial of the crofters’ rights of grazing and cropping part of the common machair on a permanent basis. If the landowners’ rights had primacy over the crofters’ rights that would mean that crofters would not be entitled to apply for apportionments from the common grazings and the Grazings Committee would be unable to exercise their statutory duties under the 1993 Act. Under the 1922 Scheme responsibility for administration of the machair had not been left to the landlords but had been conferred upon a Management Committee. In any situation of conflict the crofters’ rights must prevail.

[49] The applicants entirely accepted that the golfing reservation must be given practical content but there were “golf courses and golf courses”. There was a world of difference between a rough and ready holiday course and the Old Course at St Andrews.

[50] Sir Crispin had argued that the references in the craves of the application to the current Grazings Regulations were irrelevant but in fact they were very relevant; McCuish & Flyn paragraphs 8.01 to 8.04. Section 49(8) of the 1993 Act provided that common grazings regulations had effect notwithstanding anything contrary thereto or inconsistent therewith contained in conditions of let. The present regulations applying to Askernish had been promulgated in 1996. They incorporated some of the Conditions of Let (for example Regulations 22 to 24 dealing with peat cutting, use of seaweed and the management and preservation of the machair). They contained powers and duties which the Grazings Committee were entitled to exercise and, once again, a construction which prevented them from doing so would not be compatible with the Landholders Acts. Section 49(8) of the 1993 Act was entirely clear in its terms but even in the context of the 1919 Act it had never been the case that conditions of let remained immutable for all time: they could change, for example, by agreement or acquiescence (Shinness Common Grazings Committee v Beldam). The curiosity about the present case was that when the Grazings Regulations had been promulgated the landlords had said nothing about the golfing reservation. The Grazings Regulations set out the rules for the management and use of the common grazings and superseded the Conditions of Let in the 1922 Scheme and conferred power to control management and use of the common grazings on the Grazings Committee. It could not be, therefore, that the landlords were entitled unilaterally to carry out actions which would impinge on the crofters’ rights as to management and use of the grazings.

[51] Against that background, what was necessary where the landlords had proposals to make under reference to the golfing reservation was that they either sought the agreement of the crofters – which was much the preferred option from the crofters’ point of view – or resumption. What the landlords could not do was simply act unilaterally in a way which cut across or, almost literally, cut the ground from under the crofters’ rights in the common machair. He was not saying that the Grazings Regulations had brought the golfing reservation to an end. The point was that the existence of the Regulations was another factor which militated against the construction of the reservation in terms of which the landlords could, as had been submitted, do almost anything they wished on the common machair, even to the extent of preventing the crofters from exploiting their individual soumings to the full and that without reference to the crofters themselves. It was another factor tending to show why the landlords’ construction of the reservation was inconsistent with the Landholders Acts.

[52] Mr Maclean then examined the terms of the reservations contained in the Conditions of Let. There were six in all. The first two were not really reservations at all, being more of the character of exclusions from the lease. The other three were more conventional in their content than the golfing reservation. Mr Maclean made passing reference to the fact that the golfing reservation did not use the term “landlord” but “she”, that is to say Lady Gordon Cathcart. However, at a later stage in his submission he accepted that the benefit of the reservation had transmitted to successive landlords deriving their title from her.

[53] In Mr Maclean’s submission the reference in the reservation to “playing golf free of rent or charge of any description” must be construed as meaning that the playing of golf was free of payment by the landlord to the landholders. If that was the case, it was interesting that it had had to be spelled out because that demonstrated that this was a situation in which the landlord had ceded occupation of the machair to the landholders and had not retained any right of occupancy to herself. Had she retained such a right of occupation it would not have been necessary to make it explicit that she did not have to pay the landholders.

[54] Sir Crispin had submitted, under reference to the case of Elliott v MacKay, that the golfing reservation was a quasi-statutory condition. It was not clear what “quasi” meant in that context. Paragraph 11 of Schedule 2 to the 1993 Act obliged crofters to permit landlords, or persons authorised by landlords, to enter upon the land for the exercise of the reserved rights listed there. These were statutory reservations of rights to landlords who had otherwise yielded exclusive possession of the common grazings. That list of rights was a comprehensive list of the landlord’s reserved rights. The cases of Crofters Sharing in the Keil Common Grazings v MacColl and Hitchcock v Tenants of Northton, Harris mentioned in Agnew at page 166 fn 19 illustrated how the statutory reservations worked. They were statutory rights but subject to compensation provisions which is what justified the wide scope of the reserved rights. What the statutory reservations did was reserve certain rights to landlords over land occupation of which had otherwise been surrendered to crofters. Of the statutory reservations the one most similar to the present reservation was the right to hunt and shoot because it was expected to co-exist and to be exercised in parallel with the crofters’ right to use and occupy the land for crofting purposes. The statutory reservation in favour of the landlord did not supplant those rights: rather it overlaid them. That scheme of things at least implied that parties would respect each other’s rights to the full extent if possible. Should exercise of the respective rights become incompatible, the only solution was resumption. The present reservation contained no reservation of a right to occupancy.

[55] There was a clear difference between the present reservation and the statutory reservations. Under reference to Trustees of the Tenth Duke of Argyll v MacCormick at page 903 H to J, compensation was payable for damage done in the exercise of statutory reserved rights. In Strathern v MacColl the mining reservation had been unrestricted but the damage done had to be compensated. In the present case there was no compensation provision for damage done in the exercise of the golfing reservation. The existence of compensation provisions in the statutory scheme must impact on how conventional reservations were to be construed. The requirement for compensation was the quid pro quo of the minerals reservation: because there was no compensation provision in the present reservation, the inference must be that the right to play golf must be exercised in such a way as would not materially interfere with the exercise by the crofters of their rights in the machair. By “materially interfere” he meant something different from the content given to that expression by Sir Crispin; he meant interference which prevented the crofters from exercising their rights in the common machair to the extent contemplated in the original grant. Any such interference would be legally challengeable. The point was, again, that parties’ different rights in the same piece of ground had to be exercised alongside one another, not that one should supplant or “trump” the other. Nothing in the Conditions of Let supported the interpretation that the golfers’ right took precedence; indeed it was the other way around, because the primary purpose of these leases of new holdings and common grazings rights had been the crofting purpose and not the golfing purpose.

[56] The case of Dunbeath Estate Ltd v Henderson and Others was an example of the Land Court declining resumption where the landlords’ purposes were compatible with the exercise of crofters’ rights. Mr Maclean did not seek to derive any principle from that case but where there were conflicting interests in a piece of ground between landlord and tenant it must surely always be preferable to see a situation where an accommodation was reached between parties rather than the landlord having to resort to the sledge hammer of resumption. So far as the present case was concerned, what had been envisaged when the 1922 Scheme was devised had been that the landholders would be able to exercise to the full the rights over the common machair which were being conferred on them. After all, what the Scheme had all been about was the provision of land for men returning from the First World War. It could not have been the intention that the crofters could not exercise their rights to the full extent of their soumings. To suggest otherwise was ridiculous in that context. The land was being provided primarily for the feeding of the settlers, not for the playing of golf.

[57] Mr Maclean then turned to Sir Crispin’s submission that any theoretical surplus grazing could be utilised by the landowner himself. On the facts of the present case there could be no such surplus. The Scheme created 11 new holdings and each was given a one-eleventh share in the common grazings. In relation to the common machair the landholders’ rights extended beyond grazing to cropping.

[58] The common machair here was held by the crofters as a common grazing and as such was subject to the provisions of the 1993 Act anent common grazings. This was a case of crofters having shares in a common grazings proper, as contrasted with having a right of grazing unconnected with a crofting tenancy. The distinctions discussed in such detail in the Arran Limited and Scottish Ministers cases were relevant here because the present case was one in which the common machair had been divided up into eleven shares and all eleven shares distributed. There could therefore be no share remaining. If the respondents were to seek to authorise anyone now to put sheep or cattle on the machair or to crop it or to do so themselves they could be interdicted from doing so. All eleven shares having been distributed there was nothing left in the landlords’ hands. It was reasonable to assume that the soumings referred to in the original Conditions of Let represented a fair estimation of the grazing potential of the machair at that time. In servitude cases it may be that surplus grazing capacity could be “soaked up” by another party but under a statutory common grazings scheme, where the grazings had been divided into shares and all the shares had been given out, there could be no question of spare capacity. The soumings fell to be regulated by the crofters inter se; section 49(2)(d) of the 1993 Act. Changes in the souming could not prejudice the landlord because the landlord had already signed away all of the grazings at the time of the original grant and no reserved right remained to the landlord which could be adversely affected by a change in the souming. It was well established that a landlord could not derogate from the grant made in a lease; Rankine page 213, Gloag page 296, Huber v Ross, Shawsriggs Ltd v The Larkhall Collieries Ltd, Palmer’s Trustees v Brown.

[59] The notion that landlords in a common grazing scheme in which all of the shares had been allocated could subsequently grant an additional share to someone else would cause consternation in the crofting communities and fly in the face of all conventional wisdom. The authorities dealing with servitudes of grazing and res merae facultatis were not relevant: we were concerned with the law of leases.

[60] Mr Maclean then posed the question of the role of resumption if the respondents’ argument was correct. If the respondents were correct, he submitted, the power to resume would rarely be needed and developments such as wind farms on common grazings could have proceeded without resort to resumption.

[61] The correct position had been expressed admirably succinctly by Sir Crispin himself at page 44, footnote 1, of his book, written after this Court’s explication of common grazings in the Arrancase. That footnote contains the following:-

“There is no definition of common grazing. … the distinction between common grazings and grazing rights is that with common grazings the landlord lets the land for the exclusive occupation of the crofters and other graziers in common for grazing, while preserving limited rights to himself, such as the right to extract minerals or cut peats; see Ross v Gilmour’s Trustees 1925 SLCR 53 at 58, where the Land Court distinguished between ‘a let of the land themselves for common grazings’ and what were ‘merely rights in general terms to graze stock’”.

[62] Asked by the Court as to whether his own position meant that a landlord could not do anything on common grazings beyond the exercise of his statutorily reserved rights, apart from resumption, Mr Maclean said that that was certainly his position where, as here, all the shares in the common grazings were allocated to crofts. In that situation the common grazings was in the exclusive occupation of the crofting tenants. That was what most crofters would expect and it was consistent with the powers given for the management and use of common grazings to be regulated by a management committee.

[63] In Duke of Sutherland v Matheson & Others the landlords had been doing what the landlords here were doing; converting a rough and ready holiday golf course into something more sophisticated. It was significant that that case had preceded by only a few years the making of the Scheme in the present case and, said Mr Maclean, it may have been in the minds of the makers of the 1922 Scheme. That would possibly explain why the particular rights to cut fairways and greens etc were not particularised in the 1923 reservation. The Matheson case had been a case where the landlords’ objectives required resumption. A different approach had been taken in the Vaul case. That was a case in which the Land Court had sisted an application for resumption so that parties could consider the competency of the arrangement under which golf was played on the common grazings. That had resulted in a second application made under section 5(3) of the 1993 Act for the consent of the Land Court to that arrangement. The reference in section 5(3) to “any contract or agreement made by a crofter by virtue of which he is deprived of any right conferred on him by [the 1993 Act]” was an echo of the terms of section 7(8) of the 1911 Act, as amended, requiring that holdings on new settlements schemes were to be occupied by new holders “upon such terms and conditions not inconsistent with the Landholders Acts as the Board think reasonable”. These provisions were saying more or less the same thing. Section 5(3) had a long history, originating in section 25 of the Small Landholders and Agricultural Holdings (Scotland) Act 1931. The first question the Land Court had had to deal with had been whether the agreement entered into between the Common Grazings Committee and the Vaul Golf Club involved renunciation by shareholders of any rights over the area of ground covered by the golf course and the Court had taken the view that it did. Similarly, in the present case, if the crofters were to relinquish their statutory rights in order to facilitate the landlords’ proposals any such agreement would have to be approved under section 5(3). The point Mr Maclean was anxious to emphasise on behalf of the applicants was that they were not intent on bringing down or preventing any form of development of the golf course but rather that they should be consulted and have their rights taken account of by the respondents rather than be ignored or walked over.

[64] None of this was to say that the landlords might not be able to secure their objectives by way of resumption but that was not the preferred option of the crofters and in the absence of resumption any development must rest on the crofters’ agreement fortified by the consent of the Court under section 5(3). What the applicants wished to happen was that the land remain in crofting tenure but that an agreement should be reached to which the Court could adhibit its approval. The case of Stornoway Trust v MacKay confirmed that in the absence of resumption the Land Court had to approve any agreement by which the crofters consented to being deprived of any right conferred on them by the 1993 Act.

[65] All of the foregoing depended on the golfing reservation continuing to apply. There was a question as to that which Mr Maclean thought he should bring to the attention of the court albeit he did not think that it was necessarily well founded. It had come to his attention from an article written by Sir Crispin on “The Terms of a Crofting Lease” in the Crofting Law Group newsletter of July 1999. The argument, under reference to the case of MacLean v Lord Lovat, was that “any written lease that might have been in existence prior to the subjects coming within the control of the Crofting or Landholders Acts was superseded by the statutory conditions once the subjects became or were declared to be a croft”. In the present case the holdings had become crofts on the coming into effect of the Crofters (Scotland) Act 1955.

[66] Doubt was cast on that argument, however, by the transitional conditions contained in section 39(5) of the 1955 Act to the effect that, save as expressly provided in the Act, nothing in the Act affected “any Order … agreement … condition imposed … or thing done in the crofting counties or in relation to land therein under any enactment relating to landholders, statutory small tenants or cottars which by virtue of this Act has ceased to apply to the crofting counties or to any land therein, but any such order [etc] … in force at the commencement of this Act shall continue in force …”. These provisions assisted the argument that the 1923 reservation continued in force in the present case.

Response for respondents

[69] Sir Crispin began his remarks by outlining the factual position contended for by the landlords although he accepted that that was a matter for proof. The landlords’ position was that there had been an 18-hole course on the machair in 1922. In the 1930s that had been replaced by a 9-hole course mainly on the croppable area of the machair. That was now being dispensed with in favour of an 18-hole course more or less corresponding to the original course. The new course effectively returned the machair to the same grazing potential as it had had in 1920.

[70] Land let by a landlord to people in common for a specified purpose such as potato land or for housing was still a common grazing: MacDougall v Secretary of State for Scotland. There was accordingly no distinction between common grazings and common machair.

[71] A right in common grazings was a right restricted to the right to graze and, in respect of arable machair, the right to crop. The grazing right was limited by the souming and the cropping right to cropping sufficient for the needs of the croft – sufficient to feed the family and stock. The landlords’ rights include the right to use the land for any other purpose provided it did not substantially or materially derogate from the rights of the crofters and landlords could exclude crofters from certain areas of common grazing provided, again, that the crofters’ rights were not materially or substantially affected.

[72] Even if that was wrong, the same principles would apply to the present golfing reservation because it was a right to allow people to use the machair lands for the purposes of playing golf. That right must include the right to make greens, tees, fairways and use the turf to make the greens. There was no geographical limitation on use of the right but here must be enough grass left for the soumings and enough arable land for the cropping. While that was his primary position he derived support from it from the case of Strathearn v MacColl: for the purposes of his argument in the present case he was understating the principle which emerged from that case.

[73] So far as the non-existence of any compensation provision in the reservation was concerned, the Land Court’s power to resolve any question in relation to the reservation would entitle it to award compensation.

[74] In relation to Mr Maclean’s argument as to all eleven shares having been distributed, one had to ask what the crofters had been granted. They had been granted a one-eleventh share in the common grazings limited by their souming. Sir Crispin quite accepted that generally speaking the soumings take up the whole grass on a common grazing but what shareholders were given was in fact a share which was limited to their souming and if, once one aggregated all the livestock units comprised in individual soumings, the common grazings was capable of supporting more, the landlord would be entitled to use that spare capacity for grazing or an area of land corresponding to the spare capacity for another purpose. That approach was recognised in both the Arran Limited and Scottish Ministers’ cases. The landlord’s obligation was to provide sufficient grazing to satisfy the souming but that the right conferred on the crofter was a grazing right was expressly recognised in the Scottish Ministers case at page 23L in the passage quoted at [20] above.

[75] The applicants’ approach was wrong. The point at which it had gone wrong was in saying that the landlords had ceded possession. Crofters were not entitled to exclusive occupancy of land under common grazings. It might not be necessary for the court to consider these matters but in Sir Crispin’s submission the principles which he had identified applied to the 1923 reservation.

[76] In answer to Mr Maclean’s argument on the construction of the reservation, it had to be remembered that what we were dealing with was an Act which gave powers to the Board of Agriculture to make a scheme depriving landowners of rights and, therefore, insofar as such powers had been exercised here they should be construed contra preferentem; this was a scheme proffered by the Board of Agriculture by which the landlord was to be bound. In a sense it was a lease proffered by the tenants so, on the foregoing principle, if there was ambiguity it should be construed against the tenants.

[77] Under Statutory Condition 9 of Schedule 2 of the 1993 Act a crofter must not contravene any condition applicable to the croft and which the Land Court had found to be reasonable. Therefore, if a crofter frustrated his landlord’s rights the crofter could be removed. The golfing reservation in the present case was such a right and Condition 9, in effect, fenced it with an irritancy. By confirming the Scheme Order of 1923 the Land Court had found the reservation to be reasonable. The result was that the present respondents had a right which was protected by Standard Condition 9.

[78] With reference to Grazing Regulations, what these were concerned to do was to manage the grazing and cropping rights. Section 48(1)(c) of the 1993 Act could only be concerned with managing the use of the grazing rights; if the applicants’ interpretation was taken to its logical conclusion it would give the Grazings Committee control over the exercise of sporting rights over the common grazings, perhaps by confining that exercise to part only of the grazings. The same must apply to the golfing reservation. A landlord’s reservation could not be controlled by the extent of exercise of grazing rights or by Grazings Regulations. What the Grazing Regulations were directed towards was the management and use of the right to graze.

[79] The power in the Grazings Regulations to adjust stock levels did not give the Committee the right to increase the soumings. It was, rather, limited to reducing the soumings, which might be done for management reasons.

[80] So far as Mr Maclean’s argument on the principle of derogation from grant was concerned, Sir Crispin took no issue with the principle which emerged from the cases but the question here was what was the grant? The grant was a grazing right and a limited cropping right burdened by the golfing reservation. That having been the original grant, there had been no derogation from it. For the respondents’ proposals to amount to a derogation from that grant they would have to materially affect the amount of grass available for grazing or land available for cropping. The Scheme did not provide that the crofters were entitled to crop a particular area and that supported Sir Crispin’s view that the landlord was not confined to exercising the golfing reservation in a fixed location: the golf course could be moved around.

[81] With reference to Mr Maclean’s submission in relation to section 5(3) of the 1993 Act, the approval of the Land Court was not required if what was being done fell within the scope of the reservation: only if what was being done was likely to exceed the scope of the reservation would approval be required, because the excess would be depriving crofters of rights.

[82] With reference to Mr Maclean’s attack on the averments relating to the economic benefit of what was proposed, Sir Crispin “more or less” accepted that these averments were not relevant to the task of construing the reservation except to the extent that insofar as the Court is given power to determine the extent and scope of the reservation or any other question arising in any other manner of way as to use of the reserved right that gave the Court an element of discretion when it came to consider the control of use of the reservation and economic benefit to the community may be a relevant consideration in that context. That depended on whether the words “in any other manner of way” in the reservation gave the Court any discretion as to fixing the extent and scope which should be ascribed to the golfing reservation.

[83] With reference to his own attack on the applicants’ craves, that really came back to the relevance of the Grazings Regulations. The provisions of the Grazings Regulations and the fact that nothing was said about the existence of the golfing reservation in fixing fair rents were wholly irrelevant in relation to the task of determining the extent and scope of the reservation. The relevance of the North Scorrybreck case was that it said that Grazing Regulations should have regard to the landlord’s reserved rights. That was indicative of the fact that Grazings Regulations could not control these rights.

[84] As to the desirability of agreement as a means of resolving matters, that, of course, was preferable but, failing agreement, the respondents’ rights were rights which could be exercised without agreement.

[85] Sir Crispin “fundamentally disagreed” with Mr Maclean’s submission that the crofters’ rights must prevail in any situation of conflict. The Grazings Committee had no power to prevail over the landlords’ rights. Conflict was not to be resolved by one set of rights trumping another but by deciding on the extent and scope of the golfing reservation.

[86] Sir Crispin accepted that a landlord could acquiesce in changing conditions of let but there was no suggestion here that the respondents had acquiesced in the restriction of their rights. If a landlord decided not to use a reservation he did not lose it and if he exercised it at a minimal level at one point that did not commit him to doing so for ever.

[97] The golfing reservation was a “quasi statutory” reservation in that it was fenced by what is now paragraph 9 of Schedule 2 of the 1993 Act. It was an effective condition which was fenced with an irritancy. It was given statutory force by Condition 9.

[98] The Dunbeath and Stornoway Trust cases added nothing to the argument. They were merely examples of attempts to agree matters with the Land Court approving one and not approving the other.

[99] Mr Maclean had said that a landlord could not go onto common grazings without resumption except in relation to reserved rights. That was wrong: a landowner could go onto common grazings for any purpose which did not materially or substantially affect the grazing rights.

[100] The Duke of Argyll v MacCormick and Duke of Sutherland v Matheson cases were not relevant to the present case because both proceeded on the basis that there was no reservation and no argument such as Sir Crispin had presented in the present case had been presented in these cases. In the Duke of Argyll v Vaul case it would have been open to the landlord to say that as the golf course was having no detrimental effect on the grazing, the landlord was merely doing what he was, as landlord, entitled to do.

[101] With reference to the effect of the reservation on any apportionment granted, any apportionment would have been subject to the reservation. The reservation would not have “flown off” simply because the land had been apportioned to a particular croft. Thus reservations such as rights of access or rights to lay pipes, did not fly off on apportionment. Although in Guthrie v Bowman he had been unsuccessful with an argument that use of land which had been apportioned remained confined to use for grazing, Sir Crispin renewed that argument before us although on the facts of the present case it might, he said, be affected by the existence of the right to crop. But even if the crofter cropped his apportionment it would remain burdened by the reservation; Palmer’s Trustees v Brown. So the golfing reservation did not restrict the right of any crofter in Askernish to apply for an apportionment. The golfing right was a pre-existing right and where there was a pre-existing right any apportionment would be burdened by it. Should a crofter seek to buy the land comprised in an apportionment it would be up to this Court to decide whether to continue the application of the reservation as a term and condition of purchase.

[102] With reference to the reservation having survived the introduction of the 1955 Act, Sir Crispin adopted Mr Maclean’s comments as to the saving effect of the transitional provisions of that Act.

[103] Sir Crispin concluded by saying that what he and Mr Maclean were looking for was some guidance on the scope of the reservation in the hope that once that guidance was available something could be “worked out” but even if that did not happen both sides would know how to focus their pleadings ahead of a proof.

Discussion and decision

(i) Jurisdiction

[104] We preface what follows by observing that, although the golfing reservation appears to confer on this Court the jurisdiction to determine the extent and scope of its use and any question about it arising in any manner of way, what really confers jurisdiction on us to deal with this matter is section 1(6) of the Scottish Land Court Act 1993, in terms of which the Court has jurisdiction to hear and determine “all matters, whether of law or fact, which arise under the Crofters (Scotland) Act 1993 or the Small Landholders (Scotland) Act 1886 to 1931”.

(ii) Context in which reservation made

[105] We think it right to approach the task of interpreting the reservation by seeing it in its context. That context was a comprehensive land settlement scheme carried out by the Board of Agriculture under sec 7(8) of the Small Landholders (Scotland) Act 1911 as amended by sec 9 of the Land Settlement (Scotland) Act 1919. It involved the creation of a wholly new crofting township where there had been none before. Thus the creation of both the crofts and the common grazings was new. It involved the curtailment and adjustment of existing rights and the creation of new ones. The terms of the scheme were negotiated between the Board and Lady Gordon Cathcart and her agents. The intended landholders were not party to that process but its results were, essentially, adopted by those who eventually became tenants when they signed their individual missives of let.

[106] The significance of all of that is that in the creation of the scheme the Board were in a position to take, and indeed had to take, an overview of the rights of both landlord and tenants under the proposed scheme and devise a scheme, balancing those rights, which would work. It is fair, therefore, to infer that the Board in 1922 thought that exercise of the golfing reservation and the landholders’ grazing and cropping rights could co-exist on the Askernish machair. Subsequent events showed that they were right. More particularly, however, it is fair to assume that the soumings arrived at in 1922 were arrived at in the full knowledge of the existence of the golf course and of the reserved right for the continued playing of golf on the machair.

(iii) Does the reservation still apply?

[107] Two factors were touched on at debate which raised the question whether the 1923 reservation still applies. One was the terms of the reservation itself, expressed as it is in terms of the pronoun “she” rather than in terms of “the landlord and her successors”. The other was the coming into effect of the 1955 Act.

[108] So far as the first is concerned, Mr Maclean accepted that the reservation was not confined to Lady Gordon Cathcart. He was, in our view, right to do so. What part VIII of the Second Schedule to the 1923 Order is dealing with is rights reserved to the landlord: its opening words are “There are reserved to the Landlord …”. The other reservations are obviously ones intended to apply in perpetuity. The word “she” in sub-paragraph (e) [the golfing reservation] refers back to the term “the landlord”. There are no words expressly limiting the reservation to Lady Gordon Cathcart. Reading the golfing reservation in its context, therefore, we consider that it was intended to apply in perpetuity.

[109] So far as the second is concerned, although Mr Maclean was right to raise the question, we are satisfied that the 1955 Act did not have the effect of replacing the whole terms and conditions upon which landholdings were held with an entirely statutory code. Sec 39(1) of that Act makes clear that that is not the case. It reads:-

“The tenancy of a crofter under this Act shall, in the case of every person who at the commencement of this Act became a crofter, be deemed, so far as is consistent with the provisions of this Act, to be a continuance of his tenancy as a landholder or a statutory small tenant, and all contracts and other instruments shall be read and construed accordingly.”

Additionally, subsection (5) of sec 39 expressly continues in effect, inter alia, any order or agreement made or condition imposed under any enactment relating to landholders. The order by which the 1922 scheme was brought into being was such an order and the agreement upon which it proceeded and the conditions it contains were agreements and conditions made under the 1911 and 1919 Acts. The case of MacLean v Lord Lovat which was referred to is a case from 1922, dealing with the coming into force of the 1886 Act. It has no bearing on the effect of the 1955 Act on a tenancy created under the 1919 Act. And, as Sir Crispin acknowledges in the article to which Mr Maclean referred, this Court has treated conditions of let imposed by the Board in a similar scheme as being still applicable notwithstanding the passage of the 1955 Act; Neish v North Talisker Grazings Committee. Accordingly we are of the opinion that the golfing reservation survived the coming into force of the 1955 Act.

(iv) Status of reservation as a “quasi-statutory” condition

[110] For the most part, we understood Sir Crispin to be saying that the golfing reservation could not be exercised beyond the point at which it would be impossible for the aggregate of the soumings to be maintained. However, he did also advance an argument that the golfing reservation could be seen as a quasi-statutory condition and, on that basis, that it could be exercised to any extent short of making it impossible to maintain crofting tenure.

[111] The term “quasi-statutory condition” was used by the Court in Elliot v Mackay to describe a condition attached to an enlargement of common grazings obtained through the intervention of the Board of Agriculture on the estate of Eriboll in 1922. The condition was that the crofters must manage the grazing as a sheep-stock club. It had been approved by the Court for the purposes sec 1(5) of the 1886 Act as amended. Sec 1(5) prohibited the landholders from persistently violating any written condition signed by him for the protection of the interest of the landlord or of neighbouring landholders which was legally applicable to the holding and which the Land Court had found reasonable. Its current equivalent is paragraph 9 of Schedule2 to the 1993 Act. The Court in Elliot referred to it as “being in the same category as a statutory condition” and Sir Crispin urged the same approach on us here. The consequence would be that the golfing reservation would taking precedence over the grazing rights and could, subject to the payment of compensation for damage done, be exercised to any extent short of making crofting tenure impossible; Strathearn v MacColl.

[112] The question for the Court in Elliot v Mackay was as to whether the condition requiring the grazing to be managed as a sheep stock amounted to the equivalent of a statutory condition breach of which could lead to irritancy. The Court held that it was. We do not see, however, how that assists the respondents’ argument in the present case where we are not concerned with irritancy or with the actions of the crofters at all but with the extent of the rights of the landlords. We agree that were the crofters to violate the golfing reservation that would come within paragraph 9 of Schedule 2 to the 1993 Act but we do not see how that helps in any way with the determination of the scope of the reservation.

[113] In so far as what is being argued is that the golfing reservation is on a par, if we may be excused the expression, with the landlord’s statutorily reserved rights contained in paragraph 11 of Schedule 2, a stumbling block in the way of that argument is the absence from the golfing reservation of a provision for payment of compensation for damage done. Sir Crispin suggested that the wording of the reservation was wide enough to give the Court power to award compensation for damage caused to the grazing by the golf. But that would, in our view, be to alter the terms of the reservation, rather than simply determine a question arising as to its extent or scope or arising in any other manner of way as to the use of the right. We do not say that the wording is not wide enough to empower us to award compensation in any circumstances but what we are really being asked to do is interpret the reservation as if it contained a provision for compensation so as to give it the character of a quasi-statutory condition. The fact is that the reservation is silent on compensation, no doubt because it was not envisaged that the question would arise. We are not prepared to ascribe to it a character which it does not have and in our view the argument that the reservation is to be taken as equivalent to a statutory reservation is without merit.

(v) The approach to be taken in construing the reservation

[110] We heard debate about whether ambiguity in the wording of the reservation should be resolved in favour of the landlord, given the legislative background to the scheme, but since we have found no such ambiguity we need not deal with that.

[111] Both parties referred to material in the way of letters (productions 13 and 14) from the period during which the scheme was being negotiated. These are not part of the pleadings. That would not normally be a bar to referring to them in the course of debate in this Court, but, having raised the matter with counsel, we understood their position to be that we could make use of these only in the context of a proof at which the whole of the factual matrix known to parties in 1922 was being explored and that the need for such a proof would arise only in the event that the court felt unable to decide what the reservation meant on the basis of its terms read in the context of the order of which it forms part. Neither side positively urged on us the necessity of a proof as to the situation in 1922, leaving it to the court to decide whether that was going to be necessary. We have decided that it is not.

(vi) The extent and scope of the golfing reservation

[112] We come, therefore, to the meat of the matter: the extent and scope of the 1923 reservation. Although we were treated to a very full debate very little of it dealt with the terms of the reservation and what they meant. Our conclusions have, therefore, been arrived at very much from our own reading of the words and our own reasoning as to their meaning in the wider context of the 1922 Scheme. These conclusions are as follows:-

(i) As already explained, the benefit of the reservation was not confined to Lady Gordon Cathcart: it has transmitted to all subsequent heritable proprietors of the machair and the present respondents are now in right of it.

(ii) There is no limitation on whom the landlord may “elect” to play golf. In particular there is no numerical limit. “Elect” we define as meaning simply “allow”.

(iii) The reference to the playing of golf being “free of rent or charge of any description” is a reference to payment to the landholders. That is the position which both Sir Crispin and Mr Maclean took in their submissions and we agree. What the reservation is dealing with is the adjustment of rights as between landlord and landholder, not as between landlord and golfers or golfers and landholders. This part of the provision is simply making clear that neither the landlord nor anyone deriving the right to play golf on the machair from the landlord requires to pay the landholders for doing so. Accordingly it does not prevent Askernish Golf Club from charging fees for use of the golf course.

(iv) Taking paragraphs (ii) and (iii) together and along with the inclusion in the reservation of the “right to have and keep a Golf House” leads us to conclude that the reservation is wide enough to include the operation of the golf course as a commercial concern.

(v) The right to play golf on this scale carries with it, as a necessary incident, the right to create tees, fairways and greens, to cut and otherwise maintain these as required and to protect the tees and greens by taking appropriate measures for the exclusion of animals from these protected areas from time to time or, indeed, continuously.

(vi) There is no geographical limitation on the playing of golf within the machair. The reference is not to “the use of the golf course” but to “the use of the machair lands for the purpose of playing golf”. It follows therefore that the landowners have always been entitled to relocate the course within the area of the machair.

The foregoing conclusions are drawn from the terms of the reservation itself. The reservation has, however, to be read in its context. Part of that context is the simultaneous conferment of grazing rights on the landholders. These rights were intended to co-exist. The measure of the landholders’ grazing rights in the common grazings is their souming. As we have already said, we are satisfied that the existence of the then golf course would have been taken into account in fixing the soumings. It follows, therefore, that the golfing reservation cannot be exercised in such a way or to such an extent that it is no longer possible to sustain such soumings on the common grazings, which, of course, comprise not only the machair but the area of common pasturage to the east of the township. Soumings are not fixed for all time. They can be varied by the Grazings Committee. They may be increased where the grazing has been improved or decreased where the grazing is no longer capable of sustaining the existing levels. What could not happen here is that the soumings be increased so as to impinge on the exercise of the golf reservation. So far as cropping rights are concerned, these seem to have been acquired only in the 1960s and we heard little about them. We understand that the respondents’ present plans do not impinge on any area used for cropping and we therefore say no more about these.

[113] We trust that these propositions, although in some cases appearing to do little more than stating the obvious, are of help to the parties. If they have further, more detailed questions which they wish us to address they are at liberty to raise these in ensuing procedure. Whether the two sets of rights conflict irreconcilably is a matter for proof and if it is shown that they do that conflict will have to be resolved when we come to it. For the moment, in the matter of definition of rights, we have proceeded on the basis that there is not necessarily any such conflict.

(vii) The landowner’s rights in a common grazing

[114] This case has raised fundamental questions as to what rights the owner of land comprising common grazings has to use that land. Although it is not necessary for us to decide these questions, given the existence of the reservation on which, in our view, the case really turns, in deference to the full and good debate we heard on these matters we should express ourselves on them.

[115] These questions arise from certain propositions advanced by Sir Crispin. His starting point was the limited nature, as he submitted, of crofters’ rights in common grazings. These were rights to graze a certain level of stock and, occasionally, limited rights to take peat or to crop. (In what follows we confine ourselves to grazing rights.) They did not amount to a lease of the land in question, did not entitle the crofters to exclusive possession of that land and did not debar the landowner from using the land for any other purpose he wished so long as it did not seriously or substantially impinge on the exercise of the grazing rights.

[116] Breaking that proposition down, we agree that the rights of crofters in common grazings do not amount to a lease, or the equivalent of a lease, of the land comprised in the common grazings. They are, rather, grazing rights which crofters hold as pertinents of their crofts; Crofters Commission v Arran Limited, Crofters Commission v The Scottish Ministers, dictum of Lord President Clyde in Ross v Graesser at page 74. In terms of sec 3(4)(a) of the 1993 (repeating the terms of sec 3(5) of the 1955 Act and, in part, sec 26(1) of the 1911 Act) where a crofter has such a right it (as distinct from the land over which the right is exercisable; Ross v Graesser supra) is deemed to be part of the croft.

[117] But that is not the whole story. Firstly, although the land comprising common grazings is not held on a lease by the crofters their rights to graze it extend over the whole area comprised in the common grazings, as was acknowledged by the Court in the Vaulcase where they held (at page 53G) that surrendering even the small areas required for tees and greens involved a renunciation by the shareholders of their grazing rights. Secondly, the fact that the right to graze is part of the croft means that the provisions of the Crofting Acts giving the landlord certain reserved rights (now paragraph 11 of Schedule 2 to the 1993 Act) and the provisions relating to resumption (now secs 20 and 21 of the 1993 Act) have always applied to land comprising common grazings as well as to the inbye land of crofts. Of the cases cited to us Strathearn v MacColl and Crofters Sharing in Keil Common Grazings v MacColl are examples of the former and Duke of Sutherland v Matheson, Trustees of the Tenth Duke of Argyll v MacCormick and Trustees of the Tenth Duke of Argyll v Crofters Sharing in the Vaul Common Grazings of the latter.

[118] That is relevant to the second part of Sir Crispin’s proposition: that crofters sharing in a common grazing are not entitled to exclusive occupation of the grazings. To the extent that the foregoing statutory provisions entitle the landlord to exercise certain rights (i.e. the reserved rights) over the grazings we agree with that proposition. But the very fact that such provisions exist – and that they apply to common grazings as they do to inbye croft land - suggests to us that it is not the case that the landlord can carry out any activity he wishes on the grazings so long as it does not substantially or materially impinge upon the grazings rights. We tend, rather, to the view that, subject to the possibility of other activities taking place by virtue of either a sec 5(3) agreement or resumption, paragraph 11 contains an exhaustive list of the activities a landlord can carry out on a crofting common grazings. And so far as the powers of resumption are concerned, if Sir Crispin’s proposition is correct there would, strictly speaking, be no need for resumption unless the reasonable purpose proposed was going to seriously or substantially impinge on exercise of the grazing rights. On that view many of the recent resumption applications relating to wind farm sites on common grazings would not have been necessary: the landlord could have gone ahead anyway as long as enough grass was left for the grazing and the crofters would not have been entitled to any share in value under sec 21. In Sir Crispin’s view it was merely an excess of caution which explained these resumptions. And in the present case, even if golf had never been played on the machair and the golfing reservation had never been made the landlords would have been entitled to build a golf course on the machair anyway, without consultation with the graziers never mind resort to secs 5(3) or 20 of the 1993 Act, subject only to being able to show that it was not going to seriously or substantially impinge on the crofters’ exercise of their grazings rights. We think Mr Maclean was right to describe those as startling propositions which would cause consternation in the crofting community. We disagree with them.

[119] The point at which the argument for the respondents falls into error is, in our view, at its very start, in its reliance on the comparison with the law of servitudes. Having made some perfectly valid comparisons between that area of law and crofters’ common grazings rights – as this Court itself did in the Arran case (at page 23C-F) – Sir Crispin refused to let it go. But the comparison in our view is of no assistance beyond the use made of it in the Arrancase. That case was concerned with whether an area of land was a common grazings. In that connection the Court was analysing the nature of common grazings and crofters rights over common grazings. We are concerned with the extent of landlords’ rights in what is undoubtedly a common grazings regulated by the 1993 Act. In that context, pressing the servitude analogy too far runs the risk of ignoring the statutory framework within which landlords’ rights in common grazings require to be seen.

[120] Looking at it in that way, a number of propositions can be identified:-

(i) The right a crofter has in a common grazings is not merely a right to as much grass as will satisfy his souming but a right to graze his animals over the entire common grazings.

(ii) Where there are unallocated shares in a common grazings, the landlord may use these to graze stock on the land up to the level of the relevant souming(s). Where, on the other hand, as here, the shares are all possessed by others, the landlord has no right to graze because the grazing has been exhausted.

(iii) Without resorting to the statutory mechanisms we come to below and in the absence of any valid reservation of rights at the outset, such as we have here, the only use the landlord can make of land comprising common grazings is use for one of the purposes listed in paragraph 11 of Schedule 2 to the 1993 Act and such use is subject to payment of compensation to the crofters for any damage done. Subject to payment of compensation, use of the common grazings for a statutorily reserved purpose can be carried out to any extent short of rendering it impossible for crofting tenure to be maintained; Strathearn v MacColl. A landlord does not have to resume land from the common grazings in order to be able to use it for a paragraph 11 purpose but he can opt to apply for a resumption order where he wants to terminate crofting rights over the land, as will often be the case for a large scale development. Trustees of the Tenth Duke of Argyll v MacCormick is an example of that (see in particular page 903H-J).

(iv) Landlords and crofters can enter into agreements as to the use of common grazings but where these agreements would result in deprivation of certain rights conferred upon the crofters by the 1993 Act they require the approval of this Court in terms of sec 5(3) of the Act. Stornoway Trust v Mackay is an example of that being done under the corresponding section of the 1955 Act.

(iv) Where the landlord, or anyone deriving right from him, wants to use the grazings or part thereof for a purpose (which has to be a reasonable purpose in terms of sec 20(1) of the 1993 Act) other than one listed in paragraph 11 of Schedule 2 and matters do not, for whatever reason, proceed by way of an agreement under sec 5(3), he must seek authorisation for resumption from this Court under sec 20 and 21 which, if granted, will lead to payment of compensation and a share of value in the land resumed to the crofters.

(viii) Derogation from grant

[121] Mr Maclean submitted that what the respondents were doing in altering the golf course was a derogation from the grant which had been made to the landholders in 1922. The starting point for an examination of that argument, as Sir Crispin pointed out, is to ask what that grant was. In our view that grant was of grazing rights to the level of their soumings which were to co-exist with the landlord’s continued golfing rights in terms of the golfing reservation. It would be wrong, we think, to express this by saying that the crofters’ rights were “burdened” with the reservation because, as we see it, the two were always intended to co-exist as they have done, more or less happily, until now. Accordingly anything done now which is within the extent and scope of the reservation as we have defined it will not be a derogation of that grant. Correspondingly, anything done beyond it will be. Whether that border is being crossed by what the landlords propose will be a matter for proof.

(ix) Relevance of Crave 1

[122] Sir Crispin attacked the relevance of Crave 1 of the application. It asks us to find that the pre-2006 arrangements for the playing of golf on the machair were unofficial in as much as they were not provided for in the Grazings Regulations, not taken into account for the purpose of fixing fair rents and not the subject of an agreement under sec 5(3) of the 1993 or its predecessor.

[123] So far as the first of these is concerned, Mr Maclean founded strongly on sec 49(8) of the 1993 Act. It reads as follows:

“Common grazings regulations for the time being in force under this section shall have effect notwithstanding anything contrary thereto or inconsistent therewith contained in any lease or other agreement, whether entered into before or after the coming into force of such regulations.”

Despite the wide terms of the sub-section, we think it must be read as referring to anything appropriate to be included in such regulations. The proper province of these regulations is to regulate the management and use of common grazings among the graziers inter se. Grazings regulations could not, for example, interfere with the exercise of the landlord’s statutorily reserved rights. Nor, in our view, can they interfere with rights of the nature of reserved rights contained in the conditions of let of a land settlement scheme under the 1919 Act which are not inconsistent with the Landholders Acts and which the Board of Agriculture have thought reasonable.

[124] So far as the second is concerned, we do not regard the fact that nothing was made of the existence of the golf course when fair rents were being fixed as having any bearing on the status, extent or scope of the 1923 reservation. When fair rents were originally fixed by this Court in pursuance of the 1922 Scheme it was well aware of the existence of the reservation. According to the applicants’ pleadings, when the Court again fixed fair rents in 1989 it formed the impression that the golfing arrangements were unofficial. But it was clearly unaware of the existence of the 1923 reservation and we therefore attach no significance to that comment. Although it is perhaps venturing beyond our proper ambit following a debate, we venture to suggest, on the basis of what both sides said about the co-existence of golf and grazing until now, that the reason nothing was made of the existence of the golf course when fixing fair rents was that it was unproblematic at the time.

[125] So far as absence of an agreement under sec 5(3) is concerned, the need for such agreement arises only if the way the reservation is being exercised exceeds its scope so as to deprive crofters of their rights under the 1993 Act. We are not now concerned with whether that was the case pre-2006, which is what crave 1 refers to.

[126] For all of the foregoing reasons we regard crave 1 as irrelevant and, having dealt with its merits, there is no point in keeping it alive with a view to amendment by Mr Maclean at a later date. The remaining issues in the case are adequately focused, subject to any amendment Mr Maclean himself may wish to propose in light of this judgement, in the remaining craves, which we have allowed to go to proof. We have therefore refused crave 1 and made a finding instead that the playing of golf at Askernish has since 1923 had a valid and enforceable basis in the form of the foresaid reservation.

(x) Relevance of applicants’ pleadings otherwise

[127] So far as Sir Crispin’s comments on other passages of the applicants’ pleadings are concerned, he did not seek excision of these passages but suggested we may wish to comment on their relevancy. However, we are not persuaded that that would be a helpful exercise at this stage and we therefore decline the invitation to do so.

(xi) Relevance of respondents’ pleadings as to economic benefit

[128] Sir Crispin conceded that the passage of averments in Answer 9, at page 7, starting “Further explained and averred that this development is for the good of the community” to the end of that Answer was irrelevant to the issues we have to decide in this case. He faintly suggested that these averments may be relevant if we thought the terms of the reservation wide enough to let us take matters such as economic potential into account. We do not. In our view these averments are irrelevant and we have deleted them.

(xii) Further procedure

[129] As counsel invited us to do, we have allowed a period of six weeks adjustment and thereafter a proof before answer.

(xiii) Expenses

[130] We think it premature to even invite motions and submissions on expenses at this stage so we have reserved all questions of expenses pending the outcome of further procedure.

For the Applicants: Mr I Maclean, Advocate; Messrs Macleod & MacCallum, Solicitors, Inverness

For the Respondents: Sir Crispin Agnew of Lochnaw, QC; Messrs Anderson MacArthur & Co, Solicitors, Portree