Decision of the Scottish Land Court

Peter Malone (Applicant) v Mark Pattinson (Respondent)

Case reference SLC 39/17
before
Iain F Maclean, Deputy Chairman, and Tom Campbell
10 October 2018

Introduction

[1] Section 12(1) of the Crofters (Scotland) Act 1993 (“the 1993 Act”) provides that a crofter may, failing agreement with the landlord as to the acquisition by the crofter of croft land tenanted by him, apply to the Land Court for an order authorising him to make such acquisition. Section 13(1) of the 1993 Act provides that the Land Court, on an application to it made under section 12(1), may make an order –

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

(b) refusing the application.”

Section 13(2) of the 1993 Act provides that the Land Court shall not make an order in accordance with section 13(1)(a) of the 1993 Act where it is satisfied by the landlord as to either or both of the following matters -

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

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

[2] The Applicant is the tenant, and the Respondent is the landlord, of Croft 305 Rhuedue, Lochcarron (“Croft 305”). The Applicant has applied under section 12(1) of the 1993 Act for an order authorising him to acquire Croft 305. The Respondent opposes the making of such an order, invoking in his pleadings in response to the application both of the grounds for refusal set out in section 13(2) of the 1993 Act, but in practice relying principally on ground (b), that the making of such an order would be substantially detrimental to the interests of sound management of Lochcarron Estate, of which Croft 305 forms part.

[3] The gravamen of the Respondent’s case that the Applicant’s application under section 12(1) of the 1993 Act should be refused is that it would undermine his policy, as landlord of Lochcarron Estate, of not selling crofts to crofters who are in breach of the statutory duties imposed on them by sections 5AA (Crofters: residency duty), 5B (Crofters: duty not to misuse or neglect croft) and 5C (Crofters: duty to cultivate and maintain) of the 1993 Act. The Respondent contends that the Applicant is in breach of certain of his duties under sections 5B and 5C. It was argued on behalf of the Respondent that against a background of inaction by the Crofting Commission (“the Commission”) in the enforcement of statutory duties, his own efforts to encourage active crofting on Lochcarron Estate would be rendered nugatory if any tenant in breach could thwart enforcement action by the landlord through the expedient of forcing a sale of the croft to him or her. For the Respondent to succeed in making out such a case, he requires to prove:

(i) that he genuinely has and applies such a policy;

(ii) that the Applicant is indeed in breach of his statutory duties not to misuse or neglect, and to cultivate and maintain, Croft 305; and

(iii) that for us to require him to convey Croft 305 to the Applicant would either cause him a substantial degree of hardship or be substantially detrimental to the interests of sound management of Lochcarron Estate.

[4] The Applicant denies that he is in breach of his duties under sections 5B and 5C. Those statutory duties were inserted into the 1993 Act by the Crofting Reform (Scotland) 2010 (“the 2010 Act”). Until now, no defended application has come before the Land Court for decision in which the issue of an alleged breach by a crofter of his or her duties under sections 5B and 5C of the 1993 Act has been raised, and in consequence, those sections have not, hitherto, been subjected to judicial analysis. That makes this potentially an important case, with possible ramifications for the wider crofting community, although it may be regarded as something of a pity, from that perspective, that the first contested proceeding before the Land Court in which we have had to consider the meaning and effect of sections 5B and 5C is neither an application at the instance of the landlord for termination of the tenancy under section 26(1)(c) of the 1993 Act nor an appeal against either a decision of the Commission under section 26C(5) of the 1993 Act that a duty is not being complied with or the making by the Commission of an order under section 26H of the 1993 Act terminating the tenancy of the crofter, in which the issue of whether the crofter is in breach of those statutory duties would be the sole focus of the case.

Procedure

[5] One day only was assigned initially for the hearing in this application. Having received parties’ respective lists of witnesses, and having become aware, with the benefit of sight of their respective pleadings, of the important and in certain respects novel issues the application raised, it was obvious to us that one day would be insufficient. With the co-operation of parties’ agents, we were enabled to convert the original one day hearing in Plockton Village Hall scheduled for 6 December 2017 into a two day hearing, taking in also the following day. By sitting late both days, we were able to conclude the evidence, but time did not allow for us to embark on hearing parties’ closing submissions.

[6] Our intention had been to carry out an inspection of Croft 305 as part of a wider tour around the Respondent’s Lochcarron Estate on the morning of 8 December 2017, but winter closed in overnight and our plans were thrown into some disarray by the substantial quantity of snow that had fallen. Our attempt to negotiate the as yet un-gritted coast road between Plockton and Lochcarron ended in failure, and we were forced to beat a retreat to Kyle of Lochalsh, where we learned that the A890 road, which branches off the main A87 road at Auchtertyre, crosses over the hill to Stromeferry and then proceeds onward to Strathcarron, was by this time passable. We eventually arrived at the Applicant’s croft over an hour later than intended. Despite the snow on the ground, we did manage to carry out a rudimentary inspection of Croft 305, and having ascended to an elevated vantage point on the common grazings above it, we obtained also an overview of how it compared with its immediate neighbours. Because the minor roads in the area remained un-gritted, we had to abandon our original plan to continue on to Ardaneaskan to view the crofts there to which the Respondent had referred in the course of his evidence, and more generally to traverse Lochcarron Estate to gain our own impression of the general state of the crofts and common grazings thereon, as parties had agreed we should do.

[7] We returned to Plockton to hear parties’ closing submissions on 22 February 2018, and the next day travelled back to Lochcarron and then on to Ardaneaskan to complete, in bright and very welcome sunshine, the inspection which had been so disrupted by the weather on our previous trip north in early December. In advance of the continued hearing, we had on 15 December 2017 ordained parties to prepare and exchange written closing submissions, addressing the following issues which, it seemed to us, the case threw up: -

(i) the scope of a crofter’s duties under subsections (2)(a)(i) and (2)(b) of section 5C of the 1993 Act;

(ii) the relationship between the positive duties imposed on a crofter by section 5C of the 1993 Act and the duties cast in negative form in section 5B of the 1993 Act;

(iii) how we were to go about identifying the benchmark against which compliance with those statutory duties is to be measured;

(iv) the relevance to the exercise of a crofter’s qualified right to purchase the croft land tenanted by him under section 12(1) of the 1993 Act of whether or not the crofter is in breach of those statutory duties; and

(v) whether the making of an order authorising the Applicant to purchase Croft 305 would be substantially detrimental to the interests of sound management of Lochcarron Estate in terms of the statutory ground of refusal set out in section 13(2)(b) of the 1993 Act.

Both Jeremy Benfield, solicitor, of MacPhee & Partners, Fort William, who appeared for the Applicant, and Andrew Murchison, solicitor, of Murchison Law, Inverness, for the Respondent, rose to the challenge and provided us with comprehensive and thoughtful written submissions, to which they spoke at the continued hearing. We are very grateful to both of them for the assistance they provided in this regard. The following cases, statutes, Parliamentary materials and textbooks were referred to in the course of their written and oral submissions:

Cases

Arran Properties Ltd. v Currie 1983 SLCR 92
Bowman v Guthrie 1997 SLCR 40
Fraser v MacKintosh 1995 SLT (Land Ct.) 45
Geddes v Gilbertson 1994 SLT (Land Ct.) 55
Geddes v Martin 1987 SLCR 104
Lamont v Kennedy 2010 SLCR 76
Little v McEwan 1965 SLT (Land Court) 3
McDonald v O’Donnell 2008 SC 189
Macdonald v South Uist Estates Ltd. 2012 SLCR 150
MacKay v Trustees of Miss S. N. Barr 1981 SLCR App 76
MacLaren v MacLaren 1984 SLCR 43
Reference by Crofters Commission under section 53 of the Crofters (Scotland) Act 1993 2012 SLCR 159
Waugh v Thrumster Estate Ltd. (South Yarrows) 2006 SLCR (2) 53

Legislation

Small Landholders (Scotland) Act 1911
Crofters (Scotland) Act 1955
Crofting Reform (Scotland) Act 1976
Agricultural Holdings (Scotland) Act 1991
Crofters (Scotland) Act 1993
Crofting Reform etc Act 2007
Crofting Reform (Scotland) Act 2010
The Common Agricultural Policy Schemes (Cross-compliance)(Scotland) Regulations 2004 (SSI 2004/518)

Parliamentary materials

Hansard
House of Lords Debate 6.4.1976 vol. 369, cc 1575 – 630
House of Lords Debate 4.5.1976 vol. 370, cc 355-96

SPPB 149 (18 February 2010), pages 784 – 830

Texts

Sir Crispin Agnew of Lochnaw Bt., QC, Crofting Law (2000) at page 31
The Right Hon Lord Gill, Agricultural Tenancies (4th Ed.; 2017); paragraphs 3.03 – 3.12
Gloag & Henderson, The Law of Scotland (14th Ed.; 2017); paragraphs 1.39 – 1.51

The new statutory duties and the procedures for enforcement

[8] The new statutory duties appear in the 1993 Act under the cross-heading “Crofters’ duties relating to residency, use, misuse and neglect of crofts”. They supplement the statutory conditions set out in Schedule 2 to the 1993 Act (“the statutory conditions”), to which every tenancy of a croft is subject by virtue of section 5(1) of the 1993 Act. The new statutory duties are in the following terms:

“5AA Crofters: residency duty

A crofter must be ordinarily resident on, or within 32 kilometres of, that crofter’s croft.

5B Crofters: duty not to misuse or neglect croft

(1) A crofter must not misuse or neglect the crofter’s croft.

(2) A crofter misuses a croft where the crofter—

(a) wilfully and knowingly uses it otherwise than for the purpose of its being cultivated or put to such other purposeful use as is consented to under section 5C(4);

(b) fails to use the croft for the purpose of its being cultivated; or

(c) fails to put the croft to any such purposeful use.

(3) A crofter neglects a croft where the croft is not managed so as to meet the standards of good agricultural and environmental condition referred to in regulation 4 of, and the schedule to, the Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2004 (SSI 2004 No. 518).

(4) But where the crofter, in a planned and managed manner, engages in, or refrains from, an activity for the purpose of conserving—

(a) the natural beauty of the locality of the croft; or

(b) the flora and fauna of that locality,

the crofter’s so engaging or refraining is not to be treated as misuse or neglect as respects the croft.

(5) If, immediately before the coming into force of section 7 of the Crofting Reform etc. Act 2007 (asp 7), the croft was being used for a subsidiary or auxiliary occupation by virtue of the right conferred by paragraph 3 of schedule 2 to this Act (as that paragraph then applied), any continuation of use for that occupation is not to be treated as misuse or neglect as respects the croft.

(6) The Scottish Ministers may, by order, amend the meaning of neglect in subsection (3) so as to substitute different standards for those for the time being mentioned in that subsection.

5C Crofters: duty to cultivate and maintain

(1) A crofter must comply with each of the duties set out in subsection (2).

(2) Those duties are that the crofter —

(a) must —

(i) cultivate the croft; or

(ii) put it to another purposeful use,

so that every part of the croft which is capable of being cultivated or put to another purposeful use either is cultivated or is put to such use;

(b) must keep the croft in a fit state for cultivation (except in so far as the use of the croft for another purposeful use is incompatible with the croft being kept in such a state).

(3) Without prejudice to the generality of paragraph (b) of subsection (2), in determining whether that paragraph is complied with regard is to be had to whether appropriate measures (which may include the provision of drainage) are routinely undertaken, where requisite and practicable, to control or eradicate vermin, bracken, whins, broom, rushes and harmful weeds.

(4) A crofter may only put the croft to a use mentioned in subsection (2)(a)(ii) if —

(a) the landlord has consented to the use (unconditionally or subject to conditions acceptable to the crofter); or

(b) the Commission have consented to the use.

(5) But a crofter may not apply to the Commission for consent under subsection (4)(b) until —

(a) the landlord has refused consent (or granted consent subject to conditions unacceptable to the crofter); or

(b) the period of 28 days, commencing with the date on which the request for the consent of the landlord was made, has expired,

whichever occurs first.

(6) The Commission must, on receipt of such an application for consent —

(a) consult, as regards the proposed purposeful use, the landlord and the members of the crofting community in the locality of the land; and

(b) if the proposed purposeful use —

(i) constitutes a change for which planning permission is required; or

(ii) by virtue of any enactment (other than this Act) requires any other permission or approval,

require it to be shown that the permission or approval has been given.

(7) The Commission must decide the application within 28 days after receiving it; and if they give their consent may impose such conditions as they think fit.

(8) In this Act —

"cultivate" includes the use of a croft for horticulture or for any purpose of husbandry, including the keeping or breeding of livestock, poultry or bees, the growing of fruit, vegetables and the like and the planting of trees and use of the land as woodlands;

"purposeful use" means any planned and managed use which does not adversely affect —

(a) the croft;

(b) the public interest;

(c) the interests of the landlord or (if different) the owner; or

(d) the use of adjacent land.”

Equivalent duties are imposed on persons falling within the definition of “owner-occupier crofter” in section 19B of the 1993 Act, for which see section 19C of the 1993 Act.

[9] Section 5(2) of the 1993 Act provides that a crofter shall not be subject to be removed from the croft of which he is tenant except — (a) where one year’s rent of the croft is unpaid; (b) in consequence of breach of one or more of the statutory conditions, other than the condition as to payment of rent; or (c) in pursuance of any enactment, including any enactment contained in the 1993 Act. Section 26 (Provisions as to removal of crofter) of the 1993 Act provides that:

“(1) When—

(a) one year's rent of a croft is unpaid,

(b) a crofter has broken one or more of the statutory conditions (other than the condition as to payment of rent), or

(c) a crofter has breached any duty mentioned in section 5AA, 5B or 5C,

the Land Court may, on the application of the landlord and after considering any objections stated by the crofter, make an order –

(i) terminating the tenancy;

(ii) declaring the croft to be vacant; and

(iii) for removal of the tenant from the croft.”

[10] There follows a series of 10 new sections (sections 26A – 26H, 26J and 26K), inserted into the 1993 Act by section 37 of the 2010 Act, setting out the procedures for the enforcement by the Commission of the new statutory duties imposed on crofters and owner-occupier crofters. Section 26A of the 1993 Act imposes on the Commission a duty to investigate, where the Commission receive a report from a grazings committee under section 49A(1) of the 1993 Act which includes information on a matter mentioned in section 26A(2) of the 1993 Act, or information in writing from a person mentioned in section 26A(3) of the 1993 Act, that - (a) a crofter is not complying with a duty mentioned in section 5AA, 5B or 5C of the 1993 Act, or (b) an owner-occupier crofter is not complying with a duty mentioned in section 19C(2) of the 1993 Act, unless the Commission consider the information is frivolous or vexatious (section 26A(5) of the 1993 Act). The persons mentioned in section 26A(3) are – (a) a grazings committee; (b) a grazings constable; (c) an assessor appointed under paragraph 16 of Schedule 1 to the 1993 Act; and (d) a member of the crofting community within which the croft to which the matter mentioned in section 26A(2) relates is situated. Where the Commission consider (whether following an investigation under section 26A(4) of the 1993 Act or otherwise), that there is such non-compliance, the Commission must, unless they consider that there is a good reason not to, give the “relevant person”, meaning the crofter (in the case of a croft) or the owner-occupier (in the case of an owner-occupied croft) (section 26B(4) of the 1993 Act) a written notice informing the person that the Commission consider that the duty is not being complied with (section 26C(1) of the 1993 Act). The notice must (a) explain the reasons why the Commission consider that the duty is not being complied with; (b) indicate that the relevant person may make representations within a 28 day representation period; and (c) where given to a crofter, be copied to the landlord of the croft (section 26C(2) of the 1993 Act). The Commission must have regard to any representations received within the representation period (section 26C(3) of the 1993 Act) and may also have regard to any representations received after the end of the representation period (section 26C(4) of the 1993 Act). The Commission must, before the expiry of the period of 14 days beginning with the day on which the representation period ends, decide whether the duty is being complied with (section 26C(5) of the 1993 Act).

[11] If the Commission decide that a duty is not being complied with, they must, before taking any action under sections 26H (Crofters: tenancy termination procedure) or 26J (Owner-occupier crofters: letting procedure) of the 1993 Act, give the relevant person a written notice giving the person an opportunity to give an undertaking to comply with the duty before the expiry of such period as the Commission consider reasonable (section 26D(1) of the 1993 Act). The Commission must decide whether or not to accept an undertaking before the expiry of the period of 28 days beginning with the day on which the relevant person offers to give the undertaking (section 26D(4) of the 1993 Act). The relevant person must have given the undertaking before the expiry of the period of 28 days beginning with the day on which the notice under section 26D (1) of the 1993 Act is given, and the giving of the undertaking by the person constitutes acceptance by the person that the duty is not being complied with (section 26D(2)(b) of the 1993 Act). Section 26E of the 1993 Act sets out the circumstances in which the Commission may not proceed with the tenancy termination and letting procedures introduced by sections 26H and 26J of the 1993 Act. These are where the period for giving or complying with an undertaking has not expired and where the undertaking has been complied with, where the Commission have consented to the sublet of the croft under section 27 of the 1993 Act or to the let of an owner-occupied croft on a short lease under section 29A of the 1993 Act, or to the absence from the croft of the crofter or owner-occupier crofter under section 21B of the 1993 Act, or where applications for any of such consents have been made but not determined by the Commission.

[12] If (a) the Commission decide that a duty is not being complied with; and (b) none of the conditions mentioned in section 26E apply, the Commission must take one of the actions mentioned in section 26F(2) of the 1993 Act, unless they consider that there is a good reason not to: section 26F(1) of the 1993 Act. Those actions are – (a) in the case of a crofter, the tenancy termination procedure under section 26H of the 1993 Act; (b) in the case of an owner-occupier crofter, the letting procedure under section 26J of the 1993 Act. The caveat “unless they consider that there is a good reason not to” reappears in both section 26H(1) of the 1993 Act and section 26J(1) of the 1993 Act. Section 26H(1) provides that if the Commission are satisfied that it is in the general interest of the crofting community in the locality of the croft, the Commission must make an order terminating the tenancy of the crofter unless they consider that there is a good reason not to. Section 26J(1) provides that the Commission must, unless they consider that there is a good reason not to, direct the owner-occupier crofter to submit to them, before the expiry of the period of 28 days beginning with the day on which the direction is given, a proposal for letting the owner-occupier’s croft.

[13] As we read the legislation, the Commission’s positive duty under section 26A(4) of the 1993 Act to investigate non-compliance by a crofter with a duty mentioned in sections 5AA, 5B or 5C of the 1993 Act does not, in terms, extend to acting on information relating to such a matter from the crofter’s landlord. Owing to the definition in section 61(1) of the 1993 Act of “crofting community” as meaning all the persons who (a) occupy crofts within a township which consists of two or more crofts registered with the Commission; and/or (b) hold shares in a common grazing associated with that township, the landlord of the croft will not, by reason of that status alone, qualify as a member of the crofting community within which the croft to which the suspected breach of duty relates is situated for the purposes of section 26A(3)(d) of the 1993 Act.

The Respondent’s late adjustments

[14] Shortly before the hearing, the Respondent’s agents intimated a Minute of Amendment, and thereafter a revised version of that Minute containing further adjustments. Mr Benfield, for the Applicant, had no objection to amendment in terms of the original Minute of Amendment, but he did object to the allowance of the later adjustments, the Minute containing which had been intimated to him by the Respondent’s agents by facsimile transmission as recently as 4.30 pm on the eve of the hearing on 6 December 2018. The import of the adjustments to the Minute of Amendment was to found a case that the Applicant was in breach also of the statutory duty under section 5B (Crofters: duty not to misuse or neglect croft) of the 1993 Act, the Respondent’s case hitherto having been periled on establishing breach by the Applicant of the statutory duty under section 5C (Crofters: duty to cultivate and maintain) of the 1993 Act. In explaining the thinking that lay behind the proffering of these late adjustments, Mr Murchison informed us that whilst reviewing the statutory provisions in the course of his final preparations for the hearing, it had occurred to him that the facts relied upon by the Respondent, in addition to being characterised as failures under section 5C(2)(b) of the 1993 Act, might also (or instead) comprise a failure under section 5B of the 1993 Act. To avoid the possibility of objection being taken on a technical ground to the allowance of any of the evidence the Respondent was proposing to adduce to establish breach of statutory duty on the part of the Applicant, what were “very minor further adjustments addressing this point” had been inserted into the Minute of Amendment.

[15] In essence, then, the Respondent, until shortly before the hearing, had been offering to prove breach by the Applicant only of the statutory duties, couched in positive terms, to cultivate his croft and to keep it in a fit state for cultivation, as set out in section 5C of the 1993 Act. The adjustments to the Minute of Amendment sought to introduce, on an and/or basis, a case based on breach by the Applicant of the statutory duty, couched in negative terms, not to misuse or neglect his croft, as set out in section 5B of the 1993 Act. The Respondent’s late adjustments thus raise the issue of the relationship between the positive duties imposed on a crofter by section 5C of the 1993 Act and the duties cast in negative form in section 5B of the 1993 Act, to which we drew attention in the Note appended to our Order dated 15 December 2017. Mr Benfield’s concern that the Applicant might be prejudiced by the allowance of these adjustments was centred on the possibility that Mr Murchison might seek to lead evidence of alleged specific breaches of the standards of good agricultural and environmental condition, to which reference is made in section 5B(3) of the 1993 Act. He argued that if that were the Respondent’s intention, then the Applicant was entitled to, but had not received, fair notice of what those alleged specific breaches were.

[16] Section 5B(1) of the 1993 Act contains the “headline” duty on the part of a crofter not misuse or neglect his croft. Section 5B(2) of the 1993 Act then defines what constitutes misuse of a croft, and section 5B(3) of the 1993 Act defines what constitutes neglect of a croft. As we interpret it, those definitions are exhaustive of the circumstances in which a crofter may be found to be in breach of one or other of the two elements of the statutory duty under section 5B(1) of the 1993 Act. Thus, the only means of making out a case that a crofter has neglected a croft, in breach of the statutory duty under section 5B(1), is to prove that the croft is not managed so as to meet the standards of good agricultural and environmental condition referred to in Regulation 4 of, and the Schedule to, the Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2004. Here, we agree with Mr Benfield that it would be incumbent upon a party who seeks to establish breach by a crofter of the statutory duty imposed by section 5B(1) not to neglect the croft, as a matter of fair notice, to identify in his pleadings the standards of good agricultural and environmental condition it is alleged the croft is not being managed so as to meet, and to specify the respects in which it is claimed those standards are not being met in this instance. In the particular circumstances of this application, however, that expression of view is of very limited practical significance, as Mr Murchison expressly disavowed any intention on his part to lead evidence of specific breaches by the Applicant of his cross-compliance obligations. Upon that basis, we allowed amendment in terms of the Respondent’s Minute of Amendment (as adjusted) and the adjustments for the Applicant in response thereto. It follows from Mr Murchison’s disavowal of intention to lead evidence of specific breaches by the Applicant of his cross-compliance obligations that the Respondent is not in a position to advance a case that the Applicant is in breach of his statutory duty under section 5B(1) not to neglect Croft 305, and so the only case that, in the circumstances, it remains open to him to advance under reference to section 5B(1) is that the Applicant has misused Croft 305 by failing to use it for the purpose of its being cultivated, as provided for in section 5B(2)(b) of the 1993 Act. This would, on the face of it, seem to be the same duty, cast in negative form, as the positive duty imposed on a crofter by section 5C(2)(a)(i) of the 1993 Act that he must cultivate the croft.

The witnesses

[17] There was no motion in this application for the Respondent to be ordained to lead at proof, as so we heard first from the Applicant himself. One witness was called on his behalf, his friend and fellow Lochcarron resident Mrs Suzanne Jones, a retired farmer and dog trainer. The Respondent gave evidence. He called two witnesses, Gillian Mary McKnight, a Conservation Consultant with SAC Consulting in Inverness, who spoke to a report dated 30 November 2017 [Production 30] she had compiled on the condition of Croft 305 as she had found it on an inspection carried out by her on 13 November 2017, and Dr Rebecca Dean, who was called as an exemplar and beneficiary of the Respondent’s policy of recovering crofts from crofters who were in breach of their statutory duties and making the tenancies over to new intrants to crofting. The list of witnesses for the Respondent intimated in advance of the hearing had indicated that he might call two further witnesses, James (otherwise “Jamie”) Seel and Gregor Black, but we were advised that they were unable to attend on the day originally appointed for the hearing, and no motion was made on behalf of the Respondent to secure their evidence at a later date or by some other means. We did, however, glean something at second hand about the activities of these persons, who either had obtained, or were hoping to obtain, a croft from the Respondent and who, like Dr Dean, were held up to us as models of the sort of active young crofters the Respondent’s stated policy was intended to encourage.

The evidence about Croft 305, its condition and usage

[18] The Applicant is by profession a veterinary surgeon. He was formerly the senior partner in a six partner practice in Northumberland, his own specialism being in large animals. He and his wife acquired a holiday house in the Lochcarron area in 1989. On 29 November 1995 the Applicant obtained from its tenant, Donald MacKenzie, an assignation of Croft 305, a bareland croft created from the sub-division (or perhaps more accurately, division) of Croft 305/306 Rhuedue [Production 40], along with a grazings share in the Wester Slumbay Common Grazings, the souming in relation to which was one cow and five sheep. The whole extent of Croft 305 lies above the public road which branches off the A896 in the village of Lochcarron and runs around the north shore of Loch Carron as far as Ardaneaskan. The Applicant having opted to take early retirement in the wake of the BSE crisis, he and his wife built a new house, now known as Calally Cottage, on Croft 305 down by the roadside, and took up ordinary residence there in 1997. They are now well established members of the local community, the Applicant serving as relief postman for the area. The site of the dwellinghouse and garden ground, extending to 0.2 ha or thereby, was decrofted on 22 May 2009 [Production 26].

[19] The south-facing croft land of Croft 305 forms a rectangle, of 1.3045 ha in area, extending up the hillside behind Calally Cottage to a stone wall, beyond which lie the Common Grazings. The Applicant and his wife have established an attractive and productive garden, featuring fruit cages, raised beds and a vegetable plot, sheltered within mature hedges. The Respondent, in the course of his evidence, volunteered, quite unprompted, that the garden created by the Applicant and his wife, the cultivated area of which extends beyond the boundaries of the decrofted subjects into the croft land of Croft 305, is one of the finest in Lochcarron. The cultivated area is separated from the remainder of Croft 305 by a post and wire fence, with a field gate facilitating access thereto. The balance of the croft land was, in 1999, divided into two parts with the erection of a deer fence, which spans the breadth of Croft 305, approximately one-third of the way up the croft (“the cross-fence”). The larger part of Croft 305 above the cross-fence was enclosed with stock-proof post and wire fencing in 2003. Below the cross-fence there stands a small agricultural shed, commissioned by the Applicant at or about the same time Calally Cottage was being built, and also an open-ended pole barn-type structure close to the boundary between Croft 305 and croft no. 306 Rhuedue, which lies immediately to the south west of Croft 305. This open-ended structure spans an access track that runs from the public road between the decrofted house site and garden ground and the boundary with croft no. 306 Rhuedue and on up a sharp incline to the cross-fence, where it abruptly ceases. The access track in its present form dates back to 1997; it was extended by the Applicant up to the cross-fence in 2013. When he took over Croft 305, the Applicant planted, as a shelter belt, a stand of Scots Pines on the rocky outcrop on the north east side of the lower part of the croft land immediately behind the dwellinghouse and garden ground. They have grown in the intervening period into sizeable trees. The Applicant has established a water supply to serve the areas both below and above the cross-fence. He estimated that he had spent in the region of £30,000 on these improvements, the larger part of that sum, we infer, having been incurred in the building of the agricultural shed, fencing, and the surfacing and extension of the access track.

[20] Although the croft land of Croft 305 has been divided into two principal parts by the cross-fence, it would be fair to say that, as a matter of topography, it consists of three distinguishable areas, over three levels. Working up from the public road, there is, just behind the decrofted area, a sheltered hollow, the rear side of which rises sharply to the rocky outcrop upon which stand the Scots pines planted by the Applicant. The croft land between that rocky outcrop and the cross-fence rises gently but is prone to being boggy; we formed the view on inspection that this area is something of a natural bowl and will always prove difficult to drain effectively. Beyond the cross-fence, the croft land rises increasingly steeply up to the rear fence, which backs onto the Wester Slumbay Common Grazings. The steepness of this part of Croft 305 is such as to make it difficult, if not impossible in places, to work with agricultural machinery. We noted that there were, between Croft 305 and its adjoining neighbour to the south west, croft no. 306 Rhuedue, two parallel drystone dykes with a narrow passage between them, which we speculated may have been created for the purpose of enabling the crofters to move sheep or cattle on and off the common grazings above without disturbing other livestock on the crofts or running the risk of causing damage to any growing crops thereon. The part of Croft 305 above the cross-fence was, on inspection, readily distinguishable from the heather-covered hill ground above it: this outrun is land that must, once upon a time, have been improved, but we gauge that this must have occurred many decades before the Applicant obtained the tenancy of Croft 305.

[21] When he took on the tenancy of Croft 305, the croft land was in a neglected state, the outgoing crofter Donald MacKenzie having been in poor health for some time before the assignation in favour of the Applicant took place. There was old machinery to be disposed of and infestations of bracken in both the upper and lower parts of the croft land. The lower part was extensively infested with rushes, pre-existing drainage problems seemingly having been exacerbated by the erection of a house, “The Sithean”, on the neighbouring croft, no. 304 Rhuedue. The Applicant has, over the years, attempted to control the spread of bracken and rushes, by treating them with chemicals applied via a knapsack sprayer and more recently by manually pulling out bracken stalks one by one, and strimming the rushes. His efforts have succeeded in controlling, but not eradicating, these invasive plants. What principally distinguishes the croft land of Croft 305 from that of its immediate neighbours on either side, crofts nos. 304 and 306 Rhuedue, which similarly have been grazed by sheep in recent times and have benefited from rudimentary control measures so far as the proliferation of bracken and rushes is concerned, is that the middle and upper parts of Croft 305 are afflicted also by some large and unsightly clumps of moss. The Applicant in 2007/8 had spread lime sourced from the Torrin quarry on the Isle of Skye, but he had not subsequently repeated that exercise, and he readily accepted that the croft land was now badly in need of more. The encroachment of moss, by our own rough and ready reckoning, affects somewhat less than 15% of the overall grazing area. That said, however, the condition of Croft 305 compares favourably to that of crofts nos. 307, 308 and 309 Rhuedue lying further to its south west. These crofts conveyed the impression of having been abandoned completely to bracken and other invasive species over many years.

[22] Once it was fully enclosed, the Applicant introduced livestock onto Croft 305 in 2003 in the form of Highland cattle. For some eight years in the period between 2003 and 2011 (excepting 2007), the Applicant maintained on Croft 305 for at least part of the year either a couple of heifers or cows with calves at foot which he sourced from Applecross Estate. In the first year, it was two heifers which he purchased from Applecross Estate, looked after over the summer and sold back to the breeders in the October of that year. In subsequent years, as we understand his evidence, the Applicant did not actually purchase the cattle, but either summered or wintered them on the croft on behalf of Applecross Estate. The Highland cattle were sometimes released onto the Wester Slumbay Common Grazings in which the Applicant had one of the twenty-four shares. When he was wintering the Highland cattle, he would put out for them fodder supplied by Applecross Estate. No money changed hands: as the Applicant explained it, he wanted stock on his croft and Applecross Estate wanted to reduce the number of animals on their land. In the year of the suspected foot and mouth outbreak in Surrey, the Applicant had been preparing to show the two Applecross Estate heifers he was boarding at the Oban breed show, but this plan was frustrated by the movement restrictions which led to its cancellation.

[23] In 2013, five Herdwick wedders belonged to Mrs Suzanne Jones took up residence on Croft 305. Mrs Jones owned a holiday house in the Lochcarron area and had become friendly with the Applicant and his wife. Mrs Jones was in the process of selling up her hill farm in the Lake District, with a view to retiring to Lochcarron, where she had acquired another property, the house and croft known as Hillside, to which she eventually moved on a permanent basis in January 2016. The original arrangement was that the five Herdwick wedders remained in the ownership of Mrs Jones, and she tended to them whilst in residence in Lochcarron, paid for any supplementary feeding they required and for their shearing and worming, but the Applicant looked after them the rest of the time. In a reciprocal arrangement, Mrs Jones looked after the Applicant’s pet dogs when he and his wife were away on holiday. The original five Herdwick wedders were joined in 2015 by five more from the same source. The sheep had all been born on the side of Wetherlam, the most northerly of the Coniston Fells, an inhospitable environment of brash (loose, broken rock) and scree. They were used to foraging on poorer quality grazing and would eat moss and rushes. Mrs Jones had no concerns about the suitability, for their needs, of the grazing on Croft 305, which was similar to that to which they were accustomed in Cumbria, but she acknowledged that it would not have supported a flock of North Country Cheviots or Suffolks stocked at the same density. It was a matter of “horses for courses.” On 16 September 2017, the Applicant purchased, or at least purported to purchase, at a cost of £200, according to an invoice lodged in process [Production 37] the ten Herdwick wedders from Mrs Jones, who had developed severe osteoporosis and transient global amnesia, a temporary disorder of the memory, and whose uncertain state of health had caused her to question her ability to look after the sheep herself. The Applicant became their registered keeper [Production 36] as from 19 September 2017. He pays the costs of their supplementary feeding in the period between the beginning of November and the end of April. He does not release them out onto the Wester Slumbay Common Grazings, because there is no fence separating the Wester Slumbay from the Easter Slumbay Common Grazings, and the sheep are not hefted. Only three of the shareholders in the Wester Slumbay Common Grazings (of whom he is one) own any livestock. It was part of his agreement with Mrs Jones that the ten Herdwick wedders would never be sent off on a wagon to market, because of her concern that their likely fate would be an onward sale for Halal slaughter.

[24] The Applicant admitted that, so far as he was concerned, the sheep were no more than pets, but the reason why Mrs Jones had retained them when she was preparing to move permanently to Lochcarron, was for the role they played in her training of sheepdogs. Mrs Jones had, for many years, bred, owned and trained Border Collies for both shepherding and search and rescue purposes at home and abroad. Border Collies that had been mistreated or abandoned were referred to her by welfare organisations like the RSPCA for retraining and rehousing. The ten Herdwick wedders were an integral part of that retraining process. They were what she referred to as “sticky sheep”, well suited by reason of temperament to stand up to the attentions of sheepdogs in the early stages of training. The sale of Mrs Jones’s Cumbrian property took longer to finalise than had been anticipated, with the hill farm ultimately being sold in lots, and during that long-drawn out process, Mrs Jones would, on her visits to Lochcarron, bring with her from Cumbria in the Land Rover a dog she was training or a litter of puppies, with the object of getting the animals accustomed to road journeys. Once arrived, she would encourage them to take an interest in sheep by introducing them, over a period of weeks, in the company of her working dog, to the Herdwicks on Croft 305. Mrs Jones spoke to having sold two working dogs trained up by her to the Isle of Skye, and another to Beauly. The Respondent, in the course of his evidence, referred to a rumour, doing the rounds in the locality, that Mrs Jones had sold a sheepdog to the Isle of Skye for a price of some £4,000, prompting from the area of the public gallery in which Mrs Jones was sitting some noises off, from which we picked up, not a denial, but the question “Who told you that?” If, indeed, the ten Herdwick wedders made a material contribution to such an outcome, it would make them just about the most profitable sheep in the North West Highlands, albeit that such profit would have accrued to Mrs Jones rather than the Applicant. Be that as it may, it was our impression that, no doubt for health reasons, Mrs Jones has been scaling back her dog training operations in recent times, and the ten Herdwick wedders, by now some eight years old, are essentially also in a state of retirement from their former careers. Under cross-examination, the Applicant readily accepted that he was not, so far as his use of Croft 305 was concerned, engaged in an economic exercise, and that there was a parallel, in that regard, between the arrangements he had entered into initially with the Highland cattle and more recently with the Herdwick wedders: whilst he would not have become a vet had he not had an interest in and affection for animals, the livestock had been on Croft 305 for land management purposes only, to keep the vegetation under control. His future plans for Croft 305 included erecting deer fencing around the top part and planting trees thereon, a project in connection with which he was receiving advice from both a son who was an arboriculturist and outside consultants.

The events leading up to the making of the present application

[25] The Applicant first approached the Respondent informally to advise that he was wanting to buy his croft on 5 October 2015, in response to which, he testified, the Respondent “asked me to go ahead.” Correspondence lodged on behalf of the Applicant in process disclosed that his agents, Messrs MacPhee & Partners, first wrote to the Respondent’s agents, Murchison Law, formally advising of their client’s wish to acquire a title to Croft 305 and asking for a statement of the terms and conditions on which the Respondent, as landlord, would be prepared to sell it to him, on 12 November 2015 [Production 2]. Neither it nor a follow-up letter dated 30 November 2015 [Production 3] elicited any response from the Respondent’s agents. A further chasing letter to them dated 29 January 2016 [Production 4] provoked a response from the Respondent’s agents dated 2 February 2016 [Production 5] advising that “At the present time the estate is taking valuation advice on this and associated matters. This is expected fairly shortly and we will respond to your correspondence on substantive basis thereafter.” No such response from the Respondent’s agents was forthcoming and on 21 April 2016 and again on 17 June 2016 the Applicant’s agents emailed them for an update on progress [Productions 6 and 7]. At some point in the Spring of 2016, the Respondent visited the Applicant at his home, telling him, according to the Applicant, that he was “one of my better crofters”, and that he would “put you at the top of the list.” Notwithstanding that assurance, neither of the Applicant’s agents’ emails having provoked a response from the Respondent’s agents, the Applicant’s agents resorted once again to letter form, writing to the Respondent’s agents on 16 July 2016 [Production 8] asking them to confirm that they were instructed by the Respondent and if they could advise whether they were now in a position to propose terms for the Applicant’s acquisition of his tenancy of the croft land.

[26] It was not until 29 August 2016 that the Respondent’s agents provided the Applicant’s agents with a substantive (or indeed any) response to that series of communications. In their letter of that date [Production 9], it was narrated that the Respondent had recently inspected Croft 305, and had “noted that the substantial part of the same has not been cultivated. There were at the time of his inspection only six sheep grazing the croft.” The letter continued that:

“As your client will be aware, our client is actively engaged in the process of ensuring that all crofts are cultivated. The Estate has a number of young potential crofters who have employment in the area and have requested that the Estate make available crofts for them to work in their spare time. The Estate have also been approached on a number of occasions with regard to specific business plans which disclose proposals to actively and profitably work such land.

The Estate policy is not to sell Estate land where the crofter is not complying with his duties under and in terms of the Crofters (Scotland) Act 1993.”

The letter concluded by asking for the Applicant’s proposals for complying with his duties under and in terms of the crofting legislation. The Applicant professed himself to feeling “shattered” when he received that response. Prior to that letter, there had never been any suggestion that his landlord considered him to be in breach of his statutory duties. Further correspondence passed between the two firms [Productions 10-14], in which the Applicant’s agents sought to refute the Respondent’s agents’ claim that their client was in breach of his statutory duties, before the present application to the Land Court was made in April 2017.

[27] Little of the evidence related in the previous nine paragraphs, derived principally from the testimony of the Applicant and Mrs Jones, but supplemented in places by what we ourselves saw during the course of our two visits to Croft 305, is actively disputed by the Respondent. The principal exceptions are that Mr Murchison, in cross-examination of the Applicant, indicated that the Respondent did not accept that, at his meetings with the Applicant, he had made the “top of the list” and “one of my better crofters” remarks that the Applicant had attributed to him, and in his closing submission, he was inclined to cast doubt on the genuineness of the purported sale of the ten Herdwick wedders by Mrs Jones to the Applicant that it was claimed took place on 16 September 2017, some five months after these proceedings were commenced on 13 April 2017. We shall return to that issue at a later point in this Note, but for present purposes, it is enough to say that the evidence we heard presented a fairly coherent and consistent account of what the Applicant has done to and with Croft 305 since he took on the tenancy, and of the approach he has adopted in seeking to meet his new statutory obligations as the crofter of Croft 305, of the existence of which he was well aware, since they were passed into law by the Scottish Parliament. One of the issues for us to determine in this case, then, is how the relevant law falls now to be applied to these facts, and more particularly whether the Applicant’s activities, as so narrated, amount to compliance with those statutory duties so far as Croft 305 is concerned.

The evidence of Gillian McKnight

[28] In the report she compiled after she visited Croft 305 at the request of the Respondent on 13 November 2018 in order to “assess the condition of the croft and its management”, Ms McKnight misstated the number of sheep then present thereon as eight rather than ten. She considered that the croft land would be ranked as Class 5.2 (Improved Grassland) according to the Macaulay Land Capability for Agriculture (LCA) classification. Land in this class has the potential for use as improved grassland, but a “range of different limitation types” could restrict that potential. Those limitations could include “climate, slope, wetness, and often a heterogeneous pattern of conditions that render even occasional cultivation unsuitable.” Ms McKnight noted in her report that some of the croft overlay shallow soils with exposed rock where pine trees had been planted. The remaining ground was damp with a preponderance of heath moss (Hylocomium) and hair moss (Polytrichum), some semi-natural fine grasses (bents and fescues), and patches of soft rushes on wet flushed areas. She considered that the amount of moss in the sward “indicated low fertility, damp, acid, compacted soil and/or overgrazing”, and suggested that the land “has not been improved for agriculture in recent years (at least 12 - 15 years).”

[29] Ms McKnight opined that in its present condition, without a seasonal grazing break, Croft 305 would support a very low stocking rate of approximately three sheep year round, with little supplementary feeding. A higher stocking rate would lead to “further deterioration of the grassland, reducing vegetative rooting depth and increasing mosses and rushes.” The reason for this was that sheep are selective grazers, preferentially choosing to consume grasses and herbs, while avoiding mosses and rushes, thereby grazing out grasses and encouraging less palatable plants to dominate. Under continuous grazing pressure, without a break that would allow the grasses and other plants to recover and regenerate, and without soil nutrition and management, grasses and herbs will diminish. With agricultural improvements made to the accessible parts of the croft, including over-seeding, applications of lime (as indicated by regular soil testing) and frequent fertiliser applications to enhance productivity, “the croft could potentially carry twice as many sheep year round, without the need for much supplementary feeding” (i.e., on Ms McKnight’s own figures, an increase from three to six). The grazing capacity of Croft 305 could be tripled (i.e. from three to nine), if, in addition to the measures already suggested, the common grazing were to be utilised between June and October, affording the land the benefit of a grazing break, which would encourage grass roots to grow deeper and strengthen the sward, providing the potential for a hay crop or better grazing in the autumn.

[30] In her oral testimony, Ms McKnight confirmed her view that historically, the croft land of Croft 305 would have been improved, but that, as here, where improved land had not been maintained, it would revert to its previous unimproved state. This was an area of high rainfall, where nutrients leached quickly out of the soil. Whilst she was not advocating any use for the croft land other than grazing, she considered that the quality of the grazing could be improved, principally by the application of lime. She claimed to have identified bare patches that were indicative of overgrazing, upon which vegetation needed to be re-established if soil erosion was to be avoided. She accepted that, as Mrs Jones had stated, hardy hill sheep like the Herdwicks would eat moss, but moss was not a high nutrition plant, and her point was that if the sward were better maintained, the amount of supplementary feeding the sheep received could be reduced.

[31] Under cross-examination, Ms McKnight, when asked about the rushes on the Croft 305, expressed the view that their presence was indicative of poor drainage as well as the acidity of the soil. In addition to the application of lime and topping or spraying of existing rushes, the drainage of the croft would require to be improved if the rushes were to be eradicated. Ms McKnight’s report had contained no costings for the measures she was proposing to enhance the grazing capacity of Croft 305. She acknowledged that it might be more cost-effective for a crofter in the position of the Applicant to keep a hardy breed of sheep such as the Herdwick on the croft and buy in feed rather than incur the expense of improving the quality of the grazing and/or taking a hay crop, but explained that what she had been pointing out was that continuous grazing by the Herdwick sheep of the croft since 2015 “will have a deteriorative effect”, and that to avoid soil erosion, other management practices required to be put in place. She assented to the proposition that in order to prove that such deterioration had occurred, she would require to return and carry out testing in five years time: it was our overall impression of her evidence that, so far as the longer term effects, such as soil erosion, of the overgrazing she had diagnosed, were concerned, it was her position that these had yet to manifest themselves; her report was anticipating future problems if the Applicant did not alter his approach to the management of Croft 305. When it was put to her that the costs of undertaking the measures she was advocating would be disproportionate to the minimal increase in stocking capacity they would achieve, her answer was not to dispute that proposition, but rather to remind her audience that there were also responsibilities associated with possessing croft land.

Dr Rebecca Dean

[32] Dr Rebecca Dean has a BSc in Environmental Science and a PhD in Natural Systems Science. She has lived in Lochcarron for some 27 years, and three years ago, she and her partner, who both work full-time, she as an Environmental Manager for the Scottish Salmon Company, purchased a house, “Kiln Brae”, in the village, where they live with their teenage sons. She subsequently had obtained from the Respondent the tenancy of a small croft at Portnacreich, situated just along the public road from her house. The irregularly shaped, south-facing Portnacreich croft, which extends to 1.3 hectares or thereby, is situated below the public road. It is bisected by a tarmacadammed private road that serves three cottages situated below it at the waterside, one of which, we infer, was formerly the dwelling-house on or pertaining to the croft, and the site of which has been decrofted. The bisecting road renders the croft readily accessible along its, for the most part, gently sloping length. Although the fencing around the croft is in a generally very poor (and far from stockproof) state, and the land itself was in places wet and moss- and rush-infested, it was also obvious to us from our visit to the Portnacreich croft on 23 February 2018 that it had, as a croft, far more potential for cultivation than Croft 305. Quite apart from the fact that it was lower lying and, in consequence of its topography, much easier to work, it was evident that it was land, the better drained parts of which had, in the relatively recent (say within the last twenty years) past, been used to grow root crops, as evidenced by the drills in which those crops had been sown, still visible under the grass. More recently, we infer in the period since Dr Dean took on the tenancy, there have been pigs enclosed on areas within the croft, presumably for ground clearance purposes.

[33] We learned during the course of her testimony that Dr Dean had aspired to obtain a croft for many years, and had written to both the Respondent and to the Crofters Commission (as was) to inquire as to whether there were available crofts in the area, but been advised that all the tenancies were held by someone, notwithstanding that many crofts were obviously not being used and indeed appeared to have been abandoned. Although at one stage in her testimony, she referred to living in a village with an ageing community, she also spoke to there being lots of younger people in Lochcarron who would love to be able to make use of such land, but “no-one gives up a tenancy” voluntarily. She had been permitted to use the Portnacreich croft informally before the Respondent had succeeded in recovering it from a tenant in breach of his statutory obligations (see Application RN SLC/56/15), and in taking on the tenancy, she had contracted out of the “right to buy” provisions of the 1993 Act, the removal of which, she opined, would be one of the key ways of getting crofts back into production. Albeit that she had many plans for the use of the Portnacreich croft, she was keen to emphasise that this was very much the start of a long term project, and that it would take her a considerable time, working before or after work and at weekends, to get it back into a productive state. She was not, for instance, in a position immediately to re-fence the croft, but would have to do so in stages as and when she could afford it. Whilst she did not want to lose money in the endeavour, she was clear in her evidence that making money was no part of her motivation in acquiring the tenancy of the Portnacreich croft: her reward would come from seeing the land restored to a healthy, productive and environmentally friendly condition. She spoke to the land she now had being insufficient for what she would like to do, such as having bees, growing herbs and berries, and maintaining areas of native woodland and wild pasture. To achieve her target of being able to work full-time as a crofter, she would need five, six or seven times the amount of land the Portnacreich croft afforded her, and she would be keen to acquire further croft tenancies.

The Respondent’s evidence

[34] Lochcarron Estate, extending to some 5,000 acres, has been in the Respondent’s family since 1945, and the Respondent became the owner through inheritance in or about 1990. The Respondent is a chartered accountant by profession. He pursued a career around the world in shipping and containerisation, from which he retired in 1984, taking up residence with his wife, an artist, at Brynaport, Kishorn. Having realised the potential of the sea lochs for the purpose, the Respondent thereafter set up and developed a highly successful business, with a multi-million pound annual turnover, producing smoults for the salmon farming industry, before, as he put it, “selling out to the Norwegians” a few years ago. The Respondent and his wife have also engaged in various tourism-related businesses in the locality, with the latter currently offering residential painting courses from their home.

[35] The Respondent explained that Lochcarron Estate was today pretty well entirely a crofting estate. There were just over one hundred crofts in total, distributed amongst seven crofting townships, with seven common grazings. The crofts were small, the average size being approximately 2¼ hectares; as such they were not economically viable stand-alone units. In his estimation, only about seven of the one hundred crofts were fully worked by active crofters; some others carried a token number of sheep. Out of the seven common grazings, only two were used. The fence which formerly separated the Easter and Wester Slumbay Common Grazings was no longer there, so the two common grazings had effectively joined together, with only one crofter making use of that area, which had a souming of over one hundred sheep. Where he himself lived at Kishorn, only the two crofts he and his wife had were being worked. The condition of the crofts on Lochcarron Estate was in general very disappointing: most of the crofters were not complying with their statutory duties to cultivate and maintain their crofts, as would be apparent to the Members of the Court were they to take a run around it.

[36] The Respondent strongly believed that crofting should be conducted for profit, but he acknowledged that individual crofts of 1½ or 2 ha could not possibly be profitable. As he had argued in letters to the local press [see, e.g., Production 31], crofters needed to pool their land resources and work on a collaborative basis in order to achieve economies of scale and increase productivity. There were great opportunities for crofters who banded together in this manner to market what they had produced under a Lochcarron brand, but bringing such a situation about was very difficult, because each individual crofter very jealously guarded his own tenancy.

[37] The Respondent was asked about the steps he had taken with a view to securing the enforcement of crofters’ duties. He explained that where he became aware that tenants were in breach of their residency duty, he would report them to the Commission; the Commission would write to the absentee, ask them if they were resident, and if not, were they coming back. After that, it was up to the Commission. He himself would act where the opportunity arose, and he spoke to a number of instances of action he had taken in recent years against absentee tenants. One such initiative had resulted in an absentee moving back to take up residence on the croft next door to Dr Dean’s in Portnacreich, and another had freed up a croft in Ardaneaskan for re-let, but he explained that it was more difficult for him to take action against tenants who were in breach of their duties to cultivate and maintain, because in order to prove breach, he would require to obtain expert testimony. Asked if he had ever known the Commission to take steps in relation to neglect, he replied that the Commission, with a staff of 50 based in Inverness, did not have the resources to manage over 18,000 crofts. When asked why he bothered, given that there were many landlords in the Highlands who paid no attention to such breaches of duty by their tenants, he replied that just as there were absentee crofters, there was such a thing as absentee landlords. He was appalled that people with good land were not working it, and he considered that he had a responsibility to the local community to encourage more productive land use. He had “a list a mile long” of young applicants for croft tenancies, but it was extremely difficult to remove crofts from the existing tenants: the recent amendments to the Crofting Acts had “large loopholes.” A re-invigorated crofting sector would bring wider benefits to the community in and around Lochcarron, boosting the local economy and creating employment opportunities.

[38] When asked about how he responded when crofters approached him about purchasing their crofts, the Respondent explained that his usual practice would be to ask them for a business plan, because he wanted to know why, given that the rents on Lochcarron Estate had not been increased for 50 years, and were at the level, of £9, £10 or £11 per year, they perceived any need to buy. He was seeking reassurance that they intended to croft properly, in compliance with the statutory duties, and were not merely speculating in the capital value of the land. It was very obvious that one of the reasons for a crofter to exercise the right to buy (at crofting value) was because he could sell on for a substantial profit after the expiry of the (now ten year) clawback period. The Respondent wanted to be able to make crofts available to keen crofters selected by him who would work together with a view to making profit in accordance with the philosophy he had expounded, and when a croft became available for re-letting to such a person, he would charge only a nominal sum for the tenancy. His policy then was that he would sell to crofters who were in compliance with their statutory duties, but not to those crofters who were in breach. That policy would be totally undermined if he were to be required to sell to crofters in breach of their statutory duties. The Respondent did, however, recognise that once a croft had been sold on by a crofter who had been complying with the statutory duties, there was no guarantee that the purchaser would follow suit.

[39] Asked by Mr Murchison what he did when he first learned that the Applicant wished to purchase Croft 305, the Respondent advised that he always referred such inquiries to his solicitor, and in this case, having known the Applicant for a long time, he told him to go on and apply. He volunteered that he had not then been aware of the condition of Croft 305. He was then asked by Mr Murchison, firstly whether it would be his usual practice to ask for a business plan, and, after he had answered that question in the affirmative, whether he had asked the Applicant for a business plan, to which he again answered in the affirmative, and added that he had never got one: “I would never sell without a business plan.” We would note at this juncture that there was no mention of the “business plan” element of the Respondent’s policy in his pleadings, and nor was it at any stage put to the Applicant when he was in the witness box that such a request had been made to him. The letters from the Respondent’s agents to the Applicant’s agents after the Applicant intimated to the Respondent his desire to purchase Croft 305 contain no reference to, still less any request for, a business plan. The Respondent, in answer to the question whether he had gone and walked round Croft 305 at any stage, spoke to having done so in the spring or early summer of 2016. It was then that he observed that what he referred to as the right of way to Croft 305 had been blocked by the new pole barn/garage, the gable ends of which the Applicant subsequently removed to restore the ability to take access to the croft land of Croft 305 along the west side of the decrofted house site. The Respondent’s impression of the state of the croft land of Croft 305 upon inspection was that it was poor (although under cross-examination he conceded that on the spectrum of levels of neglect on Lochcarron Estate, Croft 305 was at the lower end); he also expressed surprise that the Applicant’s vegetable patch extended into the croft land.

[40] Cross-examined by Mr Benfield about his general approach to the enforcement of statutory duties, the Respondent acknowledged that it was essentially reactive rather than proactive. Reminded that, as landlord, he had the option, where a crofter was in breach of the statutory duties, of making an application to the Land Court under section 26 of the 1993 Act for an order terminating the tenancy, declaring the croft to be vacant and for removal of the tenant from the croft, the Respondent explained that there were too many crofters in breach for him to be in a position to take such action against all of them: he had neither the time nor the money to do so. Otherwise, his only options were to exhort the crofters themselves or to go to the Commission, who had so many other cases on their hands and who, in any case, “lean over backwards to listen to the other side.” Here, the Applicant had “pushed the button” by applying to purchase his croft; in so doing he had practically asked the Respondent to look at his croft. In another instance, an application by an absentee crofter for consent to sub-let his croft had prompted the Respondent to instigate proceedings for removal. Mr Benfield pointed out that after purchasing the croft, an owner-occupier crofter was, by virtue of section 19C(2) of the 1993 Act, subject to the same statutory duties as a tenant, and the Commission equally were under a statutory duty to investigate breaches of duty by an owner-occupier crofter brought to its attention by the persons identified in sections 26A(3) of the 1993 Act, being (a) a grazings committee; (b) a grazings constable; (c) an assessor; and (d) a member of the crofting community within which the croft to which the breach of duty relates is situated. The Respondent commented in response that this never happened in practice. While that might be the law, he was not aware that it had ever happened locally: he could not see one crofter ever complaining to the Commission about a neighbouring crofter’s breaches of duty. In essence, the Respondent’s position was that the landlord-tenant nexus afforded an important additional means of enforcement of crofters’ statutory duties, which would be rendered completely ineffectual if a crofter, in response to a landlord’s complaints about his breaches of statutory duty, could stymie enforcement action at the instance of the landlord by insisting on the landlord selling the croft to him. The Respondent recognised that, as landlord, he could only promote, not enforce, his preferred model or vision of crofting, based on collaborative working amongst tenants, and he expressed his regret that he was not doing enough to encourage this, pointing out that he derived no income from it. That said, he had, only the previous week, attended a common grazings meeting at which he had inquired as to what was happening. He had been told in the past that landlords had no right to attend such meetings, which he thought ridiculous.

[41] In the later stages of the Respondent’s cross-examination, we learned something more of the “specific business plans” of prospective crofters to which the Respondent’s agents had alluded in their letter to the Applicant’s agents dated 29 August 2016. In May 2017, after the present proceedings had commenced, the Respondent had put forward to the Applicant the proposal that if the Applicant were to renounce the top part of Croft 305, the Respondent would be prepared to sell him the bottom part “as a backdrop to his garden.” This proposal was advanced by the Respondent as an element of a wider scheme the Respondent was in the process of putting together whereby the upper part of Croft 305 and the neighbouring crofts to the west, nos. 306 and 307, would be taken back in hand and made available for re-let to Gregor Black. The upper parts of the three crofts might then be united into a single productive unit (the legal mechanisms by which this might be achieved were not explored in evidence) to be farmed for profit through the medium of a company. According to the Applicant, the Respondent had initially indicated to him that the business plan behind this proposal contemplated that the upper parts of the three adjacent crofts would be used for keeping pigs, with a view to producing home cured pork, to be marketed under the “Lochcarron Pork” brand, but it emerged during the evidence of the Respondent himself that the plan had changed, and now involved the raising of turkeys. There was some confusion in the evidence as to precisely how far advanced the Respondent’s scheme for getting crofts nos. 306 and 307 back in hand were, and it was evident from the scornful reaction on the public benches when the Respondent was speaking about it that its implementation does not command universal support in the locality.

[42] It was put to the Respondent by Mr Benfield that there would be no hardship to him as landlord or detriment to the interests of sound management of his estate if the Applicant were to be permitted to purchase his 1.3 ha croft. It would not inhibit the Respondent from taking enforcement action against other crofters in breach, in respect of which the Respondent always had the possibility of recourse to the section 26 termination procedure. The Respondent emphasised that he did not want to have to take lots of cases through the Land Court. In re-examination, Mr Murchison elicited from the Respondent that he had succeeded in deterring some ten or so would-be croft purchasers by reference to his policy of not selling to those tenants who were in breach, but we were provided with no corroborative detail of these dealings. If he were to be successful in these proceedings, it would be helpful to his estate management, but if he were to fail in resisting the Applicant’s application, it would be detrimental thereto. The Respondent also explained in re-examination why he thought it was important that crofts were worked with a view to profit; without such a profit element in view, there was no incentive on the part of the crofter to invest money in the croft. In answer to questions from the Members of the Court, the Respondent confirmed that he had received no complaints from other people about the condition of Croft 305. It also emerged that, since becoming landlord, he had agreed to sell some six crofts to their tenants: some of these crofts, he explained, were very small, and of no agricultural value. He had never received a business plan from a prospective purchaser, the request for such having been enough to cause them to back out of pursuing a purchase. He was also far advanced in implementing a plan to recover and amalgamate areas of croft land at Ardaneaskan for the development of a pig rearing business in collaboration with Ken Black, the Chairman of the local common grazings committee, his son Gregor Black, and Jamie Seel.

Our inspections

[43] The description of Croft 305 set out in paragraphs [19] –[21] above is informed by what we saw in the course of our inspections, the first when it was under snow in December 2017 and the second in much more clement weather conditions in February 2018. Our observations of its state do not differ materially from those of Ms McKnight earlier, although we were not persuaded that there was here obvious evidence of over-grazing. Whilst the lower part of Croft 305 was more tightly grazed than its upper reaches, that was only to be expected, given the time of year, with the ten sheep tending to congregate there on account of the provision by the Applicant of supplementary feeding, but even then, we saw little sign of undue poaching of the ground. The sheep were permitted freely to access part of the agricultural shed for shelter, and gave every impression of being well cared for, to the point of being pampered. Whereas the lower part of Croft 305 was bare of rank or ungrazed grass, there was some such grass on the higher and more exposed upper part. We noted the presence on the upper part of the croft of bundles of hand-pulled bracken, in confirmation of the Applicant’s evidence that he followed such a practice. The fencing was in a sound and stock-proof state of repair.

[44] Whilst we agree with Ms McKnight, having had the opportunity ourselves to inspect Croft 305, that the various measures she advocates by way of “agricultural improvements to the accessible parts of the croft” would have the effect of increasing the quantity and enhancing the quality of the grassland, the question which her report does not address is whether such expenditure would make economic sense. In suggesting that with over-seeding, applications of lime (as indicated by regular soil testing) and frequent fertiliser applications, Croft 305 could “potentially carry twice as many sheep all year round, without the need for much supplementary feeding”, as she put it in her report, she was starting from a stocking rate of three sheep (the number she contends Croft 305, in its present condition, will support year round without a seasonal grazing break and with little supplementary feeding) and positing an increase to six. To incur the costs associated with the measures Ms McKnight was recommending, which we estimate would run initially into four figures, for the “benefit” of increasing the stocking rate from three to six would seem to us to be a somewhat quixotic venture.

[45] We have already adverted, at paragraph [21] above, to the severely neglected state of the crofts nos. 307, 308 and 309 beyond Croft 305. In the interests of completeness, we would observe that Croft 305’s immediate neighbours, nos. 304 and 306, conveyed the impression of being in marginally better condition from an agricultural perspective. When we visited Rhuedue in February 2018, there was a flock of sheep in croft no. 306 and the gate onto the Common Grazings had been left open to afford those sheep access onto the hill ground, should they wish to take it. The hill ground above Rhuedue rises steeply behind the crofts, and we were struck, during our subsequent divagation around the coastline of Lochcarron Estate to Ardaneaskan, and subsequently, having returned to Lochcarron, over to Ardarroch and Achintraid, that the terrain over which the various Common Grazings extend, being generally very steep, rocky, and in places extensively wooded, must be very difficult to gather. We accordingly are not surprised that, with the services of good hill men with dogs at a premium in the West Highlands these days, more use is not made of this resource by the local crofters, particularly now that the agricultural subsidy regime is no longer based on headage and offers crofters little incentive to increase stock numbers.

[46] Our inspection in February 2018 also took in a visit to Dr Dean’s croft at Portnacreich (the description of that croft contained in paragraph [32] above reflects our impressions of it), during the course of which we met the tenant of an adjoining croft, to whom passing reference had been made by the Respondent in the course of his evidence, as an absentee who had been prompted to return to take up residence on the croft as a result of his enforcement efforts. We travelled on to the village of Ardaneaskan, to which the Respondent had also referred in his evidence, and which he had urged us to visit as an exemplar of the fruits of his efforts to encourage active crofters. In Ardaneaskan, eight out of the ten crofters were not active and had refused to contribute to the cost of fencing part of the common grazings, as proposed by one of the new crofters introduced there by the Respondent, notwithstanding that 80% grants for such fencing were available. Ardaneaskan is a small village located amidst breath-taking scenery on the north side of Loch Carron. The houses, old and new, in the village have been erected below the public road on a narrow strip of fertile land that runs around the shoreline. The verges of the public road serving the houses are mowed and maintained in tidy condition by one of the local residents, a fact which drew from the Respondent during his evidence a dismissive comparison with suburban Surrey. The Ardaneaskan crofts, as we understand it, each consist of two distinct and separate parts, the lower parts being situated between the shoreline and the public road and the upper parts on a plateau or raised beach some forty metres above the public road, from which it is separated by a steep, tree-covered bank.

[47] There are areas of the croft land in between and around the houses in the village of Ardaneaskan that exhibit the effects of recent crofting activity, but regrettably, the manner in which that activity has been carried out leaves much to be desired. To take the two most glaring examples, the grassland on the lower part of the croft we understand to be no. 48 Ardaneaskan, when we inspected it, was extensively rutted (as a result of the passage over it of heavy vehicles) and poached. Parked upon it were two diggers, a caravan, a number of trailers, sundry pieces of machinery and, down at the bottom fence along the shoreline, an abandoned car, presumably now used for storage. Lying around untidily were old sheets of corrugated iron and other building materials, and various items of scrap. The part lying below the public road of the croft we understand to be no. 51 Ardaneaskan had clearly been used over the course of the preceding autumn and winter months to hold pigs. It appeared to us that the pigs had initially been enclosed within the lower half of that area, which slopes down to the shore, and then moved up onto the flatter, upper half nearer the public road. The pigs had done their work in clearing and turning over the ground, but the ground had then been left bare rather than re-seeded, with no cover or root structure to hold and retain the top soil, with the result that the top soil on the lower, sloping half had been completely washed away into the sea loch by the elements, leaving a surface made up of stones and pebbles behind it. The activities of the tenant or occupier in causing the lower half of the part of croft no. 51 Ardaneaskan below the public road to be so denuded of topsoil have severely compromised the productive capacity of that land and may well amount to a breach of the standards of good agricultural and environmental condition (similar circumstances seem to have prevailed in relation to croft no. 41 Ardaneaskan further to the west).

[48] The relatively flat plateau or raised beach upon which are situated the upper parts of the Ardaneaskan crofts is a potentially productive and useful tract of agricultural land, but it has been allowed to revert to a state of nature over a period of many years. It is badly overgrown with rank vegetation, rush-infested, and with birch saplings establishing themselves in places. The ground is boggy in parts, although old field drains on the boundaries between different crofts are still extant and carry some surface water away. The recent activity which has taken place on this part of the Ardaneaskan croft land once again involves pigs. We found a sow and a boar enclosed by a temporary electric fence within an area of ground which, by our reckoning, also formed part of croft no. 48 Ardaneaskan. It was evident that pigs had similarly been enclosed within other parcels of land on the plateau in recent months. The pigs had here, as they had done on the croft land below the public road, churned up the ground and divested it of vegetation, but here too, having been cleared, no steps had been taken to seek to re-establish grass or any other growing crop on the ground so cleared. Evidence of implementation of any proper scheme for soil management was once again conspicuous by its absence. Access to the pigs’ temporary enclosures from the track running from west to east along the back of the plateau from the entrance off the public road had been taken across the grassland by tractors and quad bikes repeatedly over an extended period through the autumn and winter months, with the result that the ground had become so badly rutted in places as to have been turned into a quagmire, and rendered now impassable either by vehicle or on foot. The, in some cases irreparable, damage to the soil structure of the croft land that we witnessed both below the public road and on the plateau above it in Ardaneaskan is no advertisement for the agricultural knowledge and skills of the new active crofters the Respondent professes himself to be so keen to encourage.

Discussion

[49] As has been noted, parties’ representatives favoured us with extensive written submissions. Rather than attempt to summarise the entire contents of those lengthy documents, we shall instead embark on our own discussion of the various issues that remain outstanding, taking in the relevant parts of parties’ respective submissions on those issues as we go.

Application of statutory duties to common grazings

[50] We shall commence this section of our Note by mentioning briefly an issue that arose at the stage of closing submissions, having neither been adverted to in the pleadings nor figured large in the evidence, namely that of whether the statutory duties imposed by sections 5AA, 5B and 5C of the 1993 Act (and in particular the duties not to misuse or neglect and to cultivate and maintain) apply to common grazings in which a crofter has a grazings share. Mr Murchison, for the Respondent, pointed out that section 3(4)(a) of the 1993 Act provides that for the purposes of the 1993 Act, any right in pasture or grazing land held or to be held by the tenant of a croft, whether alone or in common with others, “shall be deemed to form part of the croft.” Whilst acknowledging that there was “no completely coherent basis which allows the word ‘croft’ when found in different provisions of the [1993] Act to be treated consistently one way or the other in relation to this particular point of whether the word includes a grazings share”, he argued that the better view, as being more in line with the purpose and intent of the legislation, was that the statutory duties might apply to such rights. It might be regarded as significant, in this context, that section 5C(2)(a) of the 1993 Act extended the duty to cultivate the croft or put it to another purposeful use to “every part of the croft which is capable of being cultivated or put to another purposeful use.” To hold, as the Applicant maintained, that a crofter has no duties under sections 5AA, 5B and 5C in relation to a share in the common grazings, would be an unattractive outcome, in that it would leave a fairly significant lacuna in the legislation, with consequential difficulties for landlords and the Commission in securing the use of large areas of common grazing land.

[51] Mr Benfield, for the Applicant, appeared to accept that if the Applicant were to be authorised to purchase his croft, with the grazings share pertaining thereto becoming a “stand alone” deemed croft, then the statutory duties of tenure would apply thereto, but he contended that the tenant of a croft with a grazings share, whilst entitled to use the common grazings in accordance with the grazings regulations applicable thereto, was not bound to do so. In terms of section 48 of the 1993 Act, it was the duty of the grazings committee to maintain the common grazing and to provide, maintain and, if necessary, replace the fixed equipment, to carry out works for its improvement and to make and administer common grazings regulations with respect to the management and use of the common grazings. He drew attention to Regulation 9 of the Wester Slumbay Common Grazings Regulations [Production 25], which provides that “no shareholder shall keep on the grazings any stock in excess of his souming”, but that in the event of a shareholder not being able to maintain the full souming, “the Committee shall have power to extend permission to such other shareholder or shareholders as they may determine to graze stock thereon in excess of their respective soumings to the extent of such deficiency.” He submitted that in the context of the statutory duties, the word “croft” as it appears in sections 5B and 5C of the 1993 Act could refer only to the subjects in tenancy and not to ancillary or pertinential rights of grazing, because a crofter had no obligation to use his common grazings entitlement and no right to act individually with regard to the maintenance or improvement of the regulated common grazings.

[52] As Mr Benfield pointed out, there are obvious theoretical and practical difficulties in applying the statutory duties set out in sections 5B and 5C of the 1993 Act to common grazings. Mr Murchison readily acknowledged the existence of those difficulties, but advocated a purposive approach to construing the legislation that would avoid a result that excluded common grazings from the scope of the duties. On the approach we have taken to this case, it is unnecessary for us to express a concluded view on these matters, as not being essential to our decision, and so we shall reserve our opinion thereon. In adopting that course, we take into account also that no notice was given in advance of the hearing in the Respondent’s answers that he would be founding on the Applicant’s alleged breaches of duty in respect of the Wester Slumbay Common Grazings in which he held a share, and that, consequent thereon, the condition of those common grazings, and the extent of the Applicant’s responsibility (if any) for any breaches of sections 5B and 5C of the 1993 Act that might be identified in respect thereof, on the hypothesis that those duties have any application in relation thereto, were not explored in evidence.

The Respondent’s policy

[53] We observed in paragraph [3] above that in order to succeed in making out his case for refusal of the Applicant’s application for an order authorising him to purchase Croft 305, the Respondent would have to establish three things, the first of which was that he genuinely has and applies the policy he came to court offering to prove, namely that he would not agree to sell crofts to crofters who were in breach of their statutory duties. He would have to persuade us, secondly, that the Applicant here was indeed in breach of his statutory duties, and thirdly that were we to compel him to sell Croft 305 to the Applicant, this would undermine his policy to such an extent that this would cause him a substantial degree of hardship and be substantially detrimental to the interests of sound management of his Lochcarron Estate. We had wondered, at one stage, whether it might form a part of the Respondent’s argument that the Applicant was debarred from insisting on exercising his statutory right under section 12(1) of the 1993 Act on account of his alleged breaches of statutory duty, on the analogy of the doctrine of mutuality of obligation in the law of contract, but Mr Murchison advised that, having given some thought to that issue, he had concluded that no such argument was available to him as a matter of law.

[54] We wish to preface what we are about to say about the impressions we formed of the Respondent’s testimony about his “policy” by emphasising that we have not the slightest doubt as to the Respondent’s good faith when he professes that he is keen to encourage active crofting on Lochcarron Estate. The Respondent’s physical and intellectual vigour belie his 87 years, and his willingness to put time, effort and money into that endeavour reflect credit on him. It might be argued, against him, that as landlord of Lochcarron Estate over a period of some thirty years, he has himself presided over the decline in active crofting in the area that he now bemoans, but we think that such criticism would be unfair. The Respondent has created employment and done much for the local economy through his salmon farming company, and it is perhaps only now, having divested himself of that concern, that he has had the time to turn his fertile mind to the problem of the grossly underutilised resource, as he sees it, of so much of the croft land all around him. We entirely accept and sympathise with the explanation the Respondent proffered as to why his efforts to address breaches of statutory duty on the part of his tenants should have concentrated upon cases of long-established absenteeism, as being easier to prove, rather than on cases of misuse or neglect and failures to cultivate and maintain, where there is no definitive guidance to be had as to where the “tipping point” between compliance and breach lies (this is a point to which we shall return later in this Note). With croft rents on an estate such as this so low as to be scarcely worth the trouble of collecting, it is, frankly, unrealistic to expect landlords to pursue any more energetically breaches of statutory duty on the part of their tenants when the costs of so doing in a single contested case may dwarf the total annual rental income generated by the estate. The Respondent cannot be criticised for adopting a reactive rather than a proactive policy in this regard, and indeed, it is clear that he takes a much more “hands on” approach than most of his peers when it comes to the policing of breaches of statutory duty by croft tenants.

[55] All that said, however, we were not satisfied, on the evidence we heard, that the Respondent did have such a policy (of not agreeing to sell crofts to tenants who were in breach of their statutory duties under sections 5AA, 5B and 5C of the 1993 Act) before the Applicant approached him about purchasing Croft 305, for the following reasons:

1. There was no evidence that the Respondent’s policy was ever formalised, even to the extent of having been committed to writing; and no evidence that it was ever intimated to existing tenants or promulgated in any other way.

2. The Respondent, whose evidence otherwise was delivered confidently and with a secure grasp of detail, was studiedly vague when asked, by the Court, when he first adopted this policy, and we formed the view that he was here seeking to deflect us from pursuing that question.

3. The policy, as formulated in the Respondent’s pleadings, inherently lacked credibility, in that the fact that a purchasing crofter is complying with his statutory duties offers no guarantee that this state of affairs will continue once the purchase had gone though. A complying crofter could sell on to a purchaser who had no intention of complying with the statutory duties, just as a crofter in breach who was permitted to buy might sell on to a purchaser both able and willing to do so. In either case, once the Respondent had sold the croft, he would lose his ability to influence its fate.

4. Over the course of his evidence, the Respondent’s account of how his policy operated deviated from that which had been pleaded. We learned, for the first time, of the role in the operation of the policy of his request to would-be croft purchasers that they provide him with a business plan. We do not believe that the Respondent at any stage asked the Applicant for such a business plan.

5. It was only some eleven months after the Applicant had first approached the Respondent and spoken to him about purchasing Croft 305 that the existence of the Respondent’s policy was first divulged to him, through the medium of the Respondent’s agents’ letter to him dated 29 August 2016. We have no reason to doubt the veracity of the Applicant’s account of his prior dealings with the Respondent in connection with the proposed croft purchase and indeed, we did not understand it to be contended on behalf of the Respondent that the existence and possible application of the policy to his case was broached by the Respondent with the Applicant on any occasion before that. We accept the Applicant’s evidence that he felt “shattered” when he received the Respondent’s agents’ letter dated 29 August 2016, and that because its contents came as a bolt from out of the blue to him.

6. The Respondent, in acknowledging that he had, in the past, sold some six crofts to their tenants, explained this on the basis that they were very small crofts, of no agricultural value, with no mention of whether the tenants were then in breach of their statutory duties or not.

7. That the Respondent should, after these proceedings had been commenced, have been prepared to propose a deal whereby the Applicant might be permitted to purchase the lower part of Croft 305 if he agreed to relinquish the upper part, seems to us further to undermine the credibility of his evidence about the policy, and indeed conveys to us the impression that what was prompting him to resist the application to purchase was less his adherence to an established estate-wide general policy, and more his dawning realisation that the situation that had arisen in respect of Croft 305 could be exploited to facilitate the putting into effect of his existing plans for the neighbouring crofts nos. 306 and 307 Rhuedue.

[56] It is our considered view that the policy, to the existence of which the Respondent spoke, did not exist in any formal sense before the Applicant approached him about purchasing Croft 305. We think it only came into being subsequently and was devised as a basis for resisting the present application. We suspect that it would be nearer the mark to say that the Respondent’s actual policy is to resist selling crofts to their tenants if he can, because with more time on his hands now to devote to crofting matters, he wishes to retain some measure of influence over what is done with or on the crofts on his estate. An element in his motivation for resisting the sale of crofts to tenants is, we infer, because he possesses little faith in either the capacity or the will of the Commission to pursue breaches of statutory duty and he believes that in the absence of action by the Commission, the maintenance in place of the landlord-tenant nexus offers the only real prospect of enforcing the performance of statutory duties on Lochcarron Estate. Be that as it may, we are sceptical that lack of faith in the Commission’s efforts in respect of the enforcement of statutory duties would constitute a legally relevant defence, under reference to section 13(2)(b) of the 1993 Act, to an application under section 12(1) of the 1993 Act.

[57] It follows from our conclusion that the Respondent did not have such a policy when the Applicant approached him to inquire about purchasing Croft 305 that the questions of whether, if the Applicant were in breach of his statutory duties (an issue we shall be turning to address in the paragraphs which follow hereon), the making of an order under section 13(1)(a) of the 1993 Act authorising the Applicant to acquire Croft 305, and requiring the Respondent, in breach of his policy, to convey it to him, would cause the Respondent a substantial degree of hardship (section 13(2)(a) of the 1993 Act) or would be substantially detrimental to the interests of sound management of Lochcarron Estate (section 13(2)(b) of the 1993 Act), simply do not arise. It was a pre-requisite of making out either of those two defences to the present application that the Respondent established that he had such a policy, and for the reasons given above, this we consider he failed to do.

[58] Had we been persuaded that the Respondent had indeed promulgated and operated such a policy before the Applicant approached him about buying Croft 305, we think that potentially the strongest argument deployed on his behalf in support of that position was that if a tenant in breach of his statutory duties could thwart enforcement action on the part of his or her landlord by the expedient of making an application for authority to purchase under section 12(1) of the 1993 Act, the power conferred on a landlord to apply for an order terminating the tenancy under section 26(1) of the 1993 Act would be deprived of all its force. We must be circumspect in what we say about that issue in this Note, because we are aware that there is pending before this Court, although presently sisted, an application (RN SLC/126/17) at the instance of the present Respondent for termination of another tenancy in which an analogous issue arises (in that case, the respondent, after termination proceedings had been commenced against her, applied to the Commission for consent to assign her croft and the question of the precedence of the two competing applications, made to two different decision makers, thereby arose). For the purposes of the present application, it may suffice for us to say that the argument that if a tenant in breach could frustrate a landlord’s enforcement action by making a section 12(1) application, the landlord’s section 26(1) power would be emasculated, has no application here on the facts: there was here no suggestion of any enforcement action being taken against the Applicant by the Respondent, or indeed of any complaint by the Respondent about the condition of Croft 305, before the Applicant informed the Respondent of his wish to purchase it.

[59] Albeit that it has been held that the “loss of control” that necessarily results from the sale of croft land by the landlord is an element the Land Court may take into account in their overall assessment of hardship in the context of section 13(2)(a) of the 1993 Act (see Waugh v Thrumster Estate Limited (South Yarrows) 2006 SLCR (2) 53 at page 95), the Respondent’s own evidence, which disclosed a hitherto somewhat piecemeal and unsystematic approach to the enforcement of statutory duties, would not have been sufficient to persuade us that the making of an order under section 13(1)(a) of the 1993 Act in respect of Croft 305 would either cause him “a substantial degree of hardship”, or would be substantially detrimental to the interests of sound management of Lochcarron Estate, even had we been satisfied that he did have such a policy at the relevant time. The loss of this one small croft, the condition of which the Respondent himself conceded was at the lower end of the “spectrum of neglect”, would not in our view have had the effect of negating the Respondent’s efforts to tackle the many more manifest breaches of statutory duty on the part of crofters elsewhere on Lochcarron Estate.

Breach of statutory duty

[60] We explained in paragraph [16] above why it is not open to the Respondent in these proceedings to argue that the Applicant has neglected Croft 305 by not managing it so as to meet the standards of good agricultural and environmental condition, being the ground for establishing neglect set out in section 5B(3) of the 1993 Act. The issue of “other purposeful use” does not arise in these proceedings. The surviving issues, upon which we heard argument, were whether the Applicant was here in breach of his statutory duties under section 5B(1) of the 1993 Act not to misuse his croft, as “misuse” is defined in section 5B(2)(b) of the 1993 Act; and under sections 5C(2)(a)(i) and 5C(2)(b) of the 1993 Act to cultivate his croft and to keep it in a fit state for cultivation. Any observations we might make on these issues are, of course, rendered obiter by the conclusions we have reached on the logically prior issue of the Respondent’s policy, but in view of the general importance of those issues, and in deference to the full submissions we heard thereon, we would comment as follows.

[61] Both Mr Benfield and Mr Murchison, in their respective analyses of the relevant statutory provisions, commenced by considering the scope of the positive duties to cultivate and maintain contained in section 5C of the 1993 Act, rather than the negative duty not to misuse, by failing to use the croft for the purpose of its being cultivated, set out in section 5B(2)(b) of the 1993 Act.

[62] Mr Benfield pointed out that the definition of “cultivate” in section 5C(8) of the 1993 Act was not intended to be exhaustive (“In this Act - “cultivate” includes …”). Within the definition, the list of examples that followed the reference to the use of the croft for horticulture or for any purpose of husbandry, was itself preceded by the word “including”, making clear that the list of examples also (“the keeping or breeding of livestock, poultry or bees, the growing of fruit, vegetables and the like and the planting of trees and use of the land as woodlands”) was not itself exhaustive. There was nothing in the definition of “cultivate” in section 5C(8) of the 1993 Act that could be read as implying any requirement that the keeping of livestock should be for the production of stock to enter the food chain, or for sale of breeding animals, or that the keeping of livestock must be carried out with a view to realisation of a monetary profit.

[63] Mr Benfield drew our attention to the definition of “cultivate” that first appeared in section 10(1) of the Small Landholders (Scotland) Act 1911, where in the context of the statutory condition therein imposed that the landholder “shall, by himself or his family, with or without hired labour, cultivate his holding …”, it was provided that “the expression “cultivate” in this section shall include the use of a holding for horticulture or for any purpose of husbandry, inclusive of the keeping or breeding of live stock, poultry or bees, and the growth of fruit, vegetables, and the like.” He argued that even if we were not persuaded that the ten Herdwick wedders were the property of the Applicant, the case law (Little v MacEwan 1965 SLT (Land Ct) 3; Arran Properties v Currie 1983 SLCR 92) on that section and its statutory successors (conditions 3 and 12 in the Second Schedule to the Crofters (Scotland) Act 1955 and conditions 3 and 13 in Schedule 2 to the 1993 Act) confirmed that the grazing of a croft by stock not the property of the tenant was not a breach of the statutory conditions of tenure and should not be regarded as a breach of the new statutory duty to cultivate. The Parliamentary history of the 2010 Act confirmed that what that statute did was merely to relocate the former statutory condition of tenure relating to cultivation from Schedule 2 to the 1993 Act to the body of the 1993 Act in the form of the new section 5C(2)(a)(i) statutory duty, thereby ensuring consistency of enforcement between tenants and owner-occupier crofters. In so doing, it had not been the intention of the Scottish Parliament to render the obligation to cultivate the croft more onerous than before.

[64] The scope of the obligation in section 5C(2)(b) of the 1993 Act to keep the croft in a fit state for cultivation, Mr Benfield contended, was determined by the means of cultivation carried on by the particular crofter; the Applicant having here opted to cultivate Croft 305 by keeping ten Herdwick sheep on it, the question in this case was whether Croft 305 had been kept in a fit state for that method of cultivation. Section 5C(3) of the 1993 Act provides that in determining whether the duty in section 5C(2)(b) is complied with, regard is to be had to whether appropriate measures (which may include the provision of drainage) are routinely undertaken, where requisite and practicable, to control or eradicate vermin, bracken, whins, broom, rushes and harmful weeds. Mr Benfield emphasised the “practicable” qualification provided for in section 5C(3): so far as the duty imposed by section 5C(2)(b) was concerned, there was no obligation on a crofter routinely to undertake appropriate measures (including the provision of drainage) to control or eradicate vermin, bracken, whins, broom, rushes and harmful weeds where it was not practicable to do so. If money were no object, anything was possible (the most barren stretch of moorland might be transformed into a market garden), but the duty to keep the croft in a fit state for cultivation had to be looked at practically: “practicable” had to have regard to the economics of the situation. The social policy objectives that underlay the recent amendments to the crofting legislation included that of supporting population retention in the crofting counties, and that objective would be frustrated if the bar for achieving compliance with the statutory duty obligation in section 5C(2)(b) to keep the croft in a fit state for cultivation was set so high that only “retirees with ample funds” would have the available time and resources to do so. That would be the case particularly where the croft was in a neglected state at ingo.

[65] After some introductory remarks in general terms on the proper approach to be adopted to the task of statutory interpretation, the contents of which we did not understand to be in dispute, and which we need not relate here, Mr Murchison, for the Respondent, identified the policy considerations which, he submitted, underpinned the legislation we were considering. The 1993 Act was not solely concerned with regulating the rights of private individuals between themselves. The legislation, as amended in recent times, was also seeking to achieve outcomes within the realm of social policy. It sought to do so within the context of the landlord and tenant relationship. Two separate mechanisms were provided with the combined objective of securing the performance of the statutory duties in sections 5AA, 5B and 5C of the 1993 Act. The mechanisms were the landlord’s right ultimately to require removal of a tenant in breach of the statutory duties, and the Commission’s duty to investigate breaches reported to it and to take enforcement action against established breaches on the part of both crofters and owner-occupier crofters. What was significant was that these different enforcement mechanisms all related to the same set of statutory duties.

[66] That was suggestive of “a high priority on the part of the legislature to ensure that these duties are enforced; crofts are [to be] occupied, put, and or maintained, in a fit state for cultivation; and cultivated.” Mr Murchison cautioned against approaching the task of interpreting the statutory duties “conditioned by what is acknowledged to be widespread failure to comply with the obligations of cultivation”. There might be a temptation to “lower the bar” and “read in” qualifications or dilutions of the statutory duties in light of the copious evidence of existing non-compliance, but any such temptation should be resisted. The Scottish Parliament had imposed these obligations with the intention they be complied with, and where not complied with, enforced. The widespread decline in crofting activity and the failure to maintain crofts was a significant long-standing problem that required an effective remedy. It appeared that the new statutory duties were introduced as the answer to that problem, and the literal and straightforward interpretation of those duties for which the Respondent contended was consistent with the legislature’s policy objectives. It would not be appropriate to view the new statutory duties as “the same old, same old”, and past case law relating to the termination of crofting tenancies should not be regarded as a reliable guide to the application of the new law. Increasing recognition of the undesirable socio-economic consequences that had ensued from a failure to utilise the resource that crofts provide had brought about a substantive shift in public policy away from the protection of the position of existing crofters who were not working their crofts and towards a greater willingness to remove that protection in the interests of securing the active use of that potentially valuable resource by other people who were willing to do so.

[67] Mr Murchison considered that a particular insight into those policy objectives was afforded by that part of section 5C(2)(a) of the 1993 Act which provided that the crofter’s duty was to cultivate the croft “so that every part of the croft which is capable of being cultivated … is cultivated …” The legislation recognised that there may be parts of a croft not capable of being cultivated. However, where parts were capable of being cultivated, the duty applied. That was a high threshold compared to what might have been provided for. The legislation might merely have provided that the obligation extended only to such parts of the croft as were capable of being profitably cultivated, or that it applied only where it was reasonable to do so. It could have been qualified to extend only to the “majority of” or the “greater part” of the croft, but such qualifications were not present. Mr Murchison further submitted that consideration of the nature of the alternative duty to put the croft to “another purposeful use” (section 5C(2)(a)(ii) of the 1993 Act) shed additional light on the general legislative intent underlying these provisions. The definition of “purposeful use” in section 5C(8) of the 1993 Act invoked the concept of “planned and managed use”, which “does not adversely affect – (a) the croft; (b) the public interest; (c) the interests of the landlord or (if different) the owner; or (d) the use of adjacent land.” “Cultivation”, being in its nature generally a process rather than a “one-off” activity, had the character of a “planned and managed use.” It was a legitimate assumption that the framers of the legislation had broadly the same policy objectives in relation to use of a croft whether it was being cultivated or put to another purposeful use. In essence, what was required was activity:- (i) that amounted to something “purposeful”, which was secured in the case of cultivation by productivity in an agricultural sense; (ii) that was not adverse or harmful, which, in the context of a crofting community, cultivation would not be; and (iii) that was “planned and managed.”

[68] For an activity to qualify as “cultivation”, according to Mr Murchison, it had to be productive. A landlord could not prescribe what sort of cultivation the tenant undertook, and the tenant did not have to adopt the optimal method of cultivation, but he was obliged to put the croft land to some productive use. It was not, in and of itself, productive to use a croft as ancillary garden ground for amenity. That was under-utilisation of a resource, and the under-utilisation of such a resource adversely affected the neighbouring crofts, the landlord and the public interest. The character of the word “cultivate” was conveyed by the Oxford English Dictionary (OED) definition of “prepare and use (soil) for crops; raise, produce crops”, but Mr Murchison recognised that the statutory definition in section 5C(8) of the 1993 Act was wider in its scope. Nevertheless, he contended that at its core was the concept of producing something from the land as a result of active management and planning. The case of Little v MacEwan, op. cit., was authority for the proposition that just allowing cattle or sheep onto a holding to graze your land did not amount to cultivation. Pet animals, or animals present on a croft only to keep the grass down or because they were nice to look at, were not “livestock”, in conformity with the definition of that term in section 85 of the Agricultural Holdings (Scotland) Act 1991 (““livestock” includes any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in farming the land”). That definition was consistent with the submission that cultivation required the element of productivity.

[69] Whilst recognising that there was some difficulty in identifying the precise boundaries between the different positive and negative iterations of the statutory duties in respect of cultivating and maintaining the croft, keeping the croft in a fit state for cultivation, and not misusing the croft by failing to use it for the purpose of its being cultivated, Mr Murchison insisted that the “matrix of obligations” thereby imposed was intended to be “all-encompassing with regard to the duty to cultivate, bring into a satisfactory state, and keep the croft [in] a proper state”, and suggested that together they amounted to a legislative recognition that a loss of productivity (the fundamental goal the imposition and enforcement of the statutory duties was intended to achieve) could result from either the absence of a positive action, or the presence of a negative one. The positive duty to cultivate must take in works preparatory for that purpose and works of ongoing maintenance to keep the land in a fit state for cultivation, without which agricultural land would, in effect, revert back to non-agricultural land. He suggested, somewhat tentatively, that the negatively expressed duty not to misuse the croft, by failing to use the croft for the purposes of its being cultivated, might cover the situation where a crofter had taken on the tenancy of a croft in a state of great disrepair. A failure on the part of someone taking on such a croft to effect the remedial action necessary to bring it into a fit state for cultivation might constitute a breach of section 5B(2)(b) of the 1993 Act.

[70] Mr Murchison acknowledged that the question of how the Court was to go about identifying the benchmark against which compliance with and breach of the statutory duties was to be measured, was a fair one. Ultimately, the statute had to be the guide, with each case turning on its own facts. Where, as here, a duty was cast in absolute terms, non-compliance amounted to breach. The fact of widespread non-compliance should not be used to qualify the obligations that the Scottish Parliament had imposed. There was no reason why, in termination proceedings, the Court might not afford a party found to be in breach the opportunity to rectify the breach. The taking on of a croft tenancy involved duties as well as rights, compliance with which might well be onerous and indeed costly. No-one was forced to be, or to remain, the tenant of a croft, but those who chose to be assumed a concomitant obligation to comply with the statutory duties, and to meet the commensurate expense of so doing. With the rights came the responsibilities, and those who declined to meet those responsibilities might be forced to give up their holding. That would not necessarily be a bad thing: it might indeed be a good outcome for crofting, with crofts being put into the hands of people prepared to commit time, energy and investment into them.

Discussion

[71] The Commission must, as provided for in section 40A (Annual notices) of the 1993 Act, by notice given to each crofter and owner-occupier crofter, require them to provide the Commission with information on an annual basis as to whether or not they are complying with their statutory duties, being in the case of a crofter, sections 5AA, 5B and 5C of the 1993 Act. Recipients of such a notice (now known as the Crofting Census) are asked to tick boxes on the form to advise whether they are, or are not, complying with each of the statutory duties. According to “Crofting Statistics 2018”, a document published by the Commission, copies of which can be downloaded from its website, in the 2017 Crofting Census, 91% of respondents confirmed that they were not neglecting or misusing their crofts. 90% of respondents reported that their crofts were being cultivated and maintained or were being put to some purposeful use. It would be interesting to know what criteria respondents were applying when answering those questions as to whether or not they were complying with their statutory duties, because whilst the scope of the duty imposed on a crofter by section 5B(1) of the 1993 Act not to neglect the crofter’s croft is, by virtue of section 5B(3) of the 1993 Act, assessed against determinate standards of good agricultural and environmental condition, there is a striking lack of advice available to existing or prospective crofters and owner-occupier crofters about what achieving compliance with the statutory duties under sections 5B(1) and 5B(2)(b) (not to misuse by failing to use the croft for the purpose of its being cultivated) and 5C(2)(a)(i) (to cultivate the croft) and 5C(2)(b) (to keep the croft in a fit state for cultivation) of the 1993 Act would entail in practice in any particular case. The guidance notes to the Crofting Census merely paraphrase the statutory provisions, and neither party to these proceedings pointed us towards any other guidance published by the Commission that might assist existing or prospective crofters and owner-occupier crofters in this regard. Whilst we are, as presently advised, sceptical that it would ever prove possible to formulate and provide a “bright line test” (cf. Balgray Limited v Hodgson 2016 SLT 839 per Lord Brodie at paragraph [33]) of compliance with duties framed in such terms, we do consider that this issue, which is potentially of relevance to every existing or prospective future crofter and owner-occupier crofter, is one that needs to be highlighted, and to be subjected to a more rigorous critical scrutiny than it has hitherto received. Accordingly, in any future proceeding in which it arises, we shall expect to receive submissions from the Commission, as the body having the general functions of regulating and promoting the interests of crofting (cf sections 1(2)(a)(i) and 1(2)(a)(iii) of the 1993 Act), on the approach they adopt in determining whether or not compliance with these statutory duties has been achieved. In the meantime, the lesson of the present application may be that attempts to establish breach of the statutory duties set out in sections 5B and 5C of the 1993 Act that eschew reliance on breach of the duty not to neglect the croft, and are not grounded in evidence that the croft is not being managed so as to meet the standards of good agricultural and environmental condition, are likely to encounter especial difficulties of proof.

[72] Of course, at the furthest ends of the spectrum, whether or not the statutory duty in section 5B(1) of the 1993 Act not to misuse a croft by failing to use it for the purpose of its being cultivated, in terms of section 5B(2)(b) of the 1993 Act, and the statutory duty in section 5C(2)(a)(i) of the 1993 Act to cultivate the croft, are being complied with, will be self-evident. In the course of our travels on circuit around the crofting counties in recent months, we have seen both obviously abandoned crofts, in respect of which breach could readily be established, and conspicuously well-tended crofts where compliance is manifest and indisputable, but in cases such as this one, the problem of locating the “tipping point” between compliance and breach is brought out in sharp relief. Whilst we agree with Mr Murchison that the legislative object of enacting sections 5AA, 5B and 5C of the 1993 Act was “… to ensure that these duties are enforced; crofts are [to be] occupied, put, and or maintained, in a fit state for cultivation; and cultivated”, it seems to us to be questionable whether that object has been fully attained. The language in which the positive and negative mirror image duties referred to above, and the separate but related duty in section 5C(2)(b) to keep the croft in a fit state for cultivation, is couched is, in our view, so open-textured as to make it difficult, in practice, to apply the legislation in a manner compatible with achieving that object in anything other than the most blatant cases of abandonment of croft land.

[73] Section 5C(8) of the 1993 Act, in our opinion, operates in such a way as to extend the meaning of “cultivate” beyond its ordinary meaning. Thus, whilst we agree with Mr Murchison that this non-exhaustive definition must be taken to incorporate the standard dictionary meaning, which contemplates the production of some crop, the extended meaning expressly provides for the use of the croft “for any purpose of husbandry, including the keeping or [our emphasis] breeding of livestock …” We do not accept Mr Murchison’s submission that it would be legitimate for us to import into the 1993 Act the definition of the term “livestock” from the Agricultural Holdings legislation, not least because those Acts apply to agricultural land, being, in the statutory definition in section 1(2) of the 1991 Act, “land used for agriculture for the purposes of a trade or business”: there is no equivalent provision in the crofting legislation to say that the use made of the croft must be for the purposes of a trade or business. Further, and in any event, the definition of “livestock” in section 85 of the 1991 Act is itself not exhaustive, and provides only that the term “includes [our emphasis] any creature kept for the production of food, wool, skins or fur …”

[74] The duty imposed by section 5C(2)(b) of the 1993 Act to “keep the croft in a fit state for cultivation”, on first reading, would seem to pre-suppose that the croft was in a fit state for cultivation when the crofter took on the tenancy, if “keep” in this context is taken to mean maintain in the state in which it was received. But what of the situation where the croft is not in a fit state for cultivation when taken on by the incoming crofter, as arguably was the case here in relation to both Croft 305 and Dr Dean’s Portnacreich croft? Does the duty in section 5C(2)(b), by itself or read along with the other duties in the “matrix of obligations” imposed by sections 5B and 5C of the 1993 Act, require an incoming crofter to reinstate a once fertile and productive croft that has, over a period of decades, been permitted to deteriorate to the extent that it is now fit only for rough grazing, to its former condition? The gloss on the section 5C(2)(b) duty supplied by section 5C(3) of the 1993 Act does not obviously assist in answering that increasingly important question. It is far from obvious to us how an obligation positively to improve an area of ground, habitually used in recent times solely for the purpose of providing rough grazing for livestock, into a state more akin to permanent grassland, might be derived from the terms of sections 5B and 5C of the 1993 Act.

[75] The contents of section 5C(3) of the 1993 Act are stated to be without prejudice to the generality of section 5C(2)(b), so section 5C(3) is not the last word on the issue of what considerations will be relevant to an assessment of whether the duty to keep the croft in a fit state for cultivation is being complied with. Section 5C(3) further provides that in determining whether section 5C(2)(b) is complied with, “regard is to be had” to whether “appropriate measures (which may include the provision of drainage)” are “routinely undertaken”, where such measures are “requisite and practicable”, to control or eradicate vermin, bracken, whins, broom, rushes and harmful weeds. The formula “regard is to be had” would seem to us to suggest that whether or not appropriate measures (including the provision of drainage) are routinely undertaken for such purposes will not necessarily be determinative of the issue of whether the duty to keep the croft in a fit state for cultivation is complied with, and confirmation that this is indeed the correct approach to the interpretation of section 5C(3) is provided by the inclusion of the qualification that such measures need be routinely undertaken only where they are both “requisite” and “practicable”. Whilst the latter word may be given some workable content, to the extent that it rules out a crofter being required to undertake impracticable measures in order to satisfy the section 5C(2)(b) duty, it is questionable whether the word “requisite” adds anything at all, in that it must be taken to refer to what is requisite to comply with the duty to keep the croft in a fit state for cultivation, resulting in a circularity.

[76] This is not a case in which it could be suggested that the Applicant has abandoned his croft. On the contrary, he has expended significant sums of money in fencing Croft 305, installing a water supply and erecting an agricultural shed on it, and he has devoted time and effort to controlling (although not eradicating) the rushes and bracken growing thereon. Nor is it a case where it can be said that he has not put his croft to some use. He grows vegetables on the plot he has established on the croft land beyond the title boundary of the decrofted garden ground. He has used the remainder of Croft 305 to keep livestock, most recently in the form of the ten Herdwick wedders. The Respondent’s witness, Ms McKnight, did not suggest that there was any other form of cultivation (following the definition of “cultivate” in section 5C(8) of the 1993 Act) to which Croft 305 was better suited than the grazing of livestock, and there was nothing in either her written report or her oral testimony, and no other evidence was placed before us, to suggest that the condition of Croft 305 had deteriorated under the Applicant’s stewardship. Ms McKnight’s evidence went no further, as we understood it, than suggesting that the stocking capacity of Croft 305 could be increased if the Applicant improved the quality of the grazing, and warning that if he continued grazing it at current stocking levels, there was a future danger of damage to the sward and soil erosion.

[77] The Applicant’s initial motivation in taking the ten Herdwick wedders onto Croft 305 was a wish to help out his friend, Mrs Jones. We do not doubt that, as a retired veterinary surgeon, he derives some pleasure from having these animals around, and their presence on Croft 305 fulfils a useful purpose for him in that they help to keep the vegetation on the croft land under control, but they serve no economic purpose. We do not think we are being unduly cynical when we say that we suspect that the presence of these sheep on Croft 305 fulfilled an ancillary purpose for the Applicant, in that had the coming into force of the widely publicised and much discussed 2010 changes to the crofting legislation ushered in a notably more active enforcement regime, and his own situation, for some reason, come to the attention of a re-invigorated Commission, it would furnish him with evidence to show that he was indeed using his croft. That the threat of Commission action against individual crofters in breach is perceived by some as a live one, whatever the reality may be, was to some extent confirmed by the concerned reaction our presence in Lochcarron provoked, with a number of people emerging from their houses during our inspection to ascertain whether we were representatives of the Commission investigating breaches of statutory duty. Whilst the Applicant and Mrs Jones were both, in our estimation, generally credible and reliable witnesses, we did share Mr Murchison’s scepticism as to the genuineness of the transaction whereby the Applicant, in September 2017, purported to purchase the ten elderly Herdwick wedders from her. Given that these animals were to all intents and purposes worthless, not only by reason of their advanced age but also because one of the conditions of their sale was that they were never to be sent to auction, the reality of the situation, one would have thought, was that Mrs Jones should have been paying the Applicant to take them off her hands, rather than him paying her for the privilege. Be that as it may, however, it does seem to us that in keeping the ten Herdwick wedders on his croft, even when they were still in the ownership of Mrs Jones, the Applicant was complying with the letter, if not perhaps the spirit, of the legislation, so far as the duties to cultivate his croft, and not to misuse his croft by failing to cultivate it, as “cultivate” is statutorily defined, are concerned. Under reference to the authorities on this point cited by Mr Benfield, we do not consider that compliance with these statutory duties requires that any livestock kept on the croft be the property of the crofter him- or her-self.

[78] One of the interesting points to emerge from the recently published “Support for Crofting”, a report prepared for the Commission by Glyn Jones (July 2018), was the wide variation in the estimated percentage of registered crofters who claimed agricultural subsidy payments under the Basic Payment Scheme in different sample parishes. In some of the parishes sampled, that percentage was as low as one in five. The purpose of the research which produced these figures was to arrive at an estimate of the proportion of crofters who took personal responsibility for cultivating and maintaining their crofts, the tentative conclusion reached by the author being, as we interpret him, that whilst most of the croft land was being used, a great deal of it was being used, and the costs of its maintenance and cultivation were being borne, by someone other than the crofter him- or her-self. Here, the Applicant, although he does not claim agricultural subsidies and does not seek to derive any economic benefit from the use he makes of his croft, does himself bear the cost of maintaining Croft 305, which is grazed by livestock at least ostensibly now in his ownership. He is, judged on these terms at least, a more active crofter than many others within the crofting counties.

[79] Mr Murchison, in seeking to argue that the presence of the ten Herdwick sheep on Croft 305 did not qualify as cultivation for the purpose of demonstrating compliance with the statutory duties, emphasised that the concept of productivity was central to the notion of cultivation. The ten Herdwick wedders produced nothing: they were no more than pets. We do see some force in that argument, but the difficulty then comes in deciding what qualifies as productivity. If the statutory provisions required that crofts be run for profit for the purposes of a trade or business, it would be easy to distinguish between compliance with the statutory duties and breach. But crofting law has never imposed such a requirement. Mr Murchison, in his closing submissions, attempted to characterise the “two visions” for the future of crofting about which we had heard evidence during this case. One vision was that of his client, the Respondent, which contemplated crofters pooling their land parcels and resources with a view to achieving economies of scale and working together to generate a meaningful financial return from their crofts. The second vision was that of Dr Dean, who wished to work a croft for ecological and lifestyle reasons, unattended by any profit motive. The apparent conflict between those two visions did rather beg the question why the Respondent should have chosen to let a croft to Dr Dean, whose non-commercial philosophy could scarcely be further removed from his own, but Mr Murchison contended that what linked these two visions for the future was that they both evidenced a commitment to invest both time and money in the land, whether that ultimately be for financial or for emotional reward. The Respondent, Mr Murchison submitted, wanted to regenerate crofting on Lochcarron Estate, and this could be achieved by way of either the business enterprise or the lifestyle approach.

[80] There were, it seemed to us, two fundamental problems with this argument. The first was that it was difficult to reconcile with the contents of the Respondent’s own testimony. The second was that if the sort of non-profit-making, lifestyle crofting which Dr Dean hopes to enjoy is sufficient to satisfy the statutory duty to cultivate, upon what basis of principle would it possible to conclude that her crofting activities satisfy the duty to cultivate, but the Applicant’s non-profit-making, lifestyle crofting does not? The terms in which the legislation is drafted do not, in our opinion, afford us the means to be able to draw such a fine distinction.

Decision

[81] The Respondent, for the reasons given, having failed to satisfy us as to either of the matters set out in paragraphs (a) and (b) of section 13(2) of the 1993 Act, we repel the Respondent’s five pleas in law and make an order authorising the Applicant in terms of section 13(1)(a) of the 1993 Act to acquire the croft land at Croft 305 tenanted by him. We have allowed parties a period of 42 days (6 weeks) to seek to agree the terms and conditions of such acquisition by the Applicant, including the amount of the consideration to be paid by him, and we have appointed parties to advise the acting Principal Clerk within a further 14 days thereafter whether such agreement has been achieved, and consequent thereupon, to lodge any motions they have for such further procedure as may be required to address such issues as remain outstanding.