Decision of the Scottish Land Court

Frederick Oliver Bronsden Wells (Applicant) v Crofters having rights in the Common Grazings of the Township of Acheillie (Respondents)

Case reference SLC 53/17
before
Iain F Maclean, Deputy Chairman, and John A Smith
30 November 2017

Introduction

[1] This is an application by the owner of part of the Southside Strathfleet Common Grazings (“the Common Grazings”) for an order authorising him to resume therefrom an area extending to some 100 square metres or thereby, being the site of an existing telecommunications base station, radio-mast and related equipment. By Order dated 5 November 1997 in Application RN SLC/64/97, the then owner of that part of the Common Grazings had been authorised to resume, at the term of Whitsunday 1997, an area of ground extending to 100 square metres or thereby, forming part of the Common Grazings, and that “for the purpose of leasing the said area to Telecom Securicor Cellular Radio Limited to allow that company to erect and operate a telecommunications base station, radio-mast and related equipment.” Resumption of that area, referred to as “the Resumed Area” in the present application, was granted subject to the standard condition that “the landlord [a]pplicant shall erect stockproof fences on the boundaries between the said area of ground and the remaining part of the common grazing”, and the application was continued to determine the questions of the compensation due to the crofters having right in the Common Grazings under section 20 of the Crofters (Scotland) Act 1993 (“the 1993 Act”) and the share in the development value payable to them under section 21 of the 1993 Act. Following a hearing in the Council Chamber in Dornoch, the Land Court issued an Order dated 16 December 1997 finding and determining that the crofter respondents were due no compensation under section 20 of the 1993 Act, but that a capital sum amounting to £3,750 was payable to them under section 21 of the 1993 Act. The landlord applicant accordingly was ordained to make payment of that sum to the Clerk of the Common Grazings “for behoof of the crofter Respondents sharing in” the Common Grazings within 30 days of the date of intimation thereof.

[2] Nearly twenty years later, it was discovered, in the course of registering the Common Grazings in the new Crofting Register, that the ensuing telecommunications base station, radio-mast and related equipment had been installed in the wrong place, or as the Applicant, more delicately, puts it, “Registration of the Common Grazings has disclosed that the location of the Resumed Area does not accord with the actual site of the radio-mast per the OS Map.” The present application has been made with a view to regularising the position. As such, it proposes that the actual site of the telecommunications base station, radio-mast and related equipment be resumed, and that the Resumed Area be returned to crofting tenure, “which will result in the return of an equivalent area of the Common Grazings to crofting tenure”.

The current status of the Resumed Area

[3] The application, as lodged, did not elaborate upon the procedure which would require to be adopted to bring about that congruent outcome, and of course, in crofting law, nothing is ever simple. The meaning and effect of the statutory provisions relating to resumption and decrofting were considered in Nicolson v Tait & Peterson & Others 2001 SCLR 766, an action for damages brought in the Court of Session by a crofter against a firm of solicitors on the grounds of breach of contract and negligence. The issue for decision, for the purpose of establishing when the prescriptive period began to run, was when the crofter had sustained his loss, which, in the particular circumstances of the case, was the date a particular resumption order had taken effect. The Lord Ordinary (Gill), opined that:

“It is clear from the legislation that the resumption order took effect when it was implemented rather than when it was pronounced. A resumption order does not extinguish the crofter’s rights in the land. It merely authorises the landlord to resume the land (cf. 1955 Act, s. 12). The landlord may delay in enforcing the order or he may decide not to enforce it at all. So long as the order remains unimplemented the land remains in crofting tenure in the hands of the respondent crofter (Macdonald v Barker 1970 SLT (Land Ct) 2, referred to in Secretary of State for Scotland v Shareholders of Lealt and Culnacnoc Common Grazings 1982 SLT (Land Ct) 20). Under section 12(4) of the 1955 Act decrofting occurred only when the land was “resumed in pursuance of” the order. Likewise section 12(1) provided that compensation was payable for the permanent loss of the grazings only when the land was surrendered to the landlord. Similarly section 9(1) of the 1976 Act entitled the pursuer to receive a share in the value of the land ”so resumed.” It follows, in my view, that under these provisions the pursuer would have had the right to compel payment of these sums only when the landlords took possession of the land in pursuance of the order. For the purpose of section 7 of the 1973 Act [i.e. the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”)] that, in my opinion, is the date on which the prescriptive period began to run.”

[4] It is not, as we understand it, in dispute that our Order dated 5 November 1997 in Application RN SLC/64/97 was never implemented, in the sense of the landlord taking possession of the area herein referred to as the Resumed Area. Stockproof fences were never erected on the boundaries between the Resumed Area and the remaining part of the Common Grazings in conformity with the standard condition attached to the Order dated 5 November 1997, and so the Resumed Area remained in crofting tenure in the hands of the crofters sharing in the Common Grazings. The subsistence, for a continuous period of twenty years unexercised or unenforced, and without any relevant claim in relation to it having been made, of the landlord applicant’s right to resume the Resumed Area would result in its being extinguished as from the expiration of that period, by operation of section 8(1) of the 1973 Act, assuming for present purposes, without deciding, that section 8 (Extinction of other rights relating to property by prescriptive periods of twenty years) rather than section 7 (Extinction of obligations by prescriptive periods of twenty years) of the 1973 Act here applies. That may be something of a moot point, with the argument for section 8(1) of the 1973 Act rather than the more general section 7(1) of the 1973 Act applying to the landlord applicant’s right to resume being that it is not, in terms of section 8(2) of the 1973 Act, a right correlative to an obligation to which section 7 applies, but which of sections 7 and 8 applies is of essentially merely academic interest in the present context. A full discussion of the issue of which rights are affected by which of those sections may be found in David Johnston, Prescription and Limitation (2nd Ed.; 2012) at paragraphs 7.09 – 7.14.

[5] Before the advent of the new Crofting Register, the Order dated 5 November 1997 in Application RN SLC/64/97, if never implemented, could after twenty years for all practical purposes have been ignored as being of no legal effect. The problem now is that as a result of registration of the Common Grazings in the Crofting Register, the description of the land which comprises the Common Grazings entered in the registration schedule based on the ordnance map as from 5 November 2017 excludes the Resumed Area. Section 24(2) of the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”) provides that where common grazing land is registered under section 24(1) of the 2010 Act, then for the purposes of the 2010 Act – (a) the land is, from the date of registration, a common grazing; and (b) the land which comprises the common grazing is determined by the description of that land in the registration schedule of the common grazing. Section 24(3) of the 2010 Act provides that nothing in this section affects whether, before the date of registration, the land was a common grazing.

[6] When the Common Grazings were first registered, the Resumed Area was shown edged in green but still as forming a part thereof. It was, however, noted on the registration schedule that it had been resumed and that “If the terms of Part 2 Section 15 of the [2010 Act] are complied with this entry will be removed 20 years from the authorisation of the resumption. The date for removal is 5th November 2017.” “Part 2 Section 15” of the 2010 Act may be taken as referring to section 15(2) of the 2010 Act. Section 15(1)(a) of the 2010 Act, as applied to a resumed common grazing by section 28 of and paragraph 8 of Schedule 3 to the 2010 Act, provides that where section 15(2) of the 2010 Act applies, the Keeper must remove the entry in the register relating to the resumed common grazing. Section 15(2) of the 2010 Act applies where (a) a registered common grazing has been resumed (whether before or after it was first registered) by virtue of an authorisation under section 20(1) of the 1993 Act; and (c) the period of 20 years beginning with when the resumption was authorised has ended. This is what the Keeper has now done, with the result that the Resumed Area now appears on the ordnance map which describes the land comprising the Common Grazings as a small white island, abstracted from the [pink shaded] Common Grazings.

[7] It follows from all of the above that in the event of our authorising resumption of the actual site of the telecommunications base station, radio-mast and related equipment, some further procedure will be necessary to effect the reinstatement of the Resumed Area to the Common Grazings, and although the application as lodged contains no operative craves to achieve that outcome, the intimation by way of advertisement of the application that appeared, in conformity with our Order dated 29 June 2017, for two successive weeks in the Northern Times newspaper, being the editions of 1 and 8 September 2017, expressed the intention of the Applicant that “the area already resumed will be returned to Southside Strathfleet Common Grazings.” It was upon the basis that this was a corrective application, and that the Resumed Area, in respect of the resumption of which the shareholders previously had received a share in the value under section 21 of the 1993 Act, would be returned to the Common Grazings, that the Applicant proposes that no further consideration or compensation should be payable to them. In the interests of completeness, we would note at this stage that as well as ordering advertisement of the application, our Order dated 29 June 2017 appointed the Applicant to send a copy of the application, the productions and a copy of the Court’s Practice Note (No. 4) to the Clerk to the Grazings Committee of the township. Any shareholder or other person having a legal interest who opposed the application, or who wished to make any claim for compensation or share in value in the event of resumption being authorised was appointed to lodge written answers with the Principal Clerk within fifteen days from the date of the final advertisement.

Mr Douglas’s dealings with the Court

[8] No answers were received by the Court within fifteen days from the date (being 8 September 2017) of the final advertisement of the application. On Saturday 21 October 2017, Malcolm Douglas sent an email to the Court from his smartphone. Mr Douglas is a shareholder in the Common Grazings. In his email, he advised that “as I do not get the local papers I am not aware if any advert has been submitted but as I intermatted [sic- we infer that “intimated” was intended] in our conversation I will still be lodging an objection if an[d] when an advert is lodged.” The conversation to which Mr Douglas was there referring was one he had with a member of the Court’s staff, Mr McCann, on 3 August 2017. Mr Douglas had contacted the Court on that date to inquire about the progress of the present application. At that stage, it had been received by the Court and copied to the Clerk to the Grazings Committee, but had not yet intimated by way of newspaper advertisement. Mr Douglas was informed by Mr McCann that the Court had raised some queries with the Applicant, and that these matters were still being dealt with, which might delay the appearance of the newspaper advertisement. He was told that the advertisement would appear for two successive weeks in the Northern Times newspaper, and that he would have fifteen days from the publication of the final newspaper advertisement within which he could submit answers to the Court. Mr McCann followed up his telephone conversation with Mr Douglas with an email to him, sent later the same day, in which he confirmed that position.

[9] On 25 October 2017 the Court emailed Mr Douglas in response to the email he had sent to the Court over the previous week-end to tell him that the application had been advertised in the editions of the Northern Times newspaper published on 1 and 8 September 2017, and that in consequence, any answers that might now be tendered by him would be considered late, and that should he still wish to object to the application, he would need to ask the Court to accept his answers late. Mr Douglas, in his reply to that email, explained that he had contacted the Court in a timely manner (by which we take him to be referring to his communications with Mr McCann at the beginning of August 2017), but that he only got the West Highland Free Press newspaper and had not seen the advertisements in the Northern Times. After sundry other communications with him, the Court finally received answers to the application from Mr Douglas on 29 October 2017, some five weeks late.

The issue of whether Mr Douglas’s answers should be admitted although late

[10] Rule 113 of the Rules of the Scottish Land Court 2014 (SSI 2014 No. 229)(“the 2014 Rules”) provides that subject to any express provision in the 2014 Rules, the Court may set such time limits as it considers appropriate for compliance with any order it makes. Rule 114(1)(c) of the 2014 Rules provides that if a party fails to comply with a rule or order of the Court, the Court may relieve the party from the consequences of the failure if it considers it reasonable to do so, on such terms and conditions as to expenses or otherwise as it considers just. Rule 115(1) of the 2014 Rules provides that where it is competent to do so, a party may request the Court for - (a) an extension of time; or (b) permission to take a procedural step out of time, which request it may grant or refuse without hearing the other party: rule 115(2) of the 2014 Rules. The overarching rule 1(3) of the 2014 Rules provides that any order made by the Court to regulate the procedure to be followed at any stage in a particular case is to accord with the 2014 Rules, unless the Court is satisfied that it is necessary to depart from them in the interests of justice.

[11] Mr Douglas has not, in terms, asked us for permission to lodge his answers out of time under reference to rule 115(1)(b) of the 2014 Rules, but his answers having now been submitted to the Court, we shall proceed, as if he had invoked that rule, to consider whether we should exercise our discretion to accept them notwithstanding his failure to lodge them within fifteen days from the date of the final advertisement in the Northern Times newspaper in conformity with our Order dated 29 June 2017. In the context of a corrective resumption application in which the situation standing in need of correcting has endured for two decades, a delay of five weeks in lodging answers may not be thought a long time, and it is not obvious to us that the interposition of such delay has been a source of material prejudice to the Applicant. Had the resumption application come out of the clear blue sky, so far as Mr Douglas was concerned, we would have been inclined to show him some indulgence in this regard, but the curious aspect of this case is that Mr Douglas was well aware that the application was pending before the Court; that it was shortly to be advertised for two successive weeks in a specified newspaper circulating in the district in which the land to which the application related was situated; and that he would then have fifteen days from the publication of the final newspaper advertisement within which to submit answers to the Court. In these circumstances, it was, in our view, incumbent upon Mr Douglas to keep a weather eye on the situation, and we do not think the mere fact that he happens to take a different newspaper, and so missed the advertisements that duly appeared in the Northern Times within four weeks of his initial communication with the Court, provides us with good reason to grant what we are treating as his request for permission to lodge his answers out of time.

[12] Further, and in any event, our scrutiny of his proposed answers does not suggest to us that they contain a relevant defence to the application that it would be in the interests of justice for the Court to admit, notwithstanding the lateness of the answers: cf. Hilleary v Campbell 2004 SLCR 203 at page 205. Mr Douglas, in his answers, contends that it would be preferable if the mast became a “community mast”, with the rent received therefor being for the “common good of the grazing committee and local community”. He emphasises the importance of maintaining mobile phone coverage for business and emergency use in what is a remote area and expresses his concern that the Applicant in future might object to the mast being upgraded or, by being “too greedy”, provoke the mast operator into closing it down, an outcome he submits would be “unacceptable.” There is nothing in the answers to indicate that the risks identified by Mr Douglas are anything other than purely hypothetical, but in any case, the outcome of refusing the application to resume would not be to substitute the shareholders in the Common Grazings, either collectively or individually, for the owner of the site of the telecommunications base station, radio-mast and related equipment in the subsisting agreement with the mast operator. The issue here is whether the Applicant has established a reasonable purpose for resumption of the site upon which the existing telecommunications base station, radio-mast and related equipment have been situated for the past twenty years, and to the extent that they posit an alternative future in which the arrangements currently in place are, as a result of successful opposition to the present application, reconstituted as a community mast, Mr Douglas’s answers seem to us to be entirely misconceived as a matter of law.

Disposal of the application

[13] Accordingly, we are not minded to grant Mr Douglas permission to lodge answers out of time, and so now are in a position to consider the merits of the application, which has not otherwise been opposed. As has been explained, it is corrective in nature: its objective is to give effect to the reasonable purpose for which the Court authorised resumption in its Order dated 5 November 1997 in Application RN SLC/64/97. Applications of a similar nature come before the Court on a surprisingly frequent basis; it is far from being unprecedented in our experience that a building or other structure has been erected in the wrong location, the discrepancy between where it stands and the decrofted area becoming apparent only upon a subsequent sale or – increasingly – as a result of an application for registration in the new Crofting Register maintained by the Keeper of the Registers of Scotland. We are satisfied that the Applicant here desires to resume the actual site of the telecommunications base station, radio-mast and related equipment for a reasonable purpose in terms of section 20(1) of the 1993 Act, and we so find, but we consider that resumption thereof should be made conditional upon the Applicant securing restoration of the Resumed Area to the Common Grazings, and we have continued the application pending receipt of his proposals as to how this may be achieved. The Court having in 1997 determined that the crofter respondents were due no compensation under section 20 of the 1993 Act, but that a capital sum amounting to £3,750 was payable to them under section 21 of the 1993 Act, in respect of the resumption we authorised for the reasonable purpose specified in our Order dated 5 November 1997, we do not consider that there is a case for making any further award under either of those sections in this corrective application.