Decision of the Scottish Land Court

Mrs Irene Margaret Bray (Applicant)

Case reference SLC 64/15
Lord Minginish, Chairman
4 March 2016

[1] Our foregoing order deals with two matters: Mr Hill’s title and interest to respond to this application in his own right and the relevancy of the applicant’s pleadings. This note explains the decisions we have come to on these matters.

[2] So far as the first is concerned, the application is a question between the applicant and the owners of the land over which she claims a tenancy. It is not a public law case in which a concerned member of the public, or other party, may be permitted to come in as an intervener, in the manner of, to take a geographically apt example, Sustainable Shetland v The Scottish Ministers 2014 SLT 806. Nor does legislation oblige the Court to take account of wider interests than those of the parties, as, for example, it has to do in relation to applications for the resumption of croft land under sec 20 of the Crofters (Scotland) Act 1993. So this is not a situation in which, for example, another member of the crofting community in the locality of the croft is entitled to lodge objections or the like. Instead it is for the party seeking to enter a case to prove to the Court’s satisfaction that he has title and interest sufficient to be allowed in.

[3] In the present case, so far as title is concerned, it is clear that that Mr Hill, as an individual and leaving aside his attempt to seek to enter the case as an Attorney for certain other parties, is not in an legal relationship with either a party to the case or with the facts and circumstances of the case such as would entitle him to become a party to it. He is not caught up in any way in what we might call the factual or legal matrix of the case. We are therefore satisfied that he has no title to enter it.

[4] As to interest, the interest he claims is, firstly, as “an interested member of the Fladdabister and Ocraquoy community (the two being adjacent and forming a discrete and special part of the Shetland geography)”. That quotation is from his letter, containing his intended answers to the application, dated 9 October 2015. That letter goes on to express concern about the built heritage of Shetland, if we may put it like that, that is to say the state of preservation of old croft houses and the like. It is said that the applicant has shown a complete disregard for that heritage, having demolished the old Bain family home, and that if she got ownership of the land there would be a threat of further destruction, with other buildings being put at risk.

[5] Secondly, he claims an interest in supporting the Bain family but we have already dealt with entitlement to appear on their behalf in our order and note of 24 November 2015.

[6] Thirdly, he claims an interest in the following terms:

“The Sovereign Nation of Shetland has an undisputed claim to the allodial title for the whole of Shetland and its surrounding seabed. Correspondence in support of that claim is produced … . As a member of the Sovereign Nation of Shetland I therefore claim, on behalf of the Bain family, the allodial title for the whole three merks in the occupation of the applicant.”

All we need say on that matter is that “the Sovereign Nation of Shetland” is not an entity recognised in Scots law.

[7] Of the three interests claimed, therefore, only the first is in the least colourable. But it is not in our view enough. The interest claimed puts Mr Hill in no different position from any other member of the local community. Moreover there are, no doubt, planning and building preservation laws to protect the built heritage of Shetland. The avenue of the local authority is, therefore, available to him to pursue that concern. We cannot sustain this submission.

[8] For the foregoing reasons we have repelled the Answers lodged by Mr Hill on his own behalf.

[9] The second matter is the relevancy of the applicant’s pleadings. The fourth paragraph of her agents’ letter of 26 January 2016 seems to assume that if Mr Hill’s answers fall to be disregarded the application falls to be granted. That is not so. The Court still requires to be satisfied that a relevant case – a factual basis upon which the Court can grant the order sought – has been pled. That is not the case here. The Statement of Facts begins with an averment that the applicant is the tenant of the croft at Westside, Cunningsburgh. But that relates, as we understand it, only to the two merks of land which form area 5 on plan 1 attached to the application (production 4). Paragraph 2 contains a history of that croft but notes that all three merks were owned by William Alexander James Halcrow and that at the time of this Court’s 1935 order the single merk, area 6 on production 4, was tenanted by Robin Bain in succession to his mother. Paragraph 3 contains averments about what the applicant occupies for IACS purposes. Nowhere is a narrative given explaining how the applicant or her forbears came to have the tenancy once held by Robert Bain. In other words no explanation is given of how the applicant came to be the tenant of this land. And given that no rent has evidently ever been agreed, never mind paid, it is difficult to see how it can be said that a tenancy of any sort exists.

[10] The position, therefore, appears to be that the Court is being asked to declare the applicant the tenant simply on the basis that she and her forbears have occupied and worked the land for a long period of time. This Court is a practical court and seeks to provide solutions to crofting problems but, like any other court, it must not exceed its powers. As presently advised we are unable to grant the crave of the application. Rather than dismiss it at this stage, however, we have continued it for a period of four weeks to allow the applicant to amend her pleadings so as to state a relevant case.