THE COURT

(Lord Minginish, Mr J A Smith)

MACGILLIVRAY v CROFTING COMMISSION

(Application RN SLC/99/13 — Order of 18 December, 2014)

CROFTING — DECROFTING — CROFT PARTLY OWNER — OCCUPIED AND PARTLY TENANTED — APPEAL AGAINST DECISION OF COMMISSION TO REFUSE AS INCOMPETENT AN APPLICATION FOR DECROFTING BY OWNER-OCCUPIERS WHERE APPLICATION NOT CONCURRED IN BY LANDLORD OF TENANTED PART — WHETHER OWNERS OF CROFTS IN MULTI-OWNERSHIP HAVE RIGHTS OF COMMON INTEREST OVER WHOLE CROFT — SECS 23(11) AND 24(3) OF CROFTERS (SCOTLAND) ACT 1993

Section 24(3) of the Crofters (Scotland) Act 1993 (the 1993 Act”) provides that “Where a croft is vacant, the Commission may, on the application of the landlord, direct that the croft shall cease to be a croft or refuse to grant the application” and sec 23(11) says that “The provisions of this section and sections 24 and 25 of the Act shall have effect in relation to a part of a croft as they have effect in relation to a croft”. Section 61 defines “landlord” (so far as relevant for present purposes and unless the context otherwise requires) as “in relation to a croft, any person for the time being entitled to receive the rents and profits, or to take possession, of the croft”.

Elizabeth MacGillivray had been tenant of a croft at 37 North Ballachulish. In July 1993 she bought the croft from her landlord, Cameron of Lochiel, taking title in joint names with her husband, Donald. As owner-occupiers of the croft they applied to the Crofting Commission for a decrofting direction of an area of 1.3ha for the purpose of house building. The application was opposed and a hearing was held at which a question arose as to whether in fact Mr and Mrs MacGillivray had acquired title to the whole croft or whether a small part of it still remained in tenancy. The Commission refused the application as incompetent, holding that the whole croft had not been acquired by the MacGillivrays and on the view that, in these circumstances, an application to decroft any of the owner-occupied part of the croft was incompetent without the concurrence of the landlord of the part remaining in tenancy. The appellants appealed. The applicable law was the law as it stood before the amendments to the 1993 Act introduced by the Crofting Reform (Scotland) Act 2010. The appellants argued that sec 23(11) of the 1993 Act provided, without either qualification or limitation, that sec 24 of the Act was to “have effect in relation to a part of the croft as [it had] effect in relation to a croft” and that there was no basis for excluding the word “croft” where it first appeared in sec 24(3) from that provision. The result was that the landlord of part of a croft could apply for decrofting direction. Crofters Commission v Mackay 1997 SLT (Land Ct) 2, often cited as authority for the proposition that all sec 23(11) did was enable the Commission to exercise its letting and decrofting powers in relation to parts of crofts as well as to whole crofts, but only where the whole tenancy had been renounced, was distinguishable. The definition of “landlord” in sec 61 of the 1993 Act was subject to the qualification “unless the context otherwise requires” and here the context did otherwise require because where a croft was partly vacant and partly tenanted, the two parts being in separate ownership, there was no one person or entity entitled to receive the rents and profits or take possession of the croft. For the purposes of sec 24(3) where a vacant croft was in multiple ownership the context required “landlord” to be construed as referring to the landlord of the part to be decrofted and not to the landlords of the whole croft. The respondents argued that “landlord” in the 1993 Act was an indivisible concept, that there was no statutory warrant for treating it as meaning the landlord of only part of a croft and that, therefore, the concurrence of all landlords was required before any part could be decrofted. This was supported, it was said, by considerations of common interest among the owners of the various parts of a croft in the entity comprising the croft, which entity continued to exist even where the croft, or part of it, was vacant.

HELD, (i) that the simplest and most obvious meaning of sec 23(11) was that whenever there was a reference to a croft in secs 23, 24 and 25 of the Act that applied equally to part of a croft, (ii) that there was no reason, in law or in practice, to depart from that meaning, (iii) that Crofters Commission v Mackay (supra) was to be distinguished as dealing with partial surrender of a croft tenancy, for which there was no provision in the Act, whereas the Act positively contemplated situations of partial vacancy, (iv) that sec 24(3) therefore covered resumption of land where only part of a croft was vacant, (v) that there was no right of common interest as among owners of the several parts of a croft which required that they all concur in an application to decroft, the rights of parties in such situations being regulated by Parliament in the 1993 Act and not arising from any underlying common law rights, (vi) that, consistently with the foregoing, “landlord” in sec 24(3) required to be interpreted as referring to the landlord of the part in respect of which decrofting was sought, and appeal sustained, the respondents’ decision quashed and submissions on further procedure invited. (Note: it should be said that the landlord of the part of the croft still said to be in tenancy was not an objector to the application for decrofting, took no part in proceedings before the Commission and that this appeal was not, therefore, intimated to him.)

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

Introduction

[1] This is an appeal under sec 52A of the Crofters (Scotland) Act 1993 (“the Act” or “the 1993 Act”) against a decision of the respondents to refuse as incompetent an application by the appellants for a decrofting direction, in terms of sec 24(3) of the Act, in relation to an area of 1.3 ha of croft No 37 North Ballachulish for the purpose of building 10 houses.

[2] The issues in the appeal are (i) whether, where only part of a croft is vacant, it is competent to decroft that part, or any of it; and (ii) if that is competent, whether it requires the consent of the landlord of the tenanted part.

[3] The appellants are Donald Alexander MacGillivray and his wife, Mrs Elizabeth MacGillivray, who live at 6 Bail Ùr, Onich. Prior to 20 July 1993 Mrs McGillivray was the tenant of 37 North Ballachulish. On that date she and her husband acquired title to 1.9825 ha of land, being either the whole of that croft, as the appellants believe, or only part (much the greater part) of it, as the respondents have determined.

[4] The decrofting application was lodged on 24 March 2011. After sundry procedure, which included advertisement of the application, a public hearing was fixed for 13 May 2013. A few days before that hearing a solicitor representing the local Grazings Committee put in issue whether the appellants in fact owned the entire croft or whether part remained in tenancy. That matter was raised at the hearing on 13 May by the Commissioner conducting the hearing and was the subject of written submissions to the Commission by the applicants’ agents on 17 May. On 3 July 2013 the respondents wrote to the applicants’ solicitors returning the application as incompetent “on the basis that it is not clear from the plans provided whether part of the occupied croft extent (as shown by the Crofting Commission plan approved by the applicants) still remains in tenancy and how much of the croft is owned”.

[5] The appellants then brought this appeal but the respondents contended that their letter of 3 July did not constitute a decision or determination for the purposes of sec 52A and that, consequently, this court had no jurisdiction. We dealt with that objection on the basis of written submissions and by our order of 3 February 2014 held that the court did have jurisdiction and appointed a hearing on the appeal. That hearing took place at Edinburgh on 6 October 2014 when the appellants were represented by Mr Iain Maclean, advocate, and the respondents by Sir Crispin Agnew of Lochnaw QC. Although it was Mr Maclean’s appeal it was agreed between them that Sir Crispin would lead.

Legislation

Crofters (Scotland) Act 1993, secs. 3, 23, 24, 25, 52A & 61 as at 24 March 2011, the date of the application. Some of these provisions were subsequently amended by the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”) with effect from 1 October 2011 (Crofting Reform (Scotland) Act 2010 (Commencement No 2, Transitory, Transitional and Saving Provisions) Order 2011) but the following are quoted in their unamended form and subsequent references, unless otherwise stated, are to these unamended provisions. It is convenient to set out here the most relevant of them.

Sec 23 Vacant crofts

(1) Where –

(a) the landlord of a croft receives from the crofter a notice of renunciation of his tenancy or obtains from the Land Court an order for the removal of the crofter; or

(b) the landlord of the croft either gives to the executor of a deceased crofter, or receives from such an executor, notice terminating the tenancy of the croft in pursuance of section 16(3) of the 1964 Act [the Succession (Scotland) Act 1964]; or

(c) for any other reason the croft has become vacant otherwise than by virtue of a declaration by the Commission in the exercise of any power conferred on them by this Act;

the landlord shall within one month from –

(i) the receipt of the notice of renunciation of the tenancy, or

(ii) the date on which the Land Court made the order, or

(iii) the date on which the landlord gave or received notice terminating the tenancy, or

(iv) the date on which the vacancy came to the landlord’s knowledge,

as the case may be, give notice thereof to the Commission.

(3) The landlord of a croft shall not, without the approval of the Commission, let the croft or any part of it to any person; and any letting of the croft otherwise than with such approval shall be null and void.

(5) Subject to subsection (5A) below, where a croft is vacant the Commission may, at any time after the expiry of one month from the occurrence of the vacancy, give notice to the landlord requiring him to submit to them his proposals for re-letting the croft, whether as a separate croft or as an enlargement of another croft, and if, within a period of 2 months from the giving of such notice, no such proposals are submitted or such proposals are submitted but the Commission’s approval of them is not obtained, the Commission must proceed in accordance with subsections (5B) and (5C) below …

(10) For the purposes of this section and sections 24 and 25 of this Act, a croft shall be taken to be vacant notwithstanding that it is occupied, if it is occupied otherwise than by the tenant of the croft.

(11) The provisions of this section and sections 24 and 25 of this Act shall have effect in relation to a part of a croft as they have effect in relation to a croft.

(12) This section and section 24 of this Act shall have effect as if –

(a) a person who has become the owner-occupier of a croft were required under subsection (1) above within one month of the date on which he became such owner-occupier to give notice thereof to the Commission; and

(b) any reference in this section and section 24 of this Act, other than in subsection(1) above, to a landlord included a reference to an owner-occupier.

Sec 24 Decrofting in case or resumption or vacancy in croft

(2) Where a croft has, in consequence of the making of an order under section 22(1) of this Act, become vacant and has remained unlet for a period of 6 months beginning with the date on which the croft so became vacant, the Commission shall, if the landlord, at any time within 3 months after the expiry of the period aforesaid, gives notice to the Commission requiring them to do so

(a) forthwith or on the refusal of an application made under paragraph (b) below, or

(b) at the end of such further period as the Land Court, on the application of the Commission, may allow,

direct that the croft shall cease to be a croft.

(3) Where a croft is vacant, the Commission may, on the application of the landlord, direct that the croft shall cease to be a croft or refuse to grant the application; and if the Commission direct under this subsection or under subsection (2) above that a croft shall cease to be a croft then, subject to subsection (4) below, this Act shall cease to apply to the croft, without prejudice, however, to the subsequent exercise of any powers conferred by this Act for the enlargement of existing crofts.

Sec 25 Provisions supplementary to section 24(3)

(1) The Commission shall give a direction under section 24(3) of this Act that a croft shall cease to be a croft if –

(a) subject to subsection (2) below, they are satisfied that the applicant has applied for the direction in order that the croft may be used for or in connection with some reasonable purpose (within the meaning of section 20 of this Act) having relation to the good of the croft or of the estate or to the public interest or to the interests of the crofting community in the locality of the croft and that the extent of the land to which the application relates is not excessive in relation to that purpose; or

(b) the application is made in respect of a part of a croft, which consists only of the site of the dwelling-house on or pertaining to the croft and in respect of which a crofter is entitled at the time of the application, or has been entitled, to a conveyance by virtue of section 12(2) of this Act and they are satisfied that the extent of garden ground included in that part is appropriate for the reasonable enjoyment of the dwelling-house as a residence; or

(c) the application is made in respect of a croft the conveyance in feu of which was granted under section 17 or 18 of the 1955 Act.

(2) Without prejudice to subsection (1)(b) or (c) above, the Commission, in determining whether or not to give such a direction, shall have regard to the general interest of the crofting community in the district in which the croft is situated and in particular to the demand, if any, for a tenancy of the croft from persons who might reasonably be expected to obtain that tenancy if the croft were offered for letting on the open market on the date when they are considering the application.

(4) The Commission may, on the application of a crofter who is proposing to acquire croft land or the site of the dwelling-house on or pertaining to his croft, give a direction under the said sec 24(3) as if the land were a vacant croft and the application were made by the landlord, that in the event of such acquisition of the land it shall cease to be a croft, or refuse the application; but such a direction shall not have effect until the land to which it relates has been acquired by the crofter or his nominee and unless the acquisition is made within 5 years of the date of the giving of the direction.

(6) The Commission shall advertise all applications under the said section 24(3) or subsection (4) above (except an application made in respect of a part of a croft consisting only of the site of the dwelling-house on or pertaining to the croft or only of land the conveyance in feu of which was granted under section 17 or 18 of the 1955 Act) in one or more newspapers circulating in the district in which the croft to which the application relates is situated, and before disposing of such an application shall, if requested by the applicant, afford a hearing to the applicant and to such other person as they think fit.

(7) The Commission shall give both –

(a) notice in writing to the applicant; and

(b) public notification

of their direction on an application made to them under the said section 24(3) or subsection (4) above, specifying the nature of and the reasons for the direction and, as the case may be, for any conditions imposed in the direction

(8) As regards –

(a) a direction … by the Commission on an application –

(i) under section 24(3) of this Act, the applicant or any member of the crofting community in the locality of the land,

(ii) under subsection (4) above, the applicant or the owner of the land,

may within 42 days after the giving of public notification of the making of the direction,

appeal … to the Land Court.

Sec 61 Interpretation

(1) In this Act, unless the context otherwise requires –

“landlord” means –

(a) in relation to a croft, any person for the time being entitled to receive the rents and profits, or to take possession of, the croft; and

(b) [provision dealing with the site of the dwelling-house of a cottar]”

Authorities

Cameron v Bank of Scotland 1989 SLT (Land Ct) 38
Clydesdale Bank plc v Davidson 1998 SC (HL) 51
Crewpace Ltd v French 2012 SLT 126
Crofters Commission v Mackay 1997 SLT (Land Ct) 2
Crofting Commission Reference 2012 SLCR 159
Exrs of the late Mrs J M Graham v The Deanston Partnership SLC 1/13, order of 12 Feb, 2014
Imrie v Kerrigan SLC 11/06, order of 30 Feb, 2008
Lamont v Kennedy 2010 SLCR 76
Mackenzie v Bankes (1878) 5R (HL) 192
Magistrates of Banff v Ruthin Castle Ltd 1944 SC 36
Nevis Estates Ltd v Cameron 2011 SLCR 117
Serup v McCormick & Ors SLC 73/10, order of 18 April 2012
Sutherland v Maudslay 1990 SLT 298
Sutherland v Sutherland 1986 SLT (Land Ct) 22

Texts

Agnew, Crofting Law
Bell’s Principles, para 1086 (Common Interest)
Hon Lord Gill, The Law of Agricultural Holdings in Scotland, 3rd ed paras 3.05 and 3.12
Gordon, Land Law, 3rd ed, 15-17 to 15-24, 6-13
Stair Memorial Encyclopaedia, Vol 18 para 20 (Joint property), para 37 (Commonty)

Submissions

(i) for the respondents

[6] The appeal should be refused or, if allowed, remitted to the respondents for reconsideration. Alternatively a proof before answer should be fixed on the factual accuracy of the respondents’ determination as to the extent of ownership of the croft.

[7] In their decision letter the respondents had found as fact “that the occupied extent of the croft and the owned extent of the croft [did] not coincide” and that part of the croft remained tenanted. For present purposes these conclusions had to be accepted as correct. They meant that there were two owners of the entity of the croft, the appellants and the landlord of the tenanted part, Cameron of Lochiel. It was for consideration whether this appeal should have been intimated to him.

[8] The submission for the respondents was that in such circumstances all of the owners of a croft had to conjoin in making a decrofting application, even if they did not own that part covered by the decrofting application.

[9] That submission was based on the recognition of a croft as an entity which existed whether it was occupied by a tenant or an owner-occupier; an entity that could not be broken up or divided except by authority of the Crofting Commission or other statutory provision. This was clear from the scheme of the Act. Reference was made to sec 3(1) which refers to “every holding” in its description of the various types of holding that were crofts and to the following passage from the Crofting Commission Reference case:-

“[30]… Sec 19B [of the 1993 Act as amended by sec 34 of the 2010 Act] defines an “owner-occupier” as a person who owns a “croft”. This suggests an understanding of a croft as being an identifiable physical asset rather than as an item held in tenancy …”

[10] Even if a crofter bought part of his croft and the rest remained tenanted, the croft was not legally divided until subsequent intervention by the Crofting Commission; Lamont v Kennedy at para [46]. Similarly a partial renunciation of the lease of a croft was incompetent as a division of the croft without the consent of the Commission: Crofters Commission v Mackay.

[11] What Sir Crispin took from these cases was that a croft was an entity which existed whether tenanted, owner-occupied, or partially owned and partially tenanted. Partial ownership combined with partial tenancy did not break up the entity of the croft. Instead that entity continued to exist until broken up by authority of the Commission. Whilst none of these cases dealt with the present point, they disclosed an important underlying principle: that the croft entity continued to exist until broken up as aforesaid. The nature of that entity might be difficult to characterise but where different people owned different parts of a croft they had rights of common property or common interest in the whole croft.

[12] There were good reasons why all landlords should be required to conjoin in an application for decrofting. For example, a vacant croft which had to be relet may well be easier to let and a better rent achieved than might be achievable for a part of a croft let on its own. Also, if joint owners wanted to sell the croft, the whole might achieve a better price than the sale of parts. If one owner, acting on his own, sought a decrofting direction for the part of the croft he owned, that could prejudice the owner or owners of the other part or parts. It was the principle of preventing a single proprietor from prejudicing the interests of the others that underpinned the statutory construction being advanced by the respondents.

[13] Sir Crispin then turned to the statutory provisions. Section 23(10) provided that a croft was vacant if occupied other than by a crofter. Section 23(11) provided that the provisions of secs 23, 24 and 25 had effect “in relation to a part of a croft as they have effect in relation to a croft”. Sections 23 and 24 applied to an owner-occupier but sec 25 did not; sec 23(12). There was nothing in these sections to say that “landlord” included “part-landlord”. Although sec 23(11) could be read as meaning that an owner of only part of a croft could apply for a decrofting direction for that part (or for part of it) there was nothing in that provision which allowed the landlord to be divided. “Landlord” was a unitary term. If there were two people who owned different parts of the land comprising the croft the two of them comprised “the landlord”. The croft was an entity which “floated above” their ownership and in which each had a legal interest.

[14] As to the nature of that interest, looking for analogies, the situation was like that of owners of land around a loch. Each had his own land but all had the right to fish over the whole water; Gordon para 6-12 and 6-13, Mackenzie v Bankes, per Lord Blackburn at page 203.

[15] If there was no entity of the croft each owner could do what he wanted with his own part but, in fact, statute imposed this entity with the effect of preventing that. If there were two proprietors neither was allowed to do anything which might damage the entity without the consent of the other. The central provision was sec 24(3), which provided that, where a croft was vacant, the Commission could direct that it should cease to be a croft on the application of “the landlord”. Section 23(12)(b) made clear that any reference to a landlord in secs 23 and 24 included a reference to an owner-occupier. It was clear, therefore, that “landlord” comprised all the owners of the land which was subject to the entity of the croft, including owner-occupiers.

[16] Section 25(4) contained special provisions relating to decrofting of land or the site of the dwelling-house on a croft where the crofter was intending to buy the land or site in question. But these provisions applied only at the stage where the crofter was “proposing to acquire croft land”. At that stage the landlord would be involved in the process. Section 25(8)(a)(ii) provided a right of appeal for a landowner against a decision of the Commission on such an application, which presumed that he would have formally been made aware of the application. He would therefore have had an opportunity of protecting his interests.

[17] The rights of owners of different parts of crofts were in the nature of joint ownership, co-ownership or common interest. It was hard to define the nature of the interest precisely but it might be described as a “joint interest” or “joint ownership” which “floated above” their individual land ownership. When the croft was tenanted that interest took the form of the tenancy. When the croft was vacant it was the inchoate entity of the croft that floated above their ownership. This entity was indivisible except with the consent of the Commission or by some other statutory means. If an application was made to divide that interest, whether by decrofting or otherwise, the other joint owners, under the law of common property, required to conjoin in the application to divide.

[18] In attempting to analyse the nature of this shared right the concept of joint ownership was more appropriate than pro indiviso ownership because none of the landowners had a share in the entity that could be sold, burdened or transferred, albeit they could sell, burden or transfer the land itself. Reference was made to the Stair Memorial Encyclopaedia Vol 18 para 20 on Joint Property and to Magistrates of Banff v Ruthin Castle Ltd, per the Lord Justice-Clerk at page 68.

[19] There were also some analogies with “commonty”, which was an inseparable pertinent of land held in common, such as the right to graze, which could not be divided until legislation was introduced permitting division. It was in the nature of a right floating over the land (Stair Memorial Encyclopaedia Vol 18 para 37), just as the entity of a croft did.

[20] Notwithstanding his earlier submission that the situation was one more of joint, rather than common, property, Sir Crispin, perhaps using the term more colloquially, submitted that there was, effectively, “common ownership” of the entity of the croft. As a species of common property, the law required all co-owners to share in the management of the property and to consent to any alterations to the property (as by applying for decrofting). Co-owners could prevent encroachment on the common subjects and decrofting involved such encroachment. Reference was made to Gordon, Scottish Land Law at page 15-24 for the foregoing features of common property and to Clydesdale Bank plc v Davidson, per Lord Clyde at pages 59-60.

[21] There were various references in the 1993 Act to parts of a croft (e.g. secs 7 and 23) but nowhere was it said that the landlord would include a landlord of a part of a croft, or a part-landlord. Where the Act required the landlord to do something, that was a reference to a single entity but one which could be made up of a number of individuals. For example, a request for an increase in rent or an application to the court to fix a rent had to be by all the owners. So did consent to a bequest. If unanimity was required for some purposes it was required for all. Thus they all had to conjoin in an application for resumption.

[22] It was generally true in the law of leases that where there were a number of landlords of the leased subject they all had to conjoin in giving notices to the tenant and likewise, mutatis mutandis, where there were a number of tenants. In these cases too the lease was an entity floating over all the different landownerships. For the general principle in reference to agricultural holdings reference was made to Gill at paras 3.05 and 3.12. Nevis Estates Ltd v Cameron was an example of a joint application by all the landlords of leased subjects in order that one of them could resume the land belonging to him.

[23] Crewpace Ltd v French was to opposite effect but it had been wrongly argued and wrongly decided. The Temporary Judge, as Lady Wise then was, had failed to appreciate the point being made in Gill (supra) about the landlord comprising the totality of the proprietors. In any event it was distinguishable as having involved the lease of an agricultural holding rather than a croft. An agricultural holding did not retain its legal character once the lease was at an end, whereas a croft did.

[24] Questioned by the court as was to whether the right being described was one which would be enforceable by interdict Sir Crispin confirmed that it was. In this case Cameron of Lochiel could have interdicted the MacGillivrays from unilaterally applying for a decrofting direction if the granting of such a direction was going to harm his interests.

[25] For all of the foregoing reasons the respondents had been correct to hold the application incompetent. The appeal should therefore be dismissed. Alternatively, if the court was to hold that the respondents had been wrong, the case should be remitted to them for reconsideration of their decision.

[26] Should a proof before answer come to be required on the question whether the respondents had evidence to justify their finding in fact that that the croft was part tenanted and part owner-occupied there was a question as to whether this court had jurisdiction to decide that matter, since it involved questions of heritable title.

(ii) for the appellants

[27] Mr Maclean made a number of points arising out of Sir Crispin’s submissions.

[28] Reference to sec 25(1)(b) was of no assistance to the respondents. It was dealing with the situation where the crofter was applying to decroft in anticipation of purchase. In that context he was being treated as if he was the landlord. The crofter also had an absolute right to a conveyance of his house site and it was not necessary for him to show that decrofting was being sought for a reasonable purpose.

[29] Sir Crispin had sought to support his interpretation of the legislation by reference to analogies. He had compared the right held by proprietors of crofts in multi-ownership variously to joint property, common property and commonty. He had conceded that the analogies were not precise. One should be wary, particularly in the context of crofting law, of confirming the interpretation of statute by reference to analogy, but, if it was to be done, the analogies had to be much more precise than the ones advanced here. Joint property, common property and commonty were all distinctive and different from each other. Attempts at analogy here were “like nailing jelly to a wall”.

[30] What the authorities told us, however, was that crofting law was largely based on statute and that where there was no explicit statutory provision the common law must be applied; Lamont v Kennedy at para [29]. In the present case, if we were with Mr Maclean on his preferred construction of secs 24(3) and 23(11), there was an explicit statutory provision, capable of straightforward application, and there was no need to rely on underlying common law principles. And if there was competition between statute and common law, the statute must prevail; Crofting Commission Reference para [19].

[31] Where a croft in multiple ownership was vacant the various owners may get together to let the land but there was no mechanism to compel them to do so. The question was whether the possibility that they may come together justified interpreting the provisions so as to give the owner of a de minimis part a veto over a decrofting application relating to another part of the croft. What real, practical interest did an owner such as this have as to whether the rest of the land remained in crofting or not?

[32] If the position was that every applicant for decrofting now had to provide conclusive proof of title, the practical consequences were a matter of some concern. On the respondents’ absolutist position, however minor a discrepancy as between extent of croft and extent of heritable title the Commission found, it would operate as an absolute veto on decrofting. If the other owner happened to be in, for example, Australia and could not be contacted the decrofting could not go ahead. Or, if the two owners were at loggerheads, the owner of the part still held in tenancy could thwart the application.

[33] Turning to his own submissions, Mr Maclean identified the issue as being the true meaning and effect of secs 23(11) and 24(3) of the 1993 Act. The question whether, if 99% of the croft were purchased by the tenant, leaving 1% in nominal tenancy, that would preclude decrofting by the tenant was a highly pertinent one. It was the appellants’ position that the respondents had erred in law in proceeding on the basis that, esto any part of the croft remained in tenancy, then their decrofting application required to be submitted by both themselves (as the owners of the vacant part) and the landlord of the tenanted part, even if the land to be decrofted was situated entirely within the vacant part.

[34] The respondents’ absolutist position did not seem to allow of any de minimis exception, which, given the inherent limitations of scale of the OS mapping of rural subjects which would inform the contents of the new Crofting Register, would make every decrofting application potentially problematic.

[35] At para [50] of the note attached to its order of 21 July 2014 in this case, the court had distinguished between two propositions, one broad and one narrower. The broad proposition was that an application for decrofting by an applicant who did not own the whole croft was incompetent. The narrower proposition was that there could only be decrofting of part of a croft if the whole of that part was owned by the applicant. It had not been clear from the respondents’ decision letter which proposition was being relied upon but in any event the narrower one was not likely to be problematic because there was no dubiety about the position: a person could not apply to decroft land he did not own and where, through inadvertence or otherwise, a decrofting direction was granted for subjects not owned it was vulnerable to reduction; Imrie v Kerrigan, Sutherland v Maudslay.

[36] The latter of these cases involved a croft in divided ownership and the partial reduction of an ultra vires decrofting direction to restrict it to that part of the croft which was vacant, excluding from the direction another part of the croft which was not vacant but held in tenancy. The fact that part of the croft was tenanted had not prevented the decrofting direction being confirmed in respect of the part which was vacant.

[37] Turning to the relevant statutory regime, all decrofting applications made after 1 October 2011 were affected by the amendments introduced by sec 43 of the Crofting Reform (Scotland) Act 2010; The Crofting Reform (Scotland) Act 2010 (Commencement No. 2, Transitory, Transitional and Saving Provisions) Order 2011 (SSI 2011 No. 334). This application, having been made before that date, was not affected by these amendments.

[38] Mr Maclean referred to sec 23(11) of the Act. Crofters Commission v Mackay was often cited as authority for the proposition that the effect of the subsection was “to enable the Commission to exercise its letting and decrofting powers in relation to parts of crofts as well as to whole crofts, but those powers only become available if the tenancy of the whole croft is renounced”; Agnew, Crofting Law at page 107, note 8. The argument in support of that was that when a tenant purchased his or her croft the tenancy was extinguished confusio and the croft deemed to be vacant (at least as the law was prior to 1 October 2011) but where the tenant purchased only part of the croft the tenancy of the whole was not extinguished.

[39] However, as Lord Elliot had explained in Sutherland v Sutherland, crofting, for all its statutory overlay, was fundamentally a relationship of landlord and tenant, and while crofting tenure was sui generis and unlike other forms of leasehold tenure in many respects, it remained a special variety of leasehold, albeit with some features of ownership. That being so, when a croft was purchased by its tenant the principle of confusio operated and the lesser right of the tenant was absorbed into the greater right of the owner; cf. Clydesdale Bank plc v Davidson, per Lord Hope of Craighead at page 56. In Serup v McCormick & Others the Land Court had rejected a submission that the right of the tenant under an agricultural lease was simply suspended while the two rights were held by one person and revived when the passed into separate ownership once more. The court had noted that it had not been directed to any authority supporting the suspension of a lease as opposed to its total extinction.

[40] Because a crofter who purchased his croft could no longer be a crofter in terms of the statutory definition (“crofter” being defined in sec 3(3) of the 1993 Act as meaning the tenant of a croft), and because the purchase by a tenant of his croft, whilst operating to extinguish his own tenancy, did not remove the land from crofting controls, it had become customary to refer to a tenant who had purchased his croft as “the landlord (or owner-occupier) of a vacant croft”. However, as had been observed byLord Elliot in Cameron v. Bank of Scotland at page 40 F,

"It is … a misnomer to refer to an owner occupier who has purchased his croft as being ‘the landlord of a vacant croft’. For in legal terms a person can only be a landlord in a tenancy situation; and while crofting tenure is sui generis it is still a variety of leasehold."

[41] The 2010 Act had, therefore, introduced into the crofting legislation the concept of the “owner-occupier crofter”, to whom the duties of residence, not to misuse or neglect the croft and to cultivate it or put it to another purposeful use, previously incumbent on tenant crofters, were extended. Sec 19B(1) of the 1993 Act as amended provided that in the 1993 Act, a person was an "owner-occupier crofter" if all the conditions in subsecs (2) to (4) of sec 19B were satisfied. The first condition was that "the person is the owner of a croft." Sec 23(10) of the 1993 Act had been amended by paragraph 3(14)(g) of Schedule 4 to the 2010 Act to provide that for the purposes of sec 23-25 of the 1993 Act,

“a croft shall be taken to be vacant notwithstanding that it is occupied, if it is occupied otherwise than by-

(a) the tenant of the croft;

(b) the owner-occupier crofter of the croft;

(c) the subtenant of a sublet to which sec 27 [of the 1993 Act] applies; or

(d) the tenant of a let to which sec 29 A [of the 1993 Act] applies.”

[42] Difficulties had been perceived to have arisen in consequence of these amendments, the most widely publicised of which concerned the entitlement of a person who satisfied the statutory definition set out in sec 19B of the 1993 Act, and who had in consequence the status of “owner-occupier crofter”, to apply in terms of sec 23(4) of the Act for a decrofting direction. The respondents had reportedly received advice that an owner-occupier crofter could not apply to decroft because in consequence of the provisions of sec 23(10)(b) of the 1993 Act, a croft was not vacant if it was occupied by the owner-occupier crofter. Although the interpretation of sec 23(10)(b) of the 1993 Act which had led to that conclusion was far from being universally accepted by crofting lawyers, the Scottish Parliament had, nonetheless, passed corrective legislation in the form of the Crofting (Amendment) (Scotland) Act 2013 (“the 2013 Act”) to put beyond doubt that an owner-occupier crofter was entitled to apply for a decrofting direction in respect of part or all of his croft. The 2013 Act had not, however, addressed a further difficulty which had been identified arising out of the statutory definition of “owner-occupier crofter”, namely that the first condition to be satisfied if a person is to come within that definition is that the person “is the owner of a croft”. Prima facie, this excluded persons who were the owners of part only of a croft. Indeed the Explanatory Notes to the Crofting (Amendment) (Scotland) Bill (SP Bill 31) as introduced in the Scottish Parliament on 9 May 2013 had not acknowledged that any such difficulty existed. On the contrary, having observed that the 1993 Act, as amended by the 2010 Act, distinguished between an owner-occupier (owning and working the croft but not meeting the conditions in sec 19B of the 1993 Act) and an “owner-occupier crofter” (one who did meet those conditions), it was suggested in the Explanatory Notes to the Crofting (Amendment) (Scotland) Bill at paragraph 6 that:

“For the purposes of the decrofting provisions in the 1993 Act, sec 23(10) was amended by the 2010 Act to provide that a croft is not vacant if it is occupied by the owner-occupier crofter. Other owner-occupiers of crofts, who were not owner-occupier crofters, were unaffected and they could still, and still can, apply to decroft as if they were Landlords of vacant crofts.”

[43] Given that just about the most obvious example of a an owner-occupier who did not meet the conditions of sec 19B of the 1993 Act would be a crofter who had purchased part only of his croft, the logical implication thereof seemed to be that the Scottish Parliament, in enacting the corrective 2013 Act, had proceeded upon the basis that it was no objection to a decrofting application by an owner-occupier that he was not the owner of the whole of his croft. Furthermore, where [part of] a croft was occupied by an owner-occupier, it was occupied otherwise than by (a) the tenant of the croft; (b) the owner-occupier crofter of the croft; (c) the subtenant of a sublet to which sec 27 of the 1993 Act applied; or (d) the tenant of a let to which sec 29 A of the 1993 Act applied, and, as such, it must, in terms of sec 23 (10) of the 1993 Act, be taken to be vacant for the purposes of sec 23-25 of the 1993 Act.

[44] Mr Maclean then turned to the policy which, he said, the respondents appeared to have adopted in holding that, where any part of the croft was not vacant, a decrofting application was incompetent. The respondents had proceeded on the basis that where there were crofts in multiple ownership, any application to decroft or to let must be submitted by all of the different owners as, collectively, “the landlord”. At a Board Meeting on 14 December 2012 they had agreed to adopt a “policy” to that effect, which policy had been promulgated on their website since 22 February 2013. Since then the respondents had stated (policy guidance posted on their website on 15 August 2013) that the policy decided at their Board Meeting on 14 December 2012:

“[did] not address the situation where only one part of the croft has been purchased by the tenant. In these cases the whole croft is not vacant, part of the croft remains tenanted and only the purchased part of the croft is vacant. The Commission therefore considered application requirements where the part croft owner sought to decroft or let their vacant part of the croft.

At its Board Meeting on 7 August 2013 the Commission decided that applications where the croft is part tenanted and part vacant have to be submitted by all the part owners (the owner of the vacant and the landlord of the tenanted part) in their capacity as collectively the landlord of the croft.”

[45] It was not obvious to the appellants that the decision taken by the Respondents at their Board Meeting on 7 August 2013 had added anything to the policy adopted by them after their Board Meeting on 14 December 2012, in as much as the situation where only part of the croft had been purchased by the tenant, so that only part of the croft was vacant, could not but be a case of a croft in multiple ownership, and as such would have been covered by the policy which the respondents had decided upon on 14 December 2012. More fundamentally, however, what the respondents had referred to as a “policy” in relation to how decrofting applications affecting crofts in multiple ownership were to be dealt with had been, in substance, simply a decision on their part to apply a particular interpretation of the relevant statutory provisions. That interpretation may or may not, ultimately, be found to be lawful, but it was not an interpretation that had ever been properly tested in the courts. The Land Court had not had the benefit of hearing the response of a legally qualified contradictor to the submissions provided on behalf of the Crofters Commission in Crofters Commission v Mackay, op. cit., and the observations made by the Land Court about that case in Lamont v Kennedyat paragraphs [47]-[48] confirmed that it was not necessarily the last word even on the issues directly canvassed therein, which concerned the purported renunciation or abandonment of part of a croft, and whether this amounted to a sub-division struck at by sec 9 of the 1993 Act. On no view could the decision in Crofters Commission v Mackay in relation to resumption (Mr Maclean referred to resumption but the case in fact concerned decrofting) be considered to be determinative of the legal issue in relation to decrofting focused in the present case.

[46] Mr Maclean then turned to the definition of “landlord” in sec 61 of the 1993 Act. So far as relevant it is quoted above in its unamended form. It was because of that definition that the respondents had formed the view that in a situation of multiple ownership all of the owners must join in any application to decroft any part of the croft.

[47] However, where multiple ownership was the result of a crofter purchasing part only of his croft, so that he owned part but remained the tenant of the balance, having the landlord of the tenanted part conjoin in a subsequent decrofting application in relation to the purchased part did not make the whole croft vacant. This was a major flaw in the respondents’ argument. If the argument in relation to sec 23 rested on the croft not being vacant in its entirety, conjoining the landlord or the tenanted part did not cure that problem.

[48] Mr Maclean then considered the situation of a croft in multiple ownership which was wholly vacant (as where the tenant had purchased the whole croft and thereafter sold off the constituent parts to other people). What were the merits of the respondents’ interpretation of the statutory definition of “landlord” in that case?

[49] In the first place, it had to be borne in mind that sec 61 of the 1993 Act provided that the terms listed therein should bear the meanings specified therein “unless the context otherwise requires.” Inthe drafting of statutes, various different sorts of definition were employed. Some provided an exhaustive definition of an expression (using the word "means"). Some ensured that an expression was treated as covering something which was not, or may not be, within its ordinary meaning (as by the use of the word "includes"). Others ensured that an expressiondid not cover something which was, or may be, within the ordinary meaning (as by the use of the phrase "does not include").The latter two forms of definition were non-exhaustive. Another formulation was that the definition was to apply "except where the contrary intention is expressed".

[50] Sec 61(1) of the 1993 Act did not purport to be exhaustive, but expressly acknowledged that the context in which an expression appeared may point to a different usage. Thus, even if the term “landlord”, according to the statutory definition, would ordinarily mean any person (whether individually or collectively) for the time being entitled to receive the rents and profits, or to take possession of the whole croft, that would not preclude this court from holding that, in the context of sec 24 (3) of the 1993 Act, a different meaning had to be adopted. Where a croft was vacant because the tenancy thereof had been extinguished confusio, and different parts thereof had come into different ownerships, there was no individual or collective person entitled to receive the rents and profits, or to take possession of, the croft as a whole: there were instead a number of persons each entitled to receive the profits, or to take possession of, the individual constituent parts. No owner of one constituent part had any right to the profits arising from, or to take possession of, any other constituent part thereof in different ownership, and following the extinction of the tenancy there was no longer any cumulo rent applicable to the whole croft and, indeed, in the absence of tenants, no rents were receivable at all. Where the constituent parts of a croft were not subject to a unitary lease, it was surely something of a misnomer to characterise the multiple owners of those constituent parts for the time being collectively as the “landlord”.

[51] Sec 23(11) of the 1993 Act provided, without either qualification or limitation, that sec 24 of the 1993 Act was to “have effect in relation to a part of the croft as [it had] effect in relation to a croft.” There was no basis for excluding the word “croft” where it first appeared in sec 24(3) from the scope of that ordinance. That being the case, it must follow that where an application to decroft in terms of sec 24(3) of the 1993 Act was made in respect of part of a vacant croft in multiple ownership, the context may require that the term “landlord” be construed as referring to the landlord of that part and not to the landlords of the whole croft. That approach to the construction of sec 24 (3) of the 1993 Act was easier to accommodate within the overall structure of crofting law than the alternative approach which has been adopted by the Respondents.

[52] In conclusion, Mr Maclean submitted that the respondents' policy on decrofting in cases of multiple ownership was riven by anomalies.

[53] In the first place, it entailed that where a crofter purchased part only of his croft, with the other part remaining in tenancy, he could proceed with an application to decroft part of the purchased part, provided that he got the landlord of the part remaining in tenancy to conjoin with him in his application, notwithstanding that in those circumstances, on any view, part of the croft was not “vacant” as sec 24(3) of the 1993 Act ostensibly (and the respondents' argument) required.

[54] Secondly, where a croft was in multiple ownership with no part remaining in tenancy the owner of one part could proceed with an application to decroft part of what he owned, provided that he got all of the owners of the other parts to conjoin with him in that application, notwithstanding that, on any view, they were not the “landlord” of the part in respect of which the application had been made. If the matter was approached from the perspective of interest (whether in the technical legal sense or more colloquially), it was not obvious what interest the owners of the other parts of a croft in multiple ownership had in the continuing croft status of another part, the protection of which was considered sufficiently important to confer on them what amounted to an absolute right of veto on any application by one of the other owners to decroft.

[55] The appellants’ submission was that if sec 23(11) of the 1993 Act was to receive proper effect, sec 24(3) must be read as if, in relation to a part of a croft, it provided:

“Where a part of a croft is vacant, the Commission may, on the application of the landlord of that part, direct that the part of a croft shall cease to be a part of a croft or refuse to grant the application; and if the Commission direct under this subsection or under subsection (2) above that a part of a croft shall cease to be a part of a croft then, subject to subsection (4) below, this Act shall cease to apply to the part of a croft, without prejudice to the subsequent exercise of any powers conferred by this Act for the enlargement of existing crofts.”

[56] Section 24(3) could not apply to a part of a croft only where there had already been a consent to division, because in terms of sec 9(6) of the 1993 Act, “division” meant “the division of a croft into two or more new crofts,” and “new crofts” meant “each of the new crofts created by the division of the original croft.” The new crofts were no longer part of the original croft because the original croft had ceased to exist.

[57] If, looked at in isolation from sec 23(11), the words “the landlord” where they first appeared in sec 24(3) referred to the landlord of the vacant croft, then when sec 23(11) was taken into account, extending the scope of sec 24(3) to the situation where only a part of a croft was vacant, the words “the landlord” in those circumstances could properly be construed as applying to the owner-occupier of the vacant part of the croft. The proviso in sec 24 (3) that where the Commission directed that a croft was to cease to be a croft it was without prejudice to the subsequent exercise of any powers conferred by the 1993 Act for the enlargement of existing crofts could operate in relation to a part of a croft just as it did in relation to a whole croft. On that approach to the construction of sec 24(3), it would follow that so long as the appellants had a recorded title habile to include all of that part of croft 37 which they sought to decroft, it would not matter, for the purposes of their decrofting application, that some other part (especially if de minimis) remained nominally in tenancy. The landlord of such other part would have no interest in the area to be decrofted: cfCrewpace Ltd v Frenchand see the (obiter) discussion in Executors of the late Mrs J M Graham v The Deanston Partnershipat paras [31] - [34].

[58] In the Crewpace the Temporary Judge had said:

“A landlord’s interest is, in my view, inextricably linked to his title. No authority was cited by counsel for the pursuers in support of a proposition that, by acquiring land that was subject to a tenancy involving that land and land owned by another, the owner of one part somehow acquired a right in respect of the other part.” [para 41]

[59] Sir Crispin had sought to distinguish Crewpace but the definition of “landlord” in the agricultural holdings legislation was essentially the same as in the 1993 Act. Moreover, if a croft was a floating metaphysical entity of the kind described by Sir Crispin, it was not clear that the same could not be said about an agricultural holding.

[60] In Executors of Mrs J M Graham v The Deanston Partnership, the Land Court, comprising Lord McGhie and Mr Smith, had commented, obiter, that:

“A requirement that the landlords must act together can present real practical difficulties and it is not clear that the legitimate interests of the tenant require such an approach in every situation. For present purposes it is enough to say that we find some attraction in the view that the need for joint action should be limited to cases where that is clearly justified by the requirements of statute or the protection of an identified interest.”[para [34]]

[61] Applying that approach, in a situation where, as here, the legislation was at best ambiguous, then, in order to persuade this court that it should favour the position that all of the multiple owners of a croft in divided ownership must conjoin in any application by one of their number to decroft any of the part in his or her ownership, the respondents would have to show that those other owners had an identified (or identifiable) interest sufficiently important to justify having such a right of veto. It was far from obvious how they might do that.

[62] There was, in Mr Maclean’s submission, a hint in the respondents’ approach to this interpretive issue that they may be using it as an excuse or pretext for refusing applications to decroft. If that was indeed what they were doing it was not legitimate. The respondents had not advanced any compelling reason of policy why a decrofting application, if otherwise unobjectionable, should not be authorised in circumstances such as those of the present case. In Lamont v Kennedyit had been recognised by this court, as the second important proposition listed at paragraph [39], that the 1993 Act:

"provides for the crofter to purchase any part of his croft. He is not obliged to buy all or nothing".

[63] Accordingly, the question was begged why, where the crofter had, for whatever reason, purchased less than the whole of his croft (perhaps for a reason as arbitrary as because an apportionment was not adjacent or contiguous to any other part of the croft in terms of sec 12(3)(b)(i) of the 1993 Act) he should, for that reason only, be precluded from applying to decroft part of the area which he had bought. The answer to that question could not be anything to do with the practical problems which were perceived to be caused to the respondents by situations of multiple ownership, precisely because it was the multiple ownership situation, and not the fact of the decrofting application having being made by someone who had not purchased the whole of his croft, which lay at the root of those problems.

[64] The third important legal proposition endorsed in Lamont v Kennedy(at paras [40] - [41]) was that purchase of part of a croft "inevitably brings an end to the tenancy of that part. It creates a vacancy." Acceptance of that proposition was:

"implicit in recognition of the concept of owner-occupier. It has statutory authority. For example, the Commission is empowered by the provisions of sec 24(3) to make a decrofting direction in certain circumstances. One example is where the crofter has bought his house: see sec 25(1)(b). As there is no explicit provision saying that where a crofter buys part of the croft consisting of a house site, that part becomes vacant, it is clear that the Act simply proceeds on the basis of the common law concept [i.e. of confusio]. The tenancy becomes vacant because the landlord cannot be his own tenant. It may be noted that Parliament plainly proceeds on an understanding that a person who has bought part of his or her croft is to be treated as landlord of that part alone and that the former crofter does not become joint landlord of the whole croft. We must give effect to that understanding. If the purchase of part had the effect of making the crofter a joint landlord of the whole, his or her position as tenant of the whole would be undermined."

[65] If it was correct that, in enacting the sections of the 1993 Act concerning vacant croft and decrofting, Parliament had proceeded on an understanding that a person who had bought part of his or her croft was to be treated as landlord of that part alone, then it followed that the decision appealed against was not well founded in law. The appeal should therefore be sustained.

[66] So far as procedure thereafter was concerned, what should happen next was not straightforward and it may be appropriate for us to invite parties back to court with their proposals thereanent.

(iii) Sir Crispin in response

[67] Sir Crispin made reference to Bell’s Principles at para 1086 on the nature of common interest. He took from it that where there was a common interest the court could regulate it in terms of law or equity. For example a Judicial Factor could be appointed to carry out the management of the common interest. The Judicial Factor in a case such as this one would stand in the shoes of the objecting landlord. Appointment of such a person may add another level of difficulty but it was a mechanism by which a court, although not this court, could regulate matters in equity.

[68] The de minimis point was not one for today. Today we were dealing with the matter as one of principle. Whether de minimis arose in this case would depend on the facts; on precisely how much of the croft remained in tenancy.

[69] We did not have the full facts of Sutherland v Maudslay but it had been decided as long ago as 1965 and the terms of the then current legislation would have be to be checked. It appeared to concern a house site and relative ground only. One would need to know how one part had come to be vacant. So the case had to be treated with caution.

[70] Nor could we rely on the terms of the 2013 Act. It had been passed to remedy one specific problem. That did not mean that there were no other problems remaining to be solved. Sir Crispin had appeared before the Scottish Parliament’s Rural Affairs Committee in connection with the passage of the bill that had become the 2013 Act and the relevant government minister had given an undertaking that consideration would be given to another remedial Act. Also the Scottish Government currently had a working party dealing with the problems identified by the Crofting Law Group “sump”. Accordingly the state of the law was not settled.

[71] So far as the definition of “landlord” in sec 61 was concerned, “requires” (as in “unless the context otherwise requires”) was quite a strong word and there was no requirement to construe “landlord” as “landlord of part of a croft”. Even where only part of a croft was vacant an application to decroft that part or any of it had to be made by the “landlord” and that was the totality of the proprietors of the land comprising the croft.

[72] Despite what had been said by Lord Elliot in Cameron v Bank of Scotland, an owner-occupier was still the landlord of a vacant croft for the purposes of sec 23. That section imposed duties on the landlord where a croft was vacant. Although, the croft being vacant, the landlord was no longer technically the landlord, the section still spoke of him as landlord.

[73] Mr Maclean had argued that it had not been shown what interest a proprietor would have in the decrofting of land which he did not own. The example of getting a higher rent had been given but a better example might be the need to take access across the rest of the croft or the situation where the only supply of water on the croft was on the land to be decrofted. If one person could decroft without reference to the other owner, the other owner might suddenly find that his tenant did not have access to water and other things which the tenant had hitherto enjoyed. It was because of that sort of inter-relationship that one could see why the landlords had to combine in a decrofting application. It was significant, also, that there was no requirement to notify a decrofting application to the other proprietors so that they could enter the process. That was because they were assumed to be in the process already as joint applicants. So far as sec 25(4) was concerned, that provision said a crofter who was proposing to acquire croft land could apply for decrofting “as if the land were a vacant croft and the application were made by the landlord”. Accordingly the crofter was being treated as the landlord.

[74] The issue always came back to the fact that it was the landlord who had to apply. Examples had been given of identifiable interests which might arise in particular circumstances but to expect the Crofting Commission to enquire as to whether there were such interests in a particular case was to add an unnecessary fact-finding stage to the process and a potentially difficult one at that. A general requirement for all decrofting applications to be concurred in by all proprietors obviated that.

[75] So far as the “floating entity” of the croft was concerned, a croft was distinguishable in this context from an agricultural holding. When the lease of an agricultural holding came to an end the entity which was the tenancy came to an end but where the tenancy of a croft came to an end the entity of the croft remained. Crewpace and Graham were distinguishable on that basis.

[76] Mr Maclean had relied on what had been said at para [41] of Lamont to the effect that a person who has bought part of his or her croft is to be treated as landlord of that part alone and does not become the joint landlord of the whole croft. However that overlooked the provisions of sec 23(12)(b) which stated that for the purposes of secs 23 and 24 references to “a landlord” included references to owner-occupiers.

[77] Mr Maclean had also relied on para [29] of Lamont but what was said there supported the respondents’ position rather than the appellants’. For the purposes of the present case, what it meant was that if the meaning of “landlord” was ambiguous or not apt to cover all possibilities it was necessary to look at common law principles. The relevant common law principles here had to do with the analogies with common interest and common property already referred to. Where there was common interest or common property there had to be unanimity in management decisions. That was the situation here and it supported the view that “landlord” was to be taken as meaning the totality of the proprietors. Mr Maclean had suggested that it was unlikely that the landlords would all get together to re-let a vacant croft and had submitted that there was no mechanism to compel them to do so. But there was such a mechanism: sec 23(5) empowered the Crofting Commission to order re-letting. So, contrary to Mr Maclean’s submission, it was very likely that all the landlords would get together. Section 24(3) was perfectly workable with the “landlord” being defined as the whole body of proprietors of the croft.

[78] Finally, Sir Crispin denied that the respondents’ approach was riven with anomalies. One was concerned with the body which comprised the landlord and sec 23(12)(b) expressly said that “landlord” included owner-occupiers. That was consistent with Lord Gill’s approach, treating all of the proprietors together as comprising the landlord of an agricultural holding. It was also consistent with the commonality of interests which the proprietors had in a croft.

(iv) Mr Maclean in response

[79] Mr Maclean made a number of brief points in response. Firstly, so far as risk of prejudice was concerned, decrofting applications required to be advertised and that afforded an opportunity for objection by proprietors of other parts of the croft among others.

Secondly, contrary to Sir Crispin’s submission the de minimis argument was one for today. The issue we were here to determine made it legitimate to raise the question whether the respondents’ argument still held good in the de minimis situation. Thirdly, the suggestion of an equitable remedy to the problem of a fellow proprietor refusing to conjoin in a decrofting application was wholly without foundation in law. It was at odds with Sir Crispin’s submission as to the meaning of landlord. If the correct interpretation of that term in this context was all of the proprietors that was an end of the matter and there could be no question of remedy in equity to avoid the consequences of that interpretation. Fourthly, so far as sec 23(12)(b) was concerned, what the subsection said about references to “landlord” including references to owner-occupiers was an example of a statutory definition extending the meaning of a word beyond its normal scope. An owner-occupier was not, in fact, a landlord but was being treated as a landlord for the purposes of secs 23 and 24. If “landlord” meant the totality of persons owning the land comprising the croft there would be no need for this express provision dealing with owner-occupiers. Finally, there was an anomaly in requiring Lochiel, as owner of the tenanted part of the croft, to conjoin in this application when the first requirement of an application to decroft was that the croft be vacant. The respondents’ approach failed to give appropriate weight to that requirement.

(v) Sir Crispin

[80] Sir Crispin requested to be allowed to make two short points in clarification of his earlier submissions. The first was that, so far as a mechanism for securing the consent of a recalcitrant proprietor was concerned, the person appointed by the court (as Judicial Factor) would take the place of that proprietor and become one of the proprietors comprising the landlord. There was, accordingly, no conflict between the respondents’ definition of “landlord” and the operation of such a mechanism.

[81] Secondly, so far as owner-occupiers were concerned, where an occupier was the owner-occupier of the whole croft he was to be regarded as the landlord (in terms of sec 23(12)(b)). Where he was the owner-occupier of only part of the croft, sec 23(11) had the effect of extending sec 23(12)(b) to that situation also and he fell to be treated as one of the proprietors comprising the landlord.

Discussion

[82] This appeal gives rise to three questions:-

(i) whether the whole of a croft must be vacant before decrofting of any part of it is competent;

(ii) whether, if the answer to the first question is in the negative, the consent of the landlord of the part remaining in tenancy is necessary before any of the vacant part can be decrofted; and

(iii) whether the position is different where a croft is owned by more than one person but is wholly vacant.

Question 1: whether the whole croft must be vacant before decrofting of any part is competent

[83] This question arises because the proposition that the whole croft must be vacant appears to be the basis, or one of the bases, of the decision appealed against. At appeal, however, the respondents’ position seemed to be that the whole croft need not be vacant as long as the landlord of the part which is not vacant conjoins in the application for decrofting. Thus, the main thrust of Sir Crispin’s argument was directed at the unitary nature of a croft landlord: to question 2 below, rather than to the present question. But the present question also arises because of what was said in Crofters Commission v Mackay to the effect that the reletting and decrofting provisions of secs 23, 24 and 25 come into play only where the whole croft is vacant.

[84] The answer to the question depends on the interpretation of sec 23(11), the provision which says that secs 23, 24 and 25 of the 1993 Act are to “have effect in relation to a part of a croft as they have effect in relation to a croft”. The simplest and most obvious meaning of that, in our view, is that whenever there is a reference to a croft in these sections the provision applies equally to part of a croft. Is there any difficulty in giving effect to that meaning which might suggest that another interpretation is to be preferred?

[85] It is appropriate to start by considering the terms of sec 23(1) which gives the context in which the remaining provisions operate. It sets out three situations: (a) where the landlord receives notice of renunciation of the tenancy from a crofter or obtains from the Land Court an order for the crofter’s removal; (b) where the landlord either gives the executor of a deceased crofter or receives from such an executor notice terminating the tenancy in pursuance of sec 16(3) of the Succession (Scotland) Act 1964; and (c) where, for any other reason, the croft has become vacant otherwise than by virtue of a declaration by the Commission in the exercise of any power conferred on them by the Act.

[86] Paragraphs (a) and (b) talk about renunciation or termination of the tenancy of the croft in contexts in which no question of partial renunciation or partial termination of the tenancy arises. This is important in connection with the case of Mackay v Crofters Commission which involved purported renunciation of part of a croft and the court said (at page 4) that sec 23(11) fell to be read “in the light of the absence of provision for renunciation of part of a tenancy and in the light of the prohibition against subdivision”. It remains the position that sec 7 of the Act, which deals with renunciation, makes no provision for partial renunciation. Accordingly the first leg of paragraph (a) does not give rise to a situation in which one might be dealing with part of a croft. Similarly, so far as the second leg is concerned, sec 5A of the Act, which deals with complaints of breach of the statutory conditions of tenancy, allows the Land Court to make an order terminating the tenancy, declaring the croft to be vacant and removing the tenant (subsec (6)). There is no doubt that the tenancy of a croft is a unitary entity, so again one is not dealing with any situation of partial termination, vacancy or removal.

[87] The position is the same under para (b) for which the governing provision is sec 16(3) of the 1964 Act. It deals with “the interest of a tenant under a lease, which is comprised in the estate of a deceased person and has accordingly vested in the deceased’s executor” (sec 16(1)) which cannot be, or has not within a certain period been, disposed of according to law (subsec (3)). So again there is no provision for that interest being divisible and no question of partial vacancy of the croft arises under this provision.

[88] Where partial vacancy can arise is under para (c), if “croft” here is taken to include reference to part of a croft. Where subsec (11) says that that the provisions of the section are to have effect in relation to a part of a croft as they have effect in relation to a croft, it must be the case, in our view, that para (c) of subsec (1) applies to parts of crofts as it does to whole crofts. This is one of three “gateway” provisions leading into the remainder of sec 23 and, thence, to secs 24 and 25. The first two provisions (paras (a) and (b)) are not capable of applying to parts of crofts, so if subsec (11) is to have any effect at all, it must apply to para (c).

[89] Partial vacancy arises where a crofter acquires title to part of the croft land, leaving the rest in tenancy. This is not only permissible in terms of the Act but positively contemplated. Thus sec 12 allows a crofter, failing agreement with the landlord, to apply to this court for an order authorising “the acquisition by the crofter of croft land tenanted by him”; subsec (3) makes clear that “croft land” includes, with certain exceptions, “any land being part of a croft”; sec 13(1) empowers the court to make an order authorising the crofter “to acquire such croft land as may be specified in the order”; and sec 14(2) provides that the crofting value of the land acquired is to be “the proportion attributable to the croft land of the current rent payable for the croft of which the croft land forms part”. The result of acquisition of part of the croft is clearly to exclude that part from the lease. So the acquired part becomes owner-occupied and the rest remains in tenancy. In that situation, in accordance with the common law principles of leasehold, the part which has been acquired is vacant until it is re-let because one cannot be one’s own tenant: Clydesdale Bank plc v Davidson, Cameron v Bank of Scotland.

[90] So far as the statutory provisions are concerned, as they stood at the time with which this appeal is concerned and before the advent of the owner-occupier crofter by virtue of the 2010 Act, they reflected the common law position. Thus an owner-occupied croft was acknowledged by the Act to be vacant because it was occupied “otherwise than by the tenant of the croft”.So, given that Parliament, in enacting the provisions from secs 12, 13 and 14 of the Act to which we have referred in the preceding paragraph, positively contemplated a situation in which parts of a croft could become vacant because they were not occupied by a tenant it seems reasonable to expect that it would cater for that situation in terms of the vacancy provisions of sec 23, 24 and 25. Giving sec 23(11) what we consider to be its natural meaning produces that result: it requires subsec (10) to be read as saying “a croft, or part of a croft, shall be taken to be vacant notwithstanding that it is occupied, if it is occupied otherwise than by the tenant of the croft.”

[91] Returning to the question whether this poses any difficulty in the implementation of the further provisions of sec 23 and those of sec 24 (being the substantive provisions), this interpretation would mean that where only part of a croft was vacant notice of the partial vacancy would have to be given to the Commission by the owner-occupier (who is included in the definition of “landlord” by subsec (12)(b)) in terms of sec 23(1); letting of the vacant part would be prohibited without the consent of the Commission in terms of sec 23(3); the Commission would be entitled to serve notice on the owner-occupier requiring him to submit re-letting proposals for the vacant part in terms of sec 23(5); the vacant part could be let as an enlargement of another croft (sec 23(7)); and the Commission could make a decrofting direction in respect of the whole or part of the vacant part in terms of sec 24(3).

[92] We see no practical difficulty with any of these outcomes. Nor do we see that this interpretation causes significant extra work for the Commission. That is because it will arise so infrequently. Most situations of partial vacancy will involve the purchase of the site of the dwellinghouse on the croft and associated garden ground for which specific provision is in any event made in sec 25(4) of the Act. That subsection also allows a crofter who is “proposing to acquire croft land or the site of the dwelling-house” to obtain from the Commission what is sometimes called an “advance-of-purchase decrofting direction” and the whole thing is dealt with in advance, so that as soon as the land in question has been acquired by the crofter (assuming that to be within five years of the giving of the direction, as required by the subsection) it passes out of crofting with no intervening stage of vacancy.

[93] A situation in which partial vacancy might be thought to arise, but does not in fact, is where the crofter has bought his inbye croft land but not, for whatever reason, the grazing share or apportionment which goes with it. However, what happens in that case is that the grazing share or apportionment continues to be held in tenancy and is deemed to be a separate croft: sec 3(5) as interpreted by this court in Crofting Commission Reference at paras [22] to [30]. That means that the original croft would, as the law stood at the relevant time, be wholly vacant, so it would not be a situation of partial vacancy at all.

[94] We do not see, therefore, that the situation of partial vacancy is often going to arise in such a way as is going to cause additional work for the Commission. But any additional work which it does cause is work which is within its regulatory function and which it should be performing in any event. That is because the Commission has an interest in controlling the amount of croft land remaining vacant. Where, for example, a crofter buys much the greater part of his or her croft it makes sense that the Commission should continue to have available to it the full panoply of its powers while that land remains in crofting, so that it could, in appropriate circumstances, order re-letting. That re-letting would bring about a division of the croft. There would be two separate leases. But it would be a division brought about at the instigation of the Commission and, so, would not offend against the prohibition of division contained in sec 9 of the Act.

[95] There does not, therefore, seem to be any practical impediment to giving the provisions of sec 23(11) what we have described as their simplest and most obvious meaning. Nor does such an interpretation conflict with any other provision of the Act or with any principle of crofting law which we can identify.

[96] It may, however, be thought to conflict with Crofters Commission v Mackay. That case was a reference by the Commission to this court under sec 53(1) of the Act. It concerned a croft owned by a John Mackay and tenanted by his son Alexander. It arose out of an application by John Mackay for the decrofting of part of the croft so that he could grow trees on it. In order to facilitate that, Alexander Mackay purported to renounce his tenancy of that part of the croft. Against that background, five questions were submitted for the determination of the court, as follows:-

(1) whether the croft was vacant or tenanted or partly tenanted and partly occupied by the owner;

(2) whether it was competent for the tenant of a croft, with the consent of the landlord but without that of the Commission, to renounce his interest as crofter in part only of the croft while retaining the remainder;

(3) esto the answer to question 2 was in the affirmative, whether the subjects renounced and the subjects retained together formed one croft, although held in several parts by several persons;

(4) esto questions 2 and 3 were answered in the affirmative, whether the owner of the part of the croft renounced was bound to notify the Commission of such renunciation within a month of its occurrence; and

(5) esto questions 2, 3 and 4 were answered in the affirmative, whether the Commission could give notice to the owner of the part renounced requiring reletting proposals.

[97] It will be noticed immediately that all of these questions have to do with the competency of partial renunciation of a crofting tenancy. The court began its consideration of them by rehearsing the consequences of a notice of renunciation under sec 7, in terms of the creation of a vacancy triggering the power of the Commission to prevent reletting without their consent and the requirement on the landlord to submit reletting proposals. Having done so, the court summarised the purpose of these provisions as being “to facilitate the performance by the Commission of their function of developing and regulating crofting by enabling them to retain control over the letting of crofts and by preventing land from falling out of their purview and so being lost to crofting by default” (page 3G).

[98] The court then noted that the Act made no specific provision for renunciation by a crofter of part of a croft. It noted, however, the prohibition against division of a croft by a crofter except with the consent in writing of the landlord and the Commission (as sec 9 stood then). Of sec 9 they said this:-

“In our view the mischief which s 9 was designed to prevent occurs not only when a croft is subdivided between two tenants, but also when a part of the croft is made available for let to a party other than the existing tenant. The purpose of this provision is further to facilitate the maintenance of the Commission’s control over the letting of crofts and over the size of croft units with a view to avoiding further fragmentation of croft land. If subdivision were to be permitted without the Commission’s consent, as it was prior to the enactment of the Crofters (Scotland) Act 1955, the control of the size of crofting units would be lost to the Commission. There would also be a risk of the loss of control of the letting of the subdivision. In our view the overall scheme of these provisions is to ensure that the Commission should retain control, not only of the letting of crofts, but also of the extent of crofts”. [page 3 I-J]

[99] The court then took the view that the action of the tenant in the instant case fell to be regarded as a purported sub-division of the croft which was null and void. Accordingly there had been no renunciation and no part of the croft had been vacant at any time. That answered question 1.

[100] Moving to question 2, the court noted the terms of sec 23(11) and said:-

“It may be argued that the terms of that subsection are to be interpreted as bringing the provision of ss 23, 24, and 25 into effect when a tenant gives a notice of renunciation of his tenancy in respect of a part only of his croft. If that interpretation were correct the powers of the commission in relation to reletting would then come into effect in relation to the part of the croft which had been renounced.” [page 4A]

That was an interpretation with which the court did not agree, saying:-

“In our view that interpretation of sec 23(11) is unsound. The subsection falls to be read in the light of the absence of provision for renunciation of part of a tenancy and in the light of the prohibition against subdivision. Looked at in that way the effect of s 23(11) is to enable the Commission to exercise their reletting and decrofting powers in relation to parts of crofts as well as to whole crofts, but those powers will only become available if the tenancy of the whole croft is renounced.

Further, the interpretation which we reject would deny the Commission any control over the diminution in the size of crofts, and would allow crofters and landlords, at their own hand, effectively to subdivide crofts without the Commission’s consent.”

[101] Accordingly they answered question 2 in the negative and the remaining questions were superseded.

[102] Two points fall to be made in the examination of that decision for the purposes of the present application. The first is that it was rooted in the fact that the Act made no provision for partial renunciation of a tenancy and positively prohibited a division of a croft such as partial renunciation would bring about. The foregoing comments are to be seen in that context. The present case is different because, as has been seen, the Act allows acquisition by a crofter of part only of his croft. As the court, chaired by Lord McGhie, noted in Lamont v Kennedy, that might be seen as conflicting with the provision against division, because it gives rise to a situation in which the croft may end up divided between two occupiers. In that regard the court (at para [50]) said this:-

“We think it unnecessary to attempt to resolve that conflict by a narrow construction of sec 9, as such. It is enough to say that if there is a conflict between the operation of sec 9 and the right to buy provisions, we have no doubt that the latter must prevail. They reflect the express intentions of Parliament while the full potential implications of sec 9 may not have been realised. In other words, even if it is to be accepted that sec 9 requires a wide construction to reflect an important policy against fragmentation, we have no doubt of the importance of the crofter’s right to buy. It cannot be suggested that a crofter's purchase of his house site is to be deemed null and void simply because it has the effect of ‘dividing’ the croft. That may be the most powerful example but we think the principle also applies to the right to buy any part of a croft. As we have discussed above, the Act was intended to give crofters a right to acquire their croft land. We cannot accept that the prohibition on sub-division, or division, under sec 9 has the effect of nullifying a crofter’s acquisition of any part of his croft.”

[103] Secondly, with reference to the emphasis laid by the court in Crofters Commission v Mackay on the regulatory role of the Commission in the protection of crofting, there is no conflict between an interpretation which allows decrofting where only part of the croft is vacant and the role of the Commission. On the contrary, such an interpretation extends the role of the Commission and prevents vacant parts of crofts falling out of their purview. Thus, whilst we respectfully agree with what the court said in Crofters Commission v Mackay about the Commission’s letting and decrofting powers becoming available only if the tenancy of the whole croft is renounced (in a situation dealing with purported partial renunciation), it seems to us desirable that the Commissions powers in relation to re-letting and decrofting should be available in cases of partial vacancy brought about by legitimate means.

[104] Accordingly in our opinion Crofters Commission v Mackay is to be distinguished on the ground that it related to a situation of partial renunciation, for which no provision is made in the Act, as opposed to partial vacancy, which is positively contemplated.

[105] Accordingly we answer this question in the negative and hold that the fact that only part of a croft is vacant does not bar the decrofting of land within that part.

Question 2: whether, where a croft is partly vacant and partly tenanted the consent of the landlord of the tenanted part is necessary before any of the vacant part can be decrofted

[106] The main thrust of the respondents’ argument was directed at this question and centred on the need to interpret the references to “landlord” in sec 24(3) as meaning the totality of owners of the land comprised in a croft.

[107] “Landlord” is defined in sec 61(1)(a) of the Act as “any person for the time being entitled to receive the rents and profits, or to take possession of, the croft” unless the context otherwise requires. That clearly means the totality of the owners of the land comprising the croft because it is only that totality which is entitled to the rent or entitled to take possession of “the croft”. Section 61(1) provides that “croft” has the meaning assigned to it in sec 3 of the Act and there is no suggestion in sec 3 that it can mean only part of a croft. Instead the reference is, as Sir Crispin pointed out, to “holdings” and there can be no doubt that a holding comprises the whole of the leased subjects.

[108] The question then becomes “Does the context otherwise require?” In our view it does. In the first place, the context here involves purchase of part of a croft by the crofter. That results in a division of the ownership of the croft land. There are two owners. One part of the croft is vacant and the rest remains in tenancy. The owner of the tenanted part is not entitled to receive the rents or take possession of the vacant part. He is, therefore, incapable of satisfying the definition of landlord quoad the vacant part.

[109] Secondly, if Parliament has permitted decrofting to take place where only part of a croft is vacant, as we have concluded it has, it is difficult to see why it should have intended to make that conditional on the consent of the owner of another part of the croft, which may be a de minimis part or situated so far from the decrofted area as not to have any conceivable practical interest in it. After all many crofts comprise a scattering of individual plots, interspersed with land held, on whatever tenure, by others. That is a situation in which part-purchase is perhaps more likely than where the croft comprises a single unit. Why should Parliament have intended the owner of one part which remains in tenancy to have a veto over the decrofting of another part, no longer in tenancy, wholly unconnected with his land?

[110] Sir Crispin gave reasons why Parliament should have intended “landlord” to mean the totality of all the owners. He said that a vacant croft would be easier to let and a better rent would be achieved if let as a whole, rather than in individual parts. He said decrofting of one part might affect rights of water supply and access. We do not find these reasons convincing. A croft always has to be let as a whole unless the Commission consents to a division. So far as decrofting parts of a croft is concerned, that too is subject to statutory control and the Commission is unlikely to consent to decrofting, if the effect is to be that the rest of the croft is to be impoverished, as, for example, by the loss of its only source of water or the creation of some problem in relation to access to other parts of the croft. In our view Parliament has entrusted the protection of the relevant interests to the Commission and there is no need to read into the legislation an additional protection for proprietors of other land in the way of requiring them to conjoin in decrofting applications over land which is not theirs. Decrofting applications have to be advertised (sec 25(6)) and owners of other parts of the croft can make representations to the Commission in the same way as others. However, Sir Crispin put his case higher than that. It was not just a matter of the statutory definition of “landlord” being supported by considerations of the kind he was advancing. Quite separate from that, as a matter of common law, as we understood him, the various landowners were bound together by a species of common interest which gave each proprietor not only an interest but a right to prevent injurious acts by others. We now consider that submission.

[111] It was based on the existence of a croft as an entity which was divisible or terminable, in whole or in part, only with the consent of the Commission or in accordance with due statutory process. Without such consent or process a croft continued in existence regardless of whether it was tenanted, vacant or occupied by an owner-occupier or by an owner-occupier crofter. None of that is controversial. But does it give rise to legal rights among the part-owners to control, to any extent, what is done on each other’s land?

[112] Our first difficulty with the argument that it does is that the right being described could not be assigned to any recognised category of legal rights. Not only was it impossible to define as a recognised, nominate, species of right but it was difficult to describe. Thus, although, common ownership, joint ownership and commonty were all referred to by way of analogy, it was not said that what was being contended for actually was any of these things, only that it had features in common with them. An added difficulty is that it is not clear exactly what these common features were thought to be.

[113] Of the various analogies suggested, we think common interest is closest to what Sir Crispin was describing. We were referred to Bell’s treatment of that topic at para 1086 of his Principles, where common interest is described as follows:-

“A species of right different from common property takes place among the owners of subjects possessed in separate portions, but still united by their common interest. It is recognised in law as ‘Common Interest’. It accompanies and is incorporated with the several rights of individual property. In such cases a sale or division cannot resolve the difficulties which may arise in management; but the exercise and effect of the common interest must, when dissensions arise, be regulated by law or equity. Thus, in the common wall of one of the large tenements of Edinburgh, consisting of many floors belonging to different proprietors, there is no common property among the owners of the several floors, but a combination of individual property with common interest.”

After discussing the position of tenements in more detail and distinguishing common interest from rights of servitude and property, the learned author’s treatment of the subject concludes:-

“Where neighbouring owners or tenants have a common interest in anything, as in a road giving a common access, or an area or green for light and common use, their rights are ruled on similar principles – that is to say, by the titles constituting their rights, as interpreted ‘by law or equity’. Any one of the community is entitled to maintain the existing state of possession against the others. So in regulating the use of a garden or square in a city, when the titles gave a right and interest, but not a right of property in the area, and did not define the system of management, the Court had recourse to the past possession and administration to fix the measure of the proprietors’ rights.”

[114] However we do not think even this category of interest, much closer to what Sir Crispin was describing though it is, is apt to cover the situation of different people owning different parts of a croft. They may be “owners of subjects possessed in different portions” so far as the croft land goes. But, as Sir Crispin submitted, the entity of a croft is made up of more than the land it comprises. That land is a croft only because of the statutory regime of rights and obligations by which the law designates it as a croft. The entity of a croft is, in part at least, a metaphysical one and we do not see how the various owners of the land can be said to possess it in different parts. The analogy of the rights of proprietors of land surrounding a loch, with each having exclusive ownership of the bed of the loch ex adverso his land up to the medium filum but all having a right to the water for fishing , shooting, boating or similar purposes (Gordon, Land Law para 3-31), was also suggested. But that clearly goes too far; the owner of part of a croft does not, in the absence of servitude rights, have any right to perform any activity over other parts of the croft. Sir Crispin did not suggest otherwise. What he did suggest, rather, was that such an owner has a right to restrain potentially harmful activity (harmful to the entity of the croft) by other owners on their own land. Such activity could, he said, be restrained by interdict if necessary. But, so far as decrofting was concerned, it could also be restrained by reading the legislation in such a way that all owners had to concur in an application to decroft. Common interest was the rationale for that requirement.

[115] One can understand very well how common interest arises in a tenement or in a situation where an access road serves several properties or a green is in common use. The owners of every property in a tenement have an interest in the walls bounding the other proprietors’ properties being maintained. Where several people have the use of a green they all have an interest in every part of it being maintained. But the proprietors of different parts of a croft do not have such a clear interest in other parts of the croft.

[116] In a slightly different branch of his argument, Sir Crispin founded on the position regarding agricultural holdings, governed by the Agricultural Holdings (Scotland) Act 1991. He submitted that in that context the landlord of an agricultural holding was always the totality of landlords. He argued that the case of Crewpace Ltd v French had been wrongly decided because the Temporary Judge had failed to understand properly the following passage from Gill on The Law of Agricultural Holdings in Scotland:-

“3.05 Where the subjects of let are divided among several proprietors all of the proprietors together constitute the landlord of the holding. Since each owns a different part of the holding, all must conjoin in any notice to quit. It is incompetent for each to serve a notice relating to that part which is owned by him. Conversely, no one proprietor is entitled to serve notice to quit in relation to the whole. All must concur in any action for recovery of unpaid rent. As with notices to quit, other notices competent the landlord under the Act, for example notices under section 13 or notices of objection under sections 11 and 12, must be served by all the proprietors together.

Whenever the title to the holding becomes divided during the currency of the tenancy, the tenant is entitled to continue to serve or deliver any statutory notice or other document on or to the original landlord until he receives notice of the identities of the new landlords in accordance with section 84(4). Once he has received notices under section 84(4) from the new part-proprietors he ought, for safety’s sake, to address all such notices and other documents to all of them as a body, because they together constitute the ‘landlord’ of the holding, and to serve a copy on each of them.”

[117] Crewpace concerned a lease over land which was, when the lease was granted, in single ownership but had subsequently come to be in divided ownership, held by two different companies. The owner of one part had resumed land from the area it owned without reference to the owner of the other part. The action was for (1) declarator that the defenders (the owners who had resumed the land) had unlawfully interfered with the pursuers’ (the owners of the other land) heritable interest as joint landlords in the lease (emphasised because it describes the foundation for the right being asserted, a different foundation from that in the present case); (2) payment of a sum by which the defenders were said to have been unjustifiably enriched; and (3) for interdict against the defenders resuming any other areas of ground without the consent of the pursuers or from selling land so resumed.

[118] The Temporary Judgerejected the argument that the pursuers’ interest in the lease was one of common property held by them and the defenders as joint landlords; see, in particular, para [41] of her judgement. Sir Crispin disagreed. We say nothing about that because in our view Crewpace and the passage quoted from Gill have no application to the present case where there is no continuing lease over the whole croft. All there is in the present case is the fact that the whole croft remains subject to crofting law. Whatever the case may be where there is a lease extending over the whole croft, we do not consider that owners of land acquire any common law rights over other land simply because both areas are subject to the same statutory regime. In that situation it is the statutory regime which controls parties’ rights. In respect of decrofting applications that regime provides safeguards for the croft, the estate of which it forms part (which would include the interests of all the landowners), the public interest and the interests of the crofting community in the locality, in the way of the power of the Commission to refuse decrofting; sec 25(1).

[119] In summary, therefore, we reject the respondents’ submission as to the existence of some right of common interest because (a) it has proved impossible to identify or define, (b) in particular it is not such as the joint landlords of a lease extending over the whole croft might have, and (c) the protection sought to be achieved by the purported right has already been provided by Parliament, and in accordance with Parliament’s views as to how the various rights and interests of landlords, tenants, the public and the crofting community are to be balanced.

[120] For the foregoing reasons we are of the opinion that for the purposes of the vacancy and decrofting provisions of secs 23, 24 and 25 “landlord” requires to be interpreted as including the owner of a vacant part of a croft acting on his own in relation to his own land. Accordingly, where a croft is partly vacant and partly tenanted the consent of the owner of the tenanted part is not necessary before the vacant part, or any part of it, can be decrofted.

Question (iii) whether the position is different where a croft is owned by more than one person but is wholly vacant

[121] In our opinion the situation is not different where the croft is wholly vacant. In that situation there is no lease and we have held above that, whatever the position is where there is a lease of the whole subjects, where there is no such lease there is no right of common interest such as would require all the landlords to act together. In that situation, freedom of an owner to exercise his rights of property over his own land would require that he be allowed to apply for a decrofting order unrestrained by the need for the consent of other proprietors and requires “landlord” to be interpreted accordingly. The interests of the croft, the estate of which it forms part, the public and the crofting community in the locality will all be protected, to the extent Parliament has considered necessary, by the provisions of sec 25 of the Act, which, since the date of the matters with which this case is concerned, has been expanded by the provisions of sec 43 of the 2010 Act.

Other situations in which similar questions arise

[122] The question of whether all of the landlords must take action in order to pursue the processes available to landlords under in the 1993 Act is an important question. It can arise under several provisions of the Act. It also arises in the law of agricultural holdings. Crewpace is an example. That was a Court of Session case. But it also exercised this court, chaired by Lord McGhie, in Executors of the late Mrs J M Graham v The Deanston Partnership. That was a case concerning irritancy of an agricultural holding. There was a suggestion that there were two landlords; the applicants for irritancy and the owner of an area of woodland said by the tenant to be included in the lease. On the evidence the court held that this area had been reserved when the lease was granted and that there was therefore only one landlord. It noted, however, that, if the subjects of lease had come to be owned by two landlords, questions would arise as to the need for the two owners to act together (para [21]) and it went on to comment on the general question of the need for all landlords to act together as follows:

“[33] It is clear that there may be situations where it is necessary for all the owners of land affected by an agricultural lease to act together: the material discussed by Lord Gill at paragraph 3.05 is to that effect. However, Morag Wise QC, as she then was, sitting as Temporary Judge, had occasion to explore the common law aspects of divided ownership in Crewpace Ltd v French, 2012 SLT 126. She concluded that there was no concept of a joint landlords’ interest where the title to land was divided. A conveyance of part of leased subjects would give the disponee no rights in the remainder of the farm: p137 H-K. It was recognised that there might be circumstances where the protection given to a tenant by legislation required both landlords to act as one but the Temporary Judge was satisfied that Lord Gill’s observations could properly be seen as limited to that context: p 138C-D.

[34] A requirement that the landlords must act together can present real difficulties and it is not clear that the legitimate interest of the tenant requires such an approach in every situation. For present purposes it is enough to say that we find some attraction in the view that the need for joint action should be limited to cases where that is clearly justified by the requirements of statute or the protection of an identified interest. The English case of Bebington v Wildman [1921] 1 Ch 559 is a good example of the latter. Each landlord independently purported to give notice to quit the subjects he owned. Each notice was accordingly an attempt to give notice to quit part of the holding. It was not disputed that such a notice was ineffective. A tenant cannot be compelled to leave part of the land and remain bound as tenant in relation to the remainder. The case turned on the unsuccessful contention that the two notices could be taken together.”

[123] We have considered whether we should take advantage of this case in order to expand on these matters in the crofting context. However, the submissions we heard were tightly focussed on secs 23, 24 and 25 of the Act and it would, therefore, be unwise to embark on a discussion as to what the situation might be in relation to other situations, such as complaints in respect of breach of statutory conditions (sec 5A), applications for fixing of a fair rent (sec 6), resumption (sec 20) and provisions as to removal of a crofter (sec 26). In each case it will be a question of whether the context requires “landlord” to be interpreted otherwise than as in sec 61(1). But we have preferred to leave comment on these and cognate situations until they arise for decision in other cases.

Further procedure

[124] Mr Maclean invited us to fix a By Order hearing to discuss further procedure. In the hope that that will not be necessary we have invited written submissions at this stage. Counsel will no doubt discuss what procedure might be appropriate before preparing their submissions.

Expenses

[125] We have allowed 28 days for written motions and submissions on expenses.

For the Appellants: Iain F Maclean, Advocate; MacPhee & Partner, Solicitors, Fort William

For the Respondents: Sir Crispin Agnew of Lochnaw, Bt, QC; Macleod & MacCallum, Solicitors, Inverness