Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 94

XA38/15

 

Lord Menzies

Lord Brodie

Lady Dorian

OPINION OF THE COURT

delivered by LORD BRODIE

in the Special Case

stated by

THE SCOTTISH LAND COURT

For the opinion of

THE COURT OF SESSION

under

section 1(7) of the Scottish Land Court Act 1993

at the request of

COLIN NIALL KENNEDY

Respondent

in the application under section 20 of the Crofters (Scotland) Act 1993

by

MRS JANETTA (OTHERWISE JETTA) SORBIE

Applicant;

against

COLIN NIALL KENNEDY

Respondent;

 

Applicant:  Sir Crispin Agnew of Lochnaw Bt QC;  Anderson Strathern LLP

Respondent:  Cameron, Advocate;  Morisons Solicitors

17 December 2015

The nature of the proceedings and the parties to it
[1]        This is a special case stated by the Scottish Land Court in terms of section 1(7) of the Scottish Land Court Act 1993 for the opinion of this court on a question of law.  The special case is stated at the request of Colin Niall Kennedy.  The other party to the special case is Mrs Janetta (otherwise Jetta) Sorbie.  The question of law relates to the competency of an application to the Land Court by Mrs Sorbie which was opposed by Mr Kennedy.  We shall therefore refer to Mrs Sorbie as “the applicant” and to Mr Kennedy as “the respondent”.  

[2]        The applicant is the heritable proprietor of a dwellinghouse or cottage with an attached extension comprising a kitchen and bathroom, known as Seaview, Arinagour, on the Island of Coll, and an unfenced area to the rear of Seaview which has been used as a drying green pertaining to the house.  Although owned and occupied by the applicant, the solum of the extension and the drying green, an area of ground extending in total to 0.0133 hectares (“the resumption subjects”), is part of the Arinagour Common Grazings.  

[3]        The applicant made the application to the Land Court in November 2005 under section 20(1) of the Crofters (Scotland) Act 1993 (“the 1993 Act”).  The application was for authority for the resumption of the resumption subjects from the Arinagour Common Grazings.  

[4]        The respondent is the tenant of a croft known as 2 Arinagour and has a one‑fifth share in the rights in the Arinagour Common Grazings.  It is averred by the applicant that the Arinagour Common Grazings extend to just over 43 hectares.  We were advised that the respondent’s share allows him to graze 15 sheep.  The respondent was served with a copy of the applicant’s application and appeared as crofter respondent in the proceedings before the Land Court to oppose the application for authority to resume the subjects.  It was his contention that the application was incompetent.  The Land Court rejected that contention and granted the application.  The respondent accordingly requested the Land Court to state a special case for the opinion of this court.  

[5]        It would appear that no other party has an interest in the grazings.  The Land Court determined in its decision RN SLC/104/04 that the respondent’s croft, croft two, had a right to a one‑fifth share, that a further one-fifth share pertaining to croft one was vacant and that “the other three original shares are agreed to have disappeared as a consequence of the ‘decrofting’ process in 1953”.   

 

Croft and crofter

[6]        Crofting tenure is the product of a series of statutes beginning with the Crofters Holdings (Scotland) Act 1886 which were consolidated in and amended by the 1993 Act.  The 1993 Act has been amended by the Crofting Reform Act 2007 and the Crofting Reform (Scotland) Act 2010.  However as the date of the application by the applicant was November 2005, when considering any question relating to the jurisdiction of the Land Court the court is concerned with the 1993 Act as it stood at November 2005. 

[7]        In section 3(1) of the 1993 Act “croft” is defined by reference to a combination of the application of previous statutes, registration and direction by the Secretary of State, but for present purposes all that it is necessary to take from section 3(1) is that a croft is a holding.  Section 3(4) amplifies the section 3(1) definition.  Section 3(4) provides, inter alia: 

“3(4) For the purposes of this Act—

 

(a) any right in pasture or grazing land held or to be held by the tenant of a croft, whether alone or in common with others, and

...

shall be deemed to form part of the croft.”

 

Section 3(3) provides:  “In this Act ‘crofter’ means the tenant of a croft.”  

 

The jurisdiction of the Land Court to authorise resumption
[8]        A crofter’s tenure is protected (and very extensively regulated) by the 1993 Act, as amended.  However, with the authorisation of the Land Court, “the landlord” may resume exclusive occupation of a croft or part of it (that is recover it from crofting tenancy with the result that the provisions of the 1993 Act will no longer apply) under certain conditions now set out in sections 20 and 21 of the 1993 Act.  The right of the landlord to apply for authority to resume possession of the holding or part of the holding “for some reasonable purpose having relation to the good of the croft or of the estate [or the wider public interest]” was originally enacted by section 2 of the 1886 Act and accordingly has always been an integral aspect of crofting tenure.  

[9]        Sections 20 and 21 of the 1993 Act provide inter alia as follows: 

20. — Resumption of croft or part of croft by landlord.

(1) The Land Court may, on the application of the landlord and on being satisfied that he desires to resume the croft, or part thereof, for some reasonable purpose having relation to the good of the croft or of the estate or to the public interest or the interests of the crofting community in the locality of the croft, authorise the resumption thereof by the landlord upon such terms and conditions as it may think fit, and may require the crofter to surrender his croft, in whole or in part, to the landlord accordingly, upon the landlord making adequate compensation to the crofter either by letting to him other land of equivalent value in the neighbourhood or by compensation in money or by way of an adjustment of rent or in such other manner as the Land Court may determine.

...

(4) Where an application is made, with the consent of a majority of the persons sharing in a common grazing and with the approval of the Commission, for authority to resume any land forming part of the common grazing for the purpose of using, letting or otherwise disposing of it for the planting of trees, the Land Court shall not withhold its authority for such resumption.

 

21. — Crofter's right to share in value of land resumed by landlord.

(1) Where the Land Court authorises the resumption of a croft or a part thereof under section 20 of this Act, the crofter shall be entitled to receive from the landlord, in addition to any compensation payable to him under that section, a share in the value of the land so resumed the amount whereof shall be one half of the difference between, subject to subsection (5) below, the market value of the land (on the date on which resumption thereof is so authorised) as determined by the Land Court in accordance with subsections (2) and (3) below (less any compensation payable as aforesaid) and the crofting value thereof.

...

(2) Where the resumption of the land is so authorised for some reasonable purpose which has been or is to be carried out by the landlord or by any person not being an authority possessing compulsory purchase powers, the market value for the purposes of subsection (1) above shall be a sum equal to the amount which the land, if sold in the open market by a willing seller, might be expected to realise.

...

(4) Where the land so resumed forms or forms part of a common grazing—

 

(a) the share of the value of that land payable to the crofters sharing in the common grazing shall be apportioned among such crofters according to the proportion that the right in the common grazing of each such crofter bears to the total of such rights; 

(b) any sum so apportioned to such a crofter shall be deemed to be the share in the value of such land resumed to which he is entitled under subsection (1) above, and

...

(5) For the purposes of this section, where any development has been carried out by any person, other than the crofter or any of his predecessors in the tenancy, on the land which the Land Court has authorised the landlord to resume before such authorisation, there shall be deducted from the market value such amount thereof as, in the opinion of the Land Court, is attributable to that development.

...”

 

The interpretation section of the 1993 Act is section 61.  It provides, inter alia:

“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; 

...”

 

The decision of the Land Court

[10]      In terms of its decision of 23 October 2014 (now reported as Sorbie v Kennedy 2015 SLT (Land Court) 17) the Land Court (1) found that the purpose for which resumption was required was reasonable, and authorised the applicant to resume forthwith the rectangular piece of ground extending the length of the cottage known as Seaview and 30 feet to the west of it;  (2) found the applicant liable to pay the respondent the sum of £2000 in respect of all claims open to him and (3) made provision for expenses. 

[11]      In the note attached to its decision the Land Court explains that the respondent had conceded that the purpose for which resumption was sought was reasonable.  Moreover, the parties had agreed a suitable area of ground and a sum of money to reflect the respondent’s financial entitlement consequential on resumption, as well as the matter of expenses.  Parties were however at issue as to whether the application was competent.  The respondent argued that an application in terms of section 20 could only be made by a “landlord”, as defined by section 61 of the 1993 Act, and that as the applicant was not a landlord in terms of that section the proposed resumption was outwith the scope of section 20.  The applicant argued that having proper regard to the whole context it was plain that section 20 was wide enough to cover applications by owners of common grazings.  

[12]      In its note the Land Court records what amounted to a concession made on behalf of the applicant.  It refers to section 61 of the 1993 Act as providing that “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 goes on to observe that it “was not disputed that the applicant did not fall within that definition.”  Before us, as we shall have occasion to return to, the applicant sought to withdraw that concession. 

[13]      The Land Court took no issue with the applicant’s concession and the reasoning for its decision proceeds on the basis that, as a literal construction of the section, it was correctly made.  However, in its note, the Land Court goes on to explain that in its collective experience, notwithstanding the wording of section 61, for many years, owners of grazings have routinely been described as “landlords”.  Moreover, taken in context, understanding the language of section 20 in this way gives effect to the scheme of allowing land to be freed from crofting tenure where it is for a reasonable purpose and permits the other provisions of the 1993 Act to operate sensibly.  Thus, while there was a superficial substance in the challenge to the competency of the application, considered in the light of its whole context, section 20 can properly be construed in a way that gives effect to the underlying intention.  That the Act contemplates the resumption of the land forming part of a common grazing is clear from the terms of sections 20(4) and 21(4).  In the 1993 Act, prior to amendment, various provisions relating to common grazings referred to “landlords” in a context where unmistakeably the intention was to refer to the owners of the grazing land.  Section 50 was an example.  Thus, having regard to the Act as a whole there is no difficulty in treating “landlord” as intended to cover the owner of lands subject to grazing rights as well as owners whose lands were subject to a full croft tenancy.  While it is clear from Crofters Commission v Arran Limited 1997 SLT (Land Court) 22, Castle v Philp 2009 SLCR 21 and Reference by the Crofters Commission 2010 SLCR 159 that, on a proper view, the crofters are not tenants of the grazings, there were many instances of both lawyers and laymen treating common grazings as as if they were subject to a tenancy and “landlords” has long been in regular use to refer to the owners of grazings.  There is no reported case where it has been disputed that the provisions of section 20 or its predecessors might extend to resumption by the owner of common grazings.  It was to be noted that there had been several authorised resumptions from the Arinagour Common Grazings to which the present respondent had been party, including those involving the neighbours on each side of the applicant, and which had proceeded on the basis of the long understood construction of the section.  When the Scottish Parliament amended the 1993 Act by the 2007 Act, while replacing “landlord” of common grazings with “owner” in a number of instances, it did not do so in the case of section 20. The Land Court’s view is that that was an oversight but not one overriding what it considers to be the intention of Parliament which was to treat the word “landlord” as applicable to the owners of common grazings and the croft rights in the grazings as covering the land itself for the purpose of section 20.  A narrow view of section 20 would prevent any resumption of common grazings and this would thwart the intention of Parliament.  Counsel for the respondent had attempted to avoid the apparent consequence of his argument by proposing that Parliament intended to restrict the right to apply for authority to resume to owners who happened also to be landlords of crofts.  However counsel had advanced no reason for such a restriction.  While the point has never previously risen for decision, from the time of the enactment of the first predecessor of section 20, section 2 of the Crofters Holdings (Scotland) Act 1886, the term “landlord” has been used to refer to the land subject to the common grazing rights of crofting tenants and the terms of that provision have been treated as wide enough to allow resumption of the land by the owner of the common grazings.  

[14]      The Land Court summarises its reasoning by explaining that its aim has been to identify the intention of Parliament from the language used, read in its context.  It has little doubt that in 1886 the term “landlord” was used to refer to the owner of a grazing area subject to the common grazing rights of crofting tenants.  That was the construction adopted in practice and Parliament could be taken to be aware of that and yet it has taken no steps to effect a change.  Parliament plainly attaches importance to the resumption of common grazing land and when construed in light of an assumed tenancy of common grazing land, the provisions of section 20 reflect the parliamentary intention in a straightforward way, that being that in using the word “landlord” Parliament meant the owner of the grazing land and that the right to resume was to resume the land and not simply the grazing rights held over the land. 

 

The question of law as stated by the Land Court
[15]      Following its decision, the question requested by the respondent to be stated by the Land Court is in the following terms: 

Did the Scottish Land Court err in holding that the reference to “landlord” in section 20 of the Crofters (Scotland) Act 1993 applies to all owners of common grazing land and not only to those who meet the statutory definition of “landlord” in section 61 of the 1993 Act?

 

Submissions of parties
Withdrawal of the concession on the effect of section 61

[16]      Sir Crispin Agnew of Lochnaw Bt QC appeared on behalf of the applicant and Mr Cameron appeared on behalf of the respondent.  Both counsel had lodged written notes of argument which they adopted.  In the applicant’s note of argument she sought to withdraw the concession made to the Land Court that she did not fall within the definition of “landlord” provided in section 61(1) of the 1993 Act.  That was resisted in the respondent’s note of argument.  Accordingly, before hearing further submissions we asked counsel to set out their respective positions.  Mr Cameron submitted that the applicant should not be allowed to withdraw the concession.  It was a concession of fact or at least a concession of mixed fact and law:  cf Connelly v Simpson 1993 SC 391.  It had been unreserved and debate before the Land Court had proceeded upon the basis that it had been properly made.  Indeed the question posed by the Land Court in the special case was predicated on the assumption that the applicant did not come within the definition provided by section 61.  Sir Crispin submitted that the applicant should be allowed to withdraw the concession.  It was accepted that the applicant does not own the respondent’s croft and that she was not entitled to rent.  However a croft included associated grazing rights and accordingly such rights could constitute a “part” of a croft.  The competence of an application under section 20 of the 1993 Act in circumstances such as these was a matter of wide importance in the crofting community.  It was accordingly important that this court should reach the correct answer. 

[17]      We allowed the concession to be withdrawn notwithstanding Mr Cameron’s argument.  As we saw it this was a concession on a point of law and more particularly the application of a statutory provision to agreed facts.  It was made in the context of a debate on competency.  A special case had been stated to this court on a question of law.  We frankly saw no purpose in our addressing that question if our consideration of it was to be artificially constrained by a concession as to the effect of the relevant statute. 

 

Submissions for the respondent on the question of law

[18]      It was Mr Cameron’s contention that on a plain meaning of section 20 read with section 61, the application was incompetent.  He reminded the court that what was contemplated by section 20 was the resumption of “the croft, or part thereof” “by the landlord”.  In his submission, the resumption subjects in the present case did not constitute a croft or part of a croft.  Neither was the applicant the landlord of a croft.  

[19]      Mr Cameron drew attention to the definition of “croft” which appears in section 3 of the 1993 Act.  For present purposes section 3(4) was of particular importance.  

[20]      A right in common grazings was what Lord Clyde in Ross v Graesser 1962 SC 66 at 74 and 75 had described as being not a tenancy of land but an ancillary right outside the croft which constitutes a pertinent to it and which belongs to the tenant of the croft as such.  Such a right is “quite independent of the croft or the tenant of the croft.”  As Lord Sorn had said at 76, the deeming provision deals not with “a piece of land” but with a “right” which is to be “deemed” to be included in the holding.  Its purpose was to cover grazing rights enjoyed by the statutory landholder in association with his holding, which might derive from custom, prescription or grant.  Accordingly, submitted Mr Cameron, what is deemed to form part of a croft is a right of grazing rather than the piece of land over which the right is exercised.  Therefore the definition of croft excludes common grazing land. 

[21]      As he put it, Mr Cameron’s argument came down to the terms of section 61.  There was no reason to give the word “landlord” where it appeared in section 20 a different meaning than that provided by the interpretation section of the 1993 Act.  That section defined “landlord” as ”any person for the time being entitled to receive the rents and profits, or to take possession of, the croft” (emphasis added).  There was no question of the applicant being entitled to receive rents or profits.  Mr Cameron accepted that were it not for the common grazing right the applicant as owner would be the person entitled to take possession of the resumption subjects.  However in a question with a crofter the proprietor of common grazings has no entitlement to take possession of “the croft”.  Thus, applying the definition in section 61, the applicant was not the “landlord”.  Mr Cameron accepted that there was no speciality about this case.  No one who was merely the owner of land subject to common grazing rights and not the landlord of the inbye of the croft in question could apply for authority to resume in terms of section 20.  The statement to contrary effect by the Land Court in Reference by the Crofters Commission at paragraph 10 was simply wrong.  What was said in Fforde v McKinnon 1998 SC 110 at 116 and 121 points to the importance of the precise terms of the statutory definition.  The phrase “entitled to take possession” refers to the landlord’s right to out-put the tenant;  “entitlement” means entitlement in a question with the tenant and not with anyone else.  

[22]      While the terms of section 21(4) recognised that land subject to common grazing rights could be resumed and that what was being resumed is referred to as “land”, this had to be read as entirely consequential on the power conferred by section 20(1).  It cannot be argued that an owner of common grazing land has some kind of independent right to resume such land. 

[23]      Mr Cameron commended his proposed interpretation as consistent with the general purpose of the Act as being to promote the economic interest of tenants while restricting those of landlords.  The ability to resume a croft was an encroachment on the security of tenure otherwise provided by the Act and should be understood as having a restricted scope.  Mr Cameron drew further support from the Scottish Parliament having left the terms of section 20 untouched notwithstanding amendment elsewhere to introduce references to owners.  

 

Submissions for the applicant on the question of law

[24]      Sir Crispin explained that his primary submission was that the applicant came within the second leg of section 61;  she was someone entitled to take possession of the relevant interest, so freeing her land from the burden of crofters’ rights, something that the landlord of the inbye of the croft had no interest to do.  However, if he was wrong about that, he adopted the reasoning of the Land Court in coming to the conclusion that where “landlord” appears in sections 20 and 21 the expression must be interpreted as including the owner of common grazings.  As the Land Court had recognised in paragraphs 11 and 12 of its note (paragraphs 15 and 16 in the Scots Law Times report), it was not unusual for the owner of common grazings to be a different person from the owner of an associated croft.  There was no authority on the point but, in a context where the definition has been in place in relation to crofts since 1886 and in relation to agricultural holdings since 1883, there is a long line of resumption applications which have been allowed where the common grazings’ owner was not the landlord of the inbye land.  Where there is such a long established understanding of a legislative provision which has been consistently followed by those affected by it in their daily dealings, the court should be very slow to upset it simply on the basis of an application of the canons of construction:  Bourne v Keane [1919] AC 815 at 857, 860 and 874. 

[25]      Turning to the terms of section 61, Sir Crispin explained that it contains a recognition that the party entitled to the rents might be different from the party entitled to possession.  Normally it would be the same person but even in 1886 there would have been situations where that was not so, whether by reason of assignation of rents, or interposed leases, or separate ownership of the land subject to the tenancy on the one hand and the land subject to common rights on the other.  Accordingly, from 1886 there has been a recognition of the possible disjunction of the right to receive rents and the right to assume possession with a view to allowing those with an interest to resume land in the sense of freeing it from the relevant rights.  This is consistent with the applicant being a “landlord” in terms of the second leg of section 61. 

[26]      As appears from section 3(1) of the 1993 Act, a croft is a holding (even if it is vacant).  Thus where one finds the word “croft” elsewhere in the Act what is being referred to is a bundle of rights which includes the tenancy of the inbye land and any other rights associated with it including a right in pasture or grazing;  “croft” is not limited to the inbye land, it may be the inbye plus the grazing.  Thus when section 20 refers to “part” of a croft, that includes a right in pasture or grazing land which is deemed to form part of a croft by virtue of section 3(4).  When section 20(1) refers to “the” landlord what is meant is the landlord with the title and interest to take possession.  The Divisional Court was correct when it said in Castle v Philp that what is resumed in relation to common grazings is the right rather than the land.  What resumption is concerned with is freeing land from the burden of something to which the crofter has right:  McKenzie v Barr’s Trs 1993 SC 472 at 481E, 482A, 482F, 483D and 484B.  In this case where what is to be resumed is the grazing rights, the applicant is the only person with title and interest (by reason of her ownership and possession of the land) to remove that restriction. 

[27]      That the expression “landlord” fits with an interposed tenant as landlord either of the whole estate or of the common grazings or the minerals would explain why section 20(1) has not been amended. 

[28]      In the event of the ownership of common grazings being separate from the ownership of croft land it cannot be logical that the only person who can resume the grazings is an owner of a croft with a crofting tenant, notwithstanding the fact that he is not the owner of the grazings.  Again, what if some or all of the inbye croft land has been sold to the former tenants?  Mr Cameron’s suggested construction of section 20 would preclude resumption of shares attributable to the crofts which had been sold, whereas the practice of allowing the owner of common grazing to free his land from grazing rights by resumption is clearly authorised by section 20.  

[29]      Sir Crispin concluded by submitting that if his proposed interpretation of “landlord” was correct, the convolutions involved in the Land Court’s reasoning were unnecessary but if his interpretation was not correct, he adopted the reasoning of the Land Court.

Decision
[30]      In formulating its question in the way it has the Land Court assumes that someone in the position of the applicant who can only rely on her ownership of an area of land over which there are rights of common grazing by way of qualification, does not meet the statutory definition of “landlord” in section 61.  Before us that assumption has been challenged.  

[31]      It is common ground that “the landlord”, but only “the landlord”, can apply to the Land Court for authorisation of the resumption of “the croft or part of it”. 

[32]      What the applicant wishes to resume, or take back into her possession, is the right to graze stock on the resumption subjects insofar as that right is held by the tenant of a croft:  cf Reference by the Crofters Commission at paragraph 10.  We say take “back” because at some point an author of the applicant, as proprietor of the relevant land, must be taken to have granted (or been treated as having granted) a right of grazing in favour of the respondent or his author.  It is true that section 21(4), which addresses what is to be paid to crofters when common grazings are resumed, speaks of “the land so resumed” but it is to be borne in mind that Schedule 1 of the Interpretation Act 1978 provides that “land” includes “any estate, interest, easement, servitude or right in or over land”.  As Lord Clyde put it in Trustees of the Tenth Duke of Argyll v MacCormick 1993 SLT 900 at 907I, “resumption is simply the recovery of such rights as have been granted to the crofter”.  That approach was approved by the Full Bench in Mackenzie v Barr’s Trs.  It was followed in relation to grazing rights in Castle v Philp at paragraph 14. 

[33]      The nature of a crofter’s right of grazing in common, such as the right which the applicant seeks to resume here, is discussed by Lord President Clyde and Lord Sorn in Ross v Graesser, by the Full Land Court in Crofters Commission v Arran Limited and Reference by the Crofters Commission (in which the present respondent personally participated) and by the Divisional Court in Castle v Philp (affirmed in Reference by the Crofters Commission).  A crofter’s right of pasturage on the common grazings is incorporeal and ancillary in nature.  It is a pertinent of his croft and held by virtue of the crofter being the tenant of the croft.  It is part of the bundle of rights which constitute the crofter’s holding and, by virtue of section 3(4) of the 1993 Act, it is deemed to form part of the croft.  

[34]      Thus, while a crofter holds the right to share in common grazings by virtue of his tenancy, he is not to be regarded as a tenant of the land over which the right is exercised.  Equally, the crofter’s landlord, in the sense of the landlord of the croft land and the site of the dwelling house, need not be owner of the land over which his tenant has a right of grazing in common.  

[35]      Who then may be the “landlord” who has the right to apply to the Land Court for authority to resume a crofter’s right to share in common grazings?  In our opinion, in the absence of any more specific definition, the answer to that must be found in section 61, which is the general interpretation section of the 1993 Act.  We shall have something to say about the importance of a meaning consistently applied to a provision over a long length of time but, while section 61 includes the qualification “unless the context otherwise requires” and even if that were not there it is not absolutely inevitable that a definition in an interpretation section will always be applied, where such definitions are provided they must be the first, and will usually be the last, port of call when a question of interpretation arises. 

[36]      It was not argued that the applicant was a person “entitled to receive the rents and profits” of “the croft”.  The focus was on the proposition that she was a person “entitled to take possession” of “the croft”.  In our opinion that proposition is well founded.  In most cases the person entitled to receive the rents and profits will be the same person who is entitled to take possession but this will not necessarily be the case:  Fforde v McKinnon 1998 SC 110 at 117A.  We would see it to be clear that when section 20(1) speaks of the application of “the landlord” that means “the landlord” of that part of croft which is the subject of the application for authority to resume.  In the present case that part of the croft which is the subject of the application for authority to resume is the right of grazing on the resumption subjects, being one right in the bundle of rights comprising the respondent’s holding.  That right is a burden or restriction on what would otherwise be the applicant’s entitlement, as proprietor of the resumption subjects, to enjoy exclusive possession of them.  The point was made in the course of submissions that the applicant took title to her property subject to “crofters’ rights”.  That is no doubt so but crofters’ rights are themselves subject, and always have been subject, to their being resumed where that is authorised.  As proprietor, the applicant is a person with title and interest, and indeed the only person with title and interest, to extinguish the restriction by resumption of the right.  Critically, were it not for crofters’ rights, as owner of the resumption subjects with the right to possess in any way recognised by law which is a concomitant of ownership, the applicant would be entitled to take exclusive possession of all rights of grazing over the subjects.  That is not of course to say that she would be entitled to take possession of the respondent’s croft land or the site of the dwelling house but that, in our opinion, is of no consequence if, as is the case, the applicant is in right of something which is trenched upon or restricted by “rights which truly constitute pertinents of the croft and which belong to the tenant of the croft as such”:  Ross v Graesser at 75.  Once these rights (which are what she wishes to resume) are left out of account, as owner the applicant is the person entitled to “out-put” the crofter, to use the language of Fforde v McKinnon at 116H.  She is therefore the person “entitled to take possession” of “the croft” and accordingly, by virtue of section 61, “the landlord”.  In our opinion, this application is competent. 

[37]      In the event that we did not sustain his primary argument Sir Crispin invited us to adopt the reasoning of the Land Court.  As we have essentially sustained Sir Crispin’s argument, that is not a road we need go down, but there are observations in the Land Court’s note which reinforce our conclusion that an owner of land over which there is a right of common grazing in favour of crofting tenants is a “landlord” for the purposes of section 20 of the 1993 Act.  

[38]      In paragraph [2] of its note (paragraph 6 in the SLT report) the Land Court identifies and discusses the general understanding, shared by members of the crofting community, their advisers, the Land Court, and, as it supposes, Parliament, that owners of grazings were to be regarded as “landlords”, at least for the purposes of section 20 and its statutory predecessors, irrespective of whether they were also landlords of croft land.  It describes this as the “broader construction” and states that the broader construction is consistent with what the section “has always been understood to mean”.  Significantly, the Land Court expresses the view that by adopting the broader construction section 20 can be understood in a way which gives effect to the scheme of allowing land to be freed from crofting tenure when this is for a reasonable purpose, while allowing the other provisions of the Act to operate sensibly.  In that the Land Court’s broader construction is what we would regard as the correct construction, the Land Court’s observation that that construction allows the other provisions of the Act to operate sensibly provides important reassurance that our construction, albeit arrived at by purely textual analysis, is nevertheless a practical one.  However, it goes further than that.  In its note we have quite unequivocal statements by the Land Court that it has been the clear understanding of all those with an interest, that section 20 and its predecessors have been intended to cover an application by the owner of common grazings;  that this understanding was well-established and that it had never previously been challenged (see note, paragraphs [11] and [12] (paragraphs 15 and 16 in the SLT report)).  These are strong statements, but the Land Court is uniquely well placed to make them:  Jardine v Murray 2012 SC 185 at paragraph 46 and Telfer v Buccleuch Estates Ltd 2013 SLT 899 at paragraph 48, and we accordingly take them as authoritative.  The position therefore is that from the time of the institution of crofting tenure, the relevant statutes have been consistently interpreted as comprehending the owner of common grazings within the expression “landlord”, giving rise to an established practice in terms of which such owners have been able to apply to the Land Court for authority to resume the grazings or parts thereof.  We see that as strong reinforcement for our construction of the relevant provision in that not only does it accord with informed opinion but that those concerned have made their dispositions upon that basis. 

[39]      With a view to underlining the weight to be given to a settled construction, Sir Crispin drew our attention to the decision of the House of Lords in Bourne v Keane [1919] AC 815 and certain dicta which are to be found there in the speeches of Lord Chancellor Birkenhead and Lord Buckmaster.  What the Judicial Committee in fact did in that case was to overrule decisions which, as the Lord Chancellor put it, “have been treated as binding for generations”, but he and Lord Buckmaster and also Lord Wrenbury who dissented, all acknowledged how serious a step it was to depart from a settled construction.  Their speeches contain reference to statements to similar effect in earlier cases.  One of the passages referred to by Sir Crispin was to be found in the speech of Lord Buckmaster at 874 where his lordship set out three principles which he had derived from the authorities.  The first of these was that: 

“... the construction of a statute of doubtful meaning, once laid down and accepted for a long period time, ought not to be altered unless your Lordships could say positively that it was wrong and productive of inconvenience.”

 

We see the force of that remark, although we would require to hear further argument before adopting it as a general principle of construction.  For present purposes that is unnecessary.  We have arrived at what we consider to be the plain meaning of the statute and have been strengthened in our conclusion by the assurance of the Land Court, as the body best placed to give such assurance, that it is a practical construction which accords with what has previously been understood to be the meaning of the Act.  We see no need for further analysis.  

 

Disposal
[40]      We shall have the special case brought out by order to allow the parties to address us on what orders should be pronounced.  While the question to be answered is that stated by the Land Court and not the parties, we would accept, as submitted by the applicant, that the question as stated is not capable of an entirely straightforward answer.  We propose to answer it as follows: 

The meaning of “landlord” where it appears in section 20 of the Crofters (Scotland) Act 1993 is provided by the definition in section 61 of the Act. Having regard to that definition, the Scottish Land Court did not err in holding that the reference to “landlord” in section 20 applies to all owners of common grazing land and, in particular, the present applicant.

We reserve all questions of expenses.