Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSIH_50.html
Cite as: 2019 SLT 139, 2018 SC 636, 2018 Hous LR 86, [2018] CSIH 50, [2018] ScotCS CSIH_50, 2018 GWD 26-328

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Menzies

Lord Brodie

Lord Glennie

OPINION OF LORD MENZIES

[2018] CSIH 50

XA70/17

in the Special Case stated by

THE SCOTTISH LAND COURT

for the Opinion of

THE INNER HOUSE OF THE COURT OF SESSION

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

at the request of

JOHN MACAULAY

Applicant and appellant

In his application for an order under section 14(4)(b) of the Crofting Reform (Scotland) Act

2010 modifying the entry in the Crofting Register in respect of the croft at 1A Tolsta

Chaolais, Isle of Lewis

against

MRS MARY ANN MORRISON

and

Respondent

MARK TAYBURN

Interested party and respondent

Applicant and Appellant: Party

Interested Party and Respondent: Murray; Turcan Connell

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17 July 2018

[1] I am in complete agreement with the reasoning and conclusion of Lord Brodie, and

there is nothing I wish to add. I would answer the question in the special case in the

negative. I also agree with the views which Lord Brodie expresses in the postscript to his

opinion.

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Menzies

Lord Brodie

Lord Glennie

OPINION OF LORD BRODIE

[2018] CSIH 50

XA70/17

in the Special Case stated by

THE SCOTTISH LAND COURT

for the Opinion of

THE INNER HOUSE OF THE COURT OF SESSION

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

at the request of

JOHN MACAULAY

Applicant and appellant

In his application for an order under section 14(4)(b) of the Crofting Reform (Scotland) Act

2010 modifying the entry in the Crofting Register in respect of the croft at 1A Tolsta

Chaolais, Isle of Lewis

against

MRS MARY ANN MORRISON

and

Respondent

MARK TAYBURN

Interested party and respondent

Applicant and Appellant: Party

Interested Party and Respondent: Murray; Turcan Connell

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17 July 2018

Introduction

[2] This is an appeal by way of special case from a decision of the Scottish Land Court.

The special case is stated on a question of law for the opinion of the Inner House of the

Court of Session in terms of section 1(7) of the Scottish Land Court Act 1993, rules 83 to 87 of

the Rules of the Scottish Land Court 2014 (SSI 2014/229) and part II of chapter 41 of the Rules

of the Court of Session. It is stated at the request of the applicant, Mr John Macaulay, in an

application for an order under section 14(4) of the Crofting Reform (Scotland) Act 2010, as

amended by the Crofting (Amendment) (Scotland) Act 2013 (“the 2010 Act”).

[3] The application under section 14(4) of the 2010 Act was a challenge to the first

registration (on the application of the then tenant, Mrs Mary Ann Morrison) of the croft at

1A Tolsta Chaolais, Isle of Lewis (“croft 1A”). By order of 13 March 2017, following a

hearing, the Land Court dismissed the section 14(4) application. Attached to the Land

Court’s order is a very full Note to which we shall have occasion to refer.

[4] In his note of argument to this court Mr Macaulay designates himself as “the

appellant”. He refers to Mrs Morrison, who was the respondent to the section 14(4)

application before the Land Court, as “the respondent”, and he refers to Mr Mark Tayburn,

the crofter of 1C Tolsta Chaolais, who appeared before the Land Court as an interested party

and appears before this court as the compearing respondent, as “the interested party”. In

this opinion we shall adopt these descriptions of the parties.

[5] While in a draft statement of case the appellant proposed seven questions for the

opinion of this court, the Land Court considered that the question of law arising could

effectively be stated in one question:

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“Did the Scottish Land Court err in dismissing the Application on the basis that the

Applicant had failed to instruct a sufficient interest to challenge the registration of

the croft in the Crofting Register?”

It appears to us that the question of law arising can be further focussed as:

“Is the appellant a person ‘who otherwise is aggrieved by the registration of croft 1A in

terms of section 14 of the 2010 Act’”?

The Crofting Register

[6] Among the reforms introduced by the extensive amendments to existing legislation

effected by the 2010 Act, was the imposition of a duty on the Keeper of the Registers of

Scotland (“the Keeper”) to establish and maintain a public register of crofts, common

grazings and land held runrig to be known as the Crofting Register: 2010 Act section 3.

There had previously been a Register of Crofts, maintained by the Crofters Commission,

initially in terms of section 3(2) of the Crofters (Scotland) Act 1961 and latterly in terms of

section 41 of the Crofters (Scotland) Act 1993. For the time being the Register of Crofts

remains extant. The Register of Crofts is not map-based, something which has attracted

criticism (see eg Flyn and Graham Crofting Law (2017 edit) p29); rather, it sets out the name

of the croft, the parish and landholding on which it is situated and the current tenant. It

may contain, in respect of a particular entry, other relevant information such as the tenant’s

share in or apportionment of common grazing (see the Rural Affairs and Environment

Committee of the Scottish Parliament Report at Stage 1 of the Crofting Reform (Scotland) Bill

(the “Stage 1 Report”)). The Commission, now renamed the Crofting Commission by virtue

of section 1 of the 2010 Act, will continue to maintain the Register of Crofts but over time

that register will incrementally be superseded by the Crofting Register.

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[7] In introducing the Stage 1 debate on the Bill which became the 2010 Act, the

responsible minister, Roseanna Cunningham, described the then proposed Crofting Register

as “an accurate and unambiguous crofting register that will clearly show land that is held in

crofting tenure and provide greater security for everyone with an interest in that land”. The

Stage 1 Report had described the Crofting Register as “map-based...which will eventually be

comprehensive, so that the boundaries of each and every croft will be mapped definitively.”

The statutory framework for achieving this intention is now provided by a requirement that

an unregistered croft must be registered in the new Crofting Register by one of the owner of

the land on which the croft is situated, the landlord, the crofter or the owner-occupier

crofter, on the occurrence of one of the events specified in section 4(1) and (4) of the 2010 Act

and, thereafter, the registration, as they occur, of the various events specified in section 5.

Mr Murray, who appeared in this court for the interested party, advised us that, for an initial

period following on commencement of the 2010 Act (30 November 2012 to 30 November

2014) provision was made for voluntary registration in terms of section 4(2).

[8] An application for registration in the Crofting Register must be submitted to the

Commission by the person specified in section 6. The Commission must then forward the

application to the Keeper, subject to the Commission being entitled to refuse to do so in the

event of any of the circumstances specified in section 7 (5) (one of which being that there is a

material inaccuracy in the application) being applicable. The Keeper must accept an

application if it is accompanied by such documents and other evidence as the Keeper may

require (section 8(1)). Having accepted an application, the Keeper must complete

registration, in the case of a first registration by making up a registration schedule in

accordance with section 11 (section 9(1)), and issue a certificate confirming registration

(section 9(2)). Section 11(1) requires the Keeper to make up and maintain a registration

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schedule of every croft registered in the register. In terms of section 11(2) the Keeper must

enter in the registration schedule: (a) a description of the land which comprises the croft that

must consist of or include a description of it based on the ordnance map or such other map

as the Keeper considers appropriate; (b) the name and designation of, as the case may be,

any tenant of the croft, any owner-occupier of the croft, any landlord of the croft, and any

owner of the croft; and (c) such other information as the Keeper considers appropriate.

[9] The Keeper may accept an application for registration despite the fact that the

description of the croft includes land which is already entered in the registration schedule of

another croft, a common grazing or land held runrig (section 8(3)). However, in terms of

section 11(3), the Keeper may not include in a registration schedule a description which

includes already registered land.

[10] Registration of a holding in the Crofting Register has the effect: (a) of confirming the

holding as a croft for the purposes of the Crofters (Scotland) Act 1993: (b) of determining, by

reference to the description in the registration schedule, the extent of the land (including any

right of pasture or grazing in land held in common or apportioned and any land held

runrig) which comprises the croft; and (c) of confirming that any person entered as the

tenant of the croft is a crofter: 1993 Act section 3ZA.

[11] Section 15 provides for the removal of resumed and decrofted crofts from the

[12] Thus, the scheme for registration under the 2010 Act is for the incremental but

eventually comprehensive registration of crofts, which in due course will be identifiable as a

patchwork of discrete units on (most probably) the Ordinance Survey map of the crofting

counties, with any ancillary rights adhering to these units being specified in the relevant

registration schedule. There are accordingly parallels between this scheme and the scheme

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for the creation of a comprehensive Land Register of Scotland in substitution for the Sasine

one obvious point of difference is the involvement of a public authority, the Commission, in

the process prescribed by the 2010 Act.

[13] Broadly speaking, post 30 November 2014, what will trigger the requirement to

of a right in respect of a croft and it will be the person acquiring that right who will, in terms

of section 6, be obliged to apply for registration. An application for registration can

therefore be seen as having the character of an assertion of a particular right in respect of a

croft of a particular extent which registration will endorse.

[14] Section 14 provides a mechanism for that assertion to be challenged and the

challenge adjudicated upon by the Land Court. This appeal raises the question whether the

appellant is a person who can bring such a challenge in relation to the registration of

croft 1A. Before going further it is convenient to note the terms of the legislative provisions

which bear most directly on that question.

The legislation

[15] Sections 12 and 14 of the 2010 Act provide, inter alia:

“12 Notification of first registration

(1) Subject to subsection (2), the Commission must, on receipt of a certificate of

registration under section 9(2) or, as the case may be, a copy of such a certificate under

section 9(4), notify any persons mentioned in subsection (3) of the matters mentioned

in subsection (4).

(2) The Commission need not notify a person mentioned in subsection (3)—

(a) where that person is the applicant for registration; or

(b) where the certificate of registration issued under section 9(2) relates to a first

registration as a result of the taking of the step mentioned in section 4(4)(p).

(3) Those persons are—

(a) the owner of the croft;

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(b) the landlord of the croft;

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

(e) the owner of any adjacent croft;

(f) the landlord of any adjacent croft;

(g) the crofter of any adjacent croft;

(h) the owner-occupier crofter of any adjacent croft;

(i) the owner of any adjacent land (not being land which is an adjacent croft);

(j) the occupier of any adjacent land (not being land which is an adjacent croft).

(4) The matters referred to in subsection (1) are—

(a) that the croft has been registered;

(b) the description of the croft as it is entered in the registration schedule;

accordance with section 11(2)(b);

(d) the right to challenge the registration by applying to the Land Court under

section 14(1);

(e) the period, mentioned in subsection (5), before the end of which such a challenge

must be brought.

(5) That period is the period of 9 months beginning with the date on which the

Commission issue notification under subsection (1).

…

(7) The Commission must notify the applicant of the date mentioned in subsection (5).

(8) The applicant, on receipt of the certificate under section 9(2) relating to a first

registration (other than of a new croft or other than as a result of the taking of the step

mentioned in section 4(4)(p)), must give public notice of the registration of the croft

by—

(a) placing an advertisement, for two consecutive weeks, in a local newspaper

circulating in the area where the croft is situated; and

(b) affixing a conspicuous notice in the prescribed form to a part of the croft.

…

14 Challenge to first registration

(1) Subject to subsection (3), any person to whom notice is given under section 12(1), or

who otherwise is aggrieved by the registration of the croft to which the notice relates,

may apply before the end of the period mentioned in section 12(5) to the Land Court

for an order under subsection (4)(a) or (b).

(2) Where an application under subsection (1) is made after the end of the period

mentioned in section 12(5), the Court may, on cause shown, deal with the application

as if it had been made before the end of that period.

(3) Subsection (1) does not apply as respects the registration of a croft as a result of the

taking of the step mentioned in section 4(4)(p).

(4) On receipt of an application under subsection (1), the Court may—

(a) make an order that the entry in the register relating to the croft be removed;

(b) make an order that the entry in the register relating to the croft be modified;

(5) Where subsection (6) applies, the Court must, if making an order such as is

mentioned in subsection (4)(b), declare the boundary of the croft to be that which, in

all the circumstances, it considers appropriate.

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(6) This subsection applies where—

(a) the application challenging the registration raises a question as to the boundaries

of the croft; and

(b) the evidence available to the Court is insufficient to enable any boundary to be

clearly determined.

(7) Where the Court makes an order under subsection (4)(a) or (b), the Keeper must

make such amendment to the registration schedule of the croft and to the register as is

necessary.”

Procedure before the Scottish Land Court

[16] The Note appended to the Land Court’s order of 13 March 2017 narrates that

registration by the Keeper of croft 1A in the Crofting Register on an application by the

respondent, duly completed by the Keeper in terms of section 11, provoked two challenges

before the end of the 9 month period mentioned in section 12(5) of the 2010 Act. In their

separate applications, the appellant (by Application RN SLC/119/15) and Mrs Mary A Taylor

and Mrs Ena Jess (by Application RN SLC/127/15) (collectively, “the Applicants”) applied

for orders under section 14(4) of the 2010 Act modifying the entry in the Crofting Register.

Answers were lodged by the respondent and the interested party. The interested party

having called into question the interest of the Applicants to challenge the first registration,

the Land Court made arrangements in terms of rule 11(2)(c) of the 2014 Rules for cases

SLC/119/15 and SLC/127/15 to be heard together with a debate fixed for 8 November 2016 at

Stornaway.

[17] The Applicants and the interested party appeared at the debate as did the

respondent albeit, as was explained to the Land Court, she had assigned the croft to

Ms Frances Muriel Berrill on 29 February 2016. The Land Court indicates in its Note that no

practical issue arose as to the respondent’s interest to oppose the section 14 applications

because at the hearing her representative was content to adopt the submissions advanced on

behalf of the interested party.

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[18] Having disposed of a preliminary issue in case SLC/127/15 as to the sufficiency of the

notice which had been given in respect of first registration, the Land Court heard argument

on the preliminary pleas taken by the interested party in his answers to the respective

section 14 applications. His plea to the application at the instance of the appellant

(SLC/119/15) was in these terms: “The applicant not being aggrieved by the registration of

croft 1A, the application should be found incompetent and should be dismissed.” His plea

to the application at the instance of Mrs Taylor and Mrs Jess (SLC/127/15) was in these

terms: “The applicants not having standing or interest and not being aggrieved by the

registration of croft 1A, the application should be found incompetent and should be

dismissed.” The difference between the terms of the preliminary pleas was intended to

reflect the different status of, on the one hand Mrs Taylor and Mrs Jess, as persons entitled to

notice in terms of section 12(1) of the 2010 Act, and, on the other, the appellant, who was not

a person entitled to notice. Mrs Taylor and Mrs Jess own the decrofted house site and

garden ground which formerly formed part of the croft 1B Tolsta Chaolais (“croft 1B”).

Croft 1B adjoins one of the five discrete and separate plots of land that together make up

croft 1A. As the Land Court observed at paragraph [31] of its Note, the appellant can point

to none of the various proprietary or crofting interests listed in section 12(3) of the 2010 Act.

He had assisted family members in working crofts 1A, 1B and 1C in the early 1950s and the

tenancy of croft 1C Tolsta Chaolais had remained within his family until the 1990s but, as far

as his present interest was concerned, he sought to rely simply on his being a regular visitor

to the area (albeit a visitor with personal knowledge of how crofts 1A, 1B and 1C had

formerly been possessed).

[19] In upholding the interested parties’ preliminary pleas and dismissing both

Application RN SLC/119/15 and Application RN SLC/127/15, the Land Court held that in

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order to challenge first registration by way of a section 14 application it was necessary that

an applicant must demonstrate an interest in effecting the modification (or removal) sought.

This was so whether that applicant was a person who was entitled to notice in terms of

section 12(1) and (3) or if he or she was a person who claimed to be otherwise aggrieved by

the first registration. In the present cases the Applicants contended that the extent of croft

1A as registered did not precisely conform to its historical state of possession. This was

accepted by the respondent and the interested party. On that basis it had been argued that

the entry in the Crofting Register was other than correct. However the Land Court did not

accept that the Applicants’ wish that the register reflected the “true or historic boundary”

was sufficient by way of a live practical interest in the demarcation of the boundaries of croft

1A to challenge its registration.

Submissions to this court

Preliminary

[20] Both the applicant and the interested party had lodged full notes of argument.

Consideration of the interested party’s note led the court to seek to confirm with Mr Murray,

on behalf of the interested party, whether he proposed to insist on an argument to the effect

that as the appellant had not specified in his notification requiring that a special case be

stated that he requested an interim order suspending registration of croft 1A, as he might

have done in terms of rule 84(2)(e) of the 2014 Rules, the special case and the instant appeal

were now hypothetical, as the registration of the croft had now been completed. On the

court questioning whether this was really an arguable proposition, Mr Murray intimated

that he did not insist in the argument. It was therefore not further considered.

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Appellant

[21] On the court indicating that it had read the parties’ respective notes of argument, the

special case, the Land Court’s Note and the authorities referred to therein, the appellant

initially stated that he was content simply to adopt his note of argument. However,

encouraged by the court, in a concise oral submission he highlighted why it was that he

considered himself aggrieved by the registration of croft 1A. His concern was that the

registration of the croft had been incorrect in that it did not reflect its proper boundaries. He

knew the area well and knew exactly what should have been included and what should

have been excluded. There was the potential for trouble in future. His interest was the same

as that of anyone else in the country or in the locality: that the Crofting Register should be

correct. When it came to croft boundaries small differences were significant. Attempting to

delineate boundaries on the Ordinance map was a very imperfect measure. At best only a

rough boundary could be indicated. In the present case there was a public right of way.

That required to be precisely marked. While a right of way will pertain to the land,

irrespective of any crofting interest, it was important that the location of the track over

which it could be exercised was clear, particularly where there was a new tenant who was

unaware of the history. Moreover, if, as he submitted (and this did not seem to be disputed)

everything that should have been included when croft 1A was registered was not included,

the effective result is an exchange of croft land as among the crofters of crofts 1A, 1B and 1C.

That is something which is specifically forbidden by section 4A(1) of the 1993 Act.

[22] The applicant’s submissions as set out in his note of argument and adopted by him

may be summarised as follows.

[23] The only basis for a valid challenge to a first registration is that the information

submitted to the Keeper is incorrect. Accordingly, any person who can objectively articulate

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such a challenge should be allowed to lead evidence in its support. In enacting section 14(1)

of the 2010 Act the Scottish Parliament has not restricted the category of those who can

competently challenge the registration of a croft, other than by the requirement that they are

aggrieved in the sense of having an objective, or quantifiable grievance about the

registration. It is evident that Parliament intended to provide the public at large with both

the authority and the opportunity to mount challenges to incorrect croft detail being

submitted for registration. As a public, map-based register of land, the Crofting Register

requires to all entries to be as accurate as possible. There is no room in the legislation for

boundaries other than de iure boundaries (as the Land Court had termed them) to be

entered; any other approach is wrong. It follows that all entries must reflect the de iure

boundaries of crofts; the register will cease to be accurate should the de facto croft

boundaries, if in conflict with de iure boundaries, be registered therein. There is a public

interest in the accuracy of the register, particularly in relation to croft 1A given the number

of public rights of way traversing the croft land. Determining croft boundaries can be

difficult and troublesome. In Land Court proceedings there has often been resort to

evidence of knowledge handed down over the generations. That being so, it is particularly

incumbent on the Land Court, on a section 14 application, to hear the most knowledgeable

and informed evidence as to the correct boundaries that is available. In the present case

neither the respondent nor the interested third party had any knowledge as to the correct

boundaries of the croft, albeit that they conceded that the boundaries submitted for

registration differed in various respects from the true or historical position.

[24] It was the Land Court which introduced the concept of de facto as opposed to de iure

croft boundaries (Note, paragraph 33). There is no legal basis for such a distinction and the

Land Court misdirected itself in making such a distinction between the “purist” approach

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and the “pragmatic” approach. Either the croft boundaries as submitted for registration

were correct or they were not.

[25] Moreover, the Land Court erred (by equating submissions with evidence) in finding

as a matter of fact that the appellant’s challenge would involve the disruption of an

established pattern of occupation and fencing with which the persons who actually occupy

crofts 1A, 1B, 1C Tolsta Chaolais have confirmed they are content. The Court had not heard

evidence on the matter and therefore was not entitled to make any findings in fact.

[26] The correct test for determining whether the appellant was a person who might

competently make an application in terms of section 14 of the 2010 Act was whether he was

someone who had something which can be fairly regarded as an objective grievance, in

other words something other than a fanciful or speculative grievance, see Conti v AIP Private

Bank Ltd 2000 SC 240 and also AXA v Lord Advocate 2012 SC (UKSC) 122, Walton v Scottish

Ministers 2013 SC (UKSC) 67 and The Christian Institute and Others v The Lord Advocate (in the

Inner House) 2016 SC 47 and (in the Supreme Court) 2017 SC (UKSC) 29.

Interested party

[27] Mr Murray adopted his note of argument and invited the court to answer the

question in the special case in the negative.

[28] It was the respondent’s submission that the applicant was not “a person aggrieved”

by the first registration of the croft, in other words the applicant did not have the necessary

title and interest to make an application to the Land Court under section 14(4)(b) of the 2010

Act. It was not in dispute that the applicant had no proprietary or financial interest in the

crofts subject to registration or in any nearby land. The 2010 Act had not conferred any new

right on the appellant: cf Buxton v Minister of Housing and Local Government [1961] 1 QB 278

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at 283. The Land Court had made no error of law. It had not disregarded judicial authority.

AXA, Walton and The Christian Institute, to which the appellant had made reference, all

concerned public law issues whereas the present case concerned private law where the

approach to title and interest explained by Lord Dunedin in D&J Nicol v Dundee Harbour

Trustees 1915 SC (HL) 7applied. The function of the supervisory jurisdiction of the Court of

Session is entirely different from challenges to the registration of crofts before the Scottish

Land Court. The Land Court had been correct in stating that standing depended on the

distinction made by Lord Fraser in R v Commissioners of Inland Revenue ex p National

Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 (the Fleet Street Casuals

case) at 646 between “the desire of the busybody to interfere in other people’s affairs” and

“the interest of the person affected by or having reasonable concern with the matter to which

the application relates.” In Fleet Street Casuals Lord Fraser had gone on to identify the

approach to be adopted in making the distinction between, on the one hand, the busybody

and, on the other, the person affected by or having a reasonable concern with the matter.

That was to look at the statute under which the duty arises, and to see whether it gave any

express or implied right to persons in the position of the applicant to complain of the alleged

unlawful act or omission. Looking at the relevant part of the 2010 Act one can see that it has

five purposes: (1) the institution of a system of registration of crofts with a view to reducing

disputes over boundaries; (2) allowing crofters to register, individually or collectively, what

are private interests in a public register; (3) providing for approval of registration by the

Crofting Commission; (4) allowing for challenge to registration by those with an interest in

adjoining properties; and (5) allowing a limited scope for challenge by a person otherwise

aggrieved by registration. Three benefits arise from this system: (1) improved regulation

based on the requirement of a map showing the croft; (2) certainty for those coming into

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occupation of the croft by removing doubt as to its past history; and (3) maintaining the

system of crofting tenure. When regard is had to these purposes and benefits it becomes

clear that the appellant has no legal rights, interests or expectations which are prejudiced by

registration of the croft; he therefore cannot be “aggrieved” by the registration.

[29] There may be a tension between reinstating historic boundaries and registering

boundaries that reflect the immediate status quo ante. The Land Court had properly resolved

this in its analysis of the statutory scheme, finding that there was a duty on the Court to

recognise a boundary and give effect to it where the evidence available was sufficient to

enable the boundary to be clearly determined (Note, paragraph [29]). The underlying public

policy was to have an effective system of croft registration that gives legal effect to the

status quo ante of croft boundaries, rather than to provide a forum for debate over historic

croft boundaries. The test of “live practical interest” adopted by the Land Court was an

appropriate one, forming as it did part of the assessment of title and interest. The historical

enquiry envisaged by the applicant was, as was recognised by the Land Court, likely to be

evidentially difficult and costly (Note, paragraph [30]). Registration was intended to make

such litigation a thing of the past. Section 53A of 1993 Act gave the Land Court some

discretion in disputed and uncertain situations. It is inherent in the statutory scheme for

registration that the process should be practical and effective. The boundaries registered in

the present case are those which the tenants of crofts 1A, 1B, and 1C have agreed and which

reflect the long-established position on the ground (Note, paragraph [27]). That has the

practical benefit of following existing fencing and suiting stock management. Conversely,

there can be no practical benefit to be derived from an historical enquiry into what were

referred to as de iure boundaries, particularly when the person seeking the enquiry has no

proprietary or financial interest in the matter.

Page 18 ⇓

[30] The Land Court was not making a finding of fact when it observed that modification

of the register “would involve the disruption of occupation and fencing with which [the

occupants] have confirmed they are content”. It was uncontroversial that the registration

sought to be challenged reflected the existing boundaries. If the section 14 challenge did not

seek to modify these boundaries it would be of no substance.

[31] The remarks made by the Land Court about de facto as opposed to de iure croft

boundaries were obiter dicta. The issue was whether the person seeking to make the section

14 challenge had demonstrated that he or she had sufficient interest to do so

(Note, paragraph [33]). The Land Court had been correct in finding that the appellant did

not have sufficient interest.

Decision

[32] Given that it had two applications before it, from parties with different status, the

Land Court required to consider the issue of qualifying interest to make a section 14

application both from the perspective of persons entitled to notice in terms of section 12(1),

and from the perspective of a person who was not entitled to notice. We do not have to do

that. Mrs Taylor and Mrs Jess, who were entitled to notice, have not appealed the dismissal

of Application RN SLC/127/15. The appellant, on the other hand, has appealed the dismissal

of Application RN SLC/119/15 but he was not entitled to notice. Thus, as we have already

identified, the sole issue is whether the appellant has demonstrated that he should be

regarded as a person who, for the purposes of section 14(1) of the 2010 Act, is “otherwise

aggrieved by the registration of croft 1A”.

[33] Determining what is meant by “any person …who otherwise is aggrieved by the

registration of the croft” is an exercise in statutory interpretation. As such, the object is very

Page 19 ⇓

familiar: discerning the intention of Parliament by reference to the ordinary and natural

meaning of the words used, read in their context. Thus, while the starting point will

inevitably be a consideration of what is the ordinary and natural meaning of the word or

phrase in question, because of the importance of context it is not the case that a particular

word or phrase will necessarily have the same meaning when encountered in one statute as

it has when encountered in another: Walton v Scottish Ministers, Lord Reed at para. 84,

under reference to Arsenal Football Club Ltd v Ende, Smith[1979] AC 1 at 32 and Lardner v

Renfrewshire Council 1997 SC 104 at 108.

[34] The importance of context when interpreting legislation impacts on how useful it

will ever be to seek to interpret an expression in one statute by reference to decisions on the

interpretation of the same or a similar expression in other statutes. At paragraph [20] of its

Note the Land Court questioned just what assistance it could get from the decision in Conti v

AIP Private Bank Ltd, a decision which was concerned with the interpretation of section

653(1) of the Companies Act 1985, when the task in hand related to the interpretation of

section 14(1) of the 2010 Act. The Land Court was right to be cautious about simply

applying what was said in Conti about the circumstances in which a company or any

member or creditor of it might feel aggrieved by the company being struck off the

Companies’ Register, to the different case of someone being a person aggrieved by the

registration of a croft in the Crofting Register, but that is not to say that in matters of

interpretation there can be no purpose in referring to authorities which consider the

meaning of the same or similar expressions, even when they are to be found in different

statutes. After all, that was just what Lord Reed did in Walton at paras [83] and [85] to [87].

That there is a legitimate purpose in referring to authorities addressing the interpretation of

a particular expression is identified by Salmon J (as he then was) in Buxton v Minister of

Page 20 ⇓

Housing and Local Government, a case mentioned by Mr Murray, which raised “the perennial

question” as to what the legislature meant when it uses the words “aggrieved person”.

Although, “some cases [go] one way and some the other”, it is legitimate, Salmon J explains

(at 286), to look at the authorities in order to see what the general principles are that can be

extracted from them as a guide in approaching the question as to what the particular words

in question, for example “aggrieved person”, mean in any particular statute.

[35] We begin then with the ordinary and natural meaning of the words “any person

…who otherwise is aggrieved by the registration of the croft”. Clearly the expression is

intended to identify a restricted category of persons; otherwise “any person” would have

sufficed. Were there any doubt about that we would see it dispelled by the association of

“who otherwise is aggrieved” with the immediately preceding “person to whom notice is

given under section 12(1)”. Now, the persons to whom notice is given under section 12(1)

have the common character that they are all persons with an interest in land in the

immediate vicinity, whether it be the croft in question; an adjacent croft; or other adjacent

land, not being land which is an adjacent croft. We do not consider that it follows from that

that a person “who otherwise is aggrieved” must have an interest in land (wherever

situated). However, we would see it to be self-evident that the person must be “aggrieved”

and that he or she must be aggrieved “by the registration of the croft”.

[36] As for “aggrieved”, the Oxford English Dictionary (2nd edit) provides four definitions

of aggrieved. Two are described as obsolete. One is “injured physically, hurt, afflicted.”

However the definition which is apposite for present purposes is: “injured or wronged in

one’s rights, relations or position; injuriously affected by the action of any one; having cause

for grief or offence, having a grievance”. Now there are cases where the dictionary

definition has to yield in the face of special circumstances, for example where a word in

Page 21 ⇓

common usage has an additional meaning as a legal term of art or where the statute itself

provides a definition, but in the United Kingdom the Oxford English Dictionary can be

taken to be a reliable indicator of the ordinary and natural meaning of a particular word.

This is not a case of special circumstances. Thus, for a person to be “aggrieved” it is not

enough that he is unhappy about something; he must have an identifiable cause for his

unhappiness and it must have adversely affected him in some way. That was the point

being made by Lord Prosser, when considering the expression “feels aggrieved by the

company having been struck off the Register” in Conti v AIP Private Bank Ltd at 243D. As he

put it: “subjective dissatisfaction is not enough: there must be something which can fairly be

regarded as an objective grievance.” Similarly, in Lardner v Renfrew District Council, in a

passage particularly relied on by Mr Murray, the Lord President (Rodger) said:

“…there is a difference between feeling aggrieved and being aggrieved: for the latter

expression to be appropriate, some external basis for feeling ‘upset’ is required –

some denial of or affront to his expectations or rights.”

And in Attorney General of the Gambia v N’Jie ([1961] AC 617 at 634 (a passage cited by Lord

Reed in Walton), Lord Denning delivering the judgment of the Judicial Committee of the

Privy Council, having acknowledged that the words “person aggrieved” are of wide import

and should not be subjected to a restrictive interpretation, went on:

“They do not include, of course, a mere busybody who is interfering in things which

do not concern him: but they do include a person who has a genuine grievance

because an order has been made which prejudicially affects his interests.”

[37] Obviously, “interests” can include proprietary or other pecuniary interests but, as is

illustrated by the authorities, the expression can have a wider meaning. What was in issue

in Attorney General of the Gambia v N’Jie was whether the Attorney General had standing by

virtue of being a “person aggrieved” to seek leave to appeal against a finding by the West

Page 22 ⇓

African Court of Appeal setting aside an order made in disciplinary proceedings against a

barrister and solicitor. In giving the judgment Lord Denning said this (supra at 694):

“Has the Attorney-General a sufficient interest for this purpose? Their Lordships

think that he has. The Attorney-General in a colony represents the Crown as the

guardian of the public interest. It is his duty to bring before the judge any

misconduct of a barrister or solicitor which is of sufficient gravity to warrant

disciplinary action.”

Attorney General of the Gambia v N’Jie was one of the decisions in the most recent of three

groups of cases concerned with whether public authorities may be “aggrieved” for the

purpose of rights of appeal, which were considered by Woolf LJ, as he then was, in Cook v

Southend-on-Sea Borough Council [1990] 2QB 1 (described by Lord Reed in Walton at para [85]

as a “valuable review of the English authorities”). Woolf LJ saw the recent cases as

illustrating a progressively more generous interpretation of “person aggrieved”. He

concluded (at 18) that normally:

“…a public authority which has an adverse decision made against it in an area where

it is required to perform public duties is entitled to be treated as a person aggrieved.”

At para [85] of Walton Lord Reed turned to statutory appeals under the Town and Country

Planning Acts and at para [86] he observed that it was apparent from these authorities that

persons will ordinarily be regarded as aggrieved if they had made objections or

representations as part of the procedure which preceded the decision challenged, and their

complaint is that the decision was not properly made. He then quoted what had been said

by the Lord President (Hope) in North East Fife District Council v Secretary of State for Scotland

1992 SLT 373 at 375 and 376:

“But in my opinion the fact that all three appellants were present at, and made

representations at the public inquiry is sufficient for them to be persons ‘aggrieved’

… they were entitled to expect that the Secretary of State, in considering their

representations, would act within the powers conferred upon him by the statute and

… they are entitled to appeal against his decision on the ground that he has not done

so.”

Page 23 ⇓

[38] Thus, a person may be aggrieved where he takes part in a decision-making process

and a decision is improperly made which is contrary to the decision he had advocated.

Similarly, as Lord Reed explains at para [87] in Walton, a person may be aggrieved if he is

improperly prevented from participating in a decision-making process in which he had an

entitlement to participate. There is therefore a variety of sorts of interests which, if

adversely affected, may give rise to a relevant grievance but, as appears from all the cases

considered in Walton, to be a person aggrieved that person must be able to point to

something of the nature of a personal interest in the matter to which the decision, act or

omission in question relates, and he must be able to point to some way in which the

decision, act or omission has adversely affected that interest. One of the cases cited by

Woolf LJ in Cook as illustrating a more generous approach was Arsenal Football Club Ltd v

Ende, Smith [1979] AC 1. There, a ratepayer was found to be a “person aggrieved” for the

purpose of challenging (as too low) the assessment to rates of a neighbouring football

stadium, albeit he could demonstrate no direct financial or other loss. However, the passage

from the speech of Viscount Dilhorne which Woolf LJ quoted by way of illustration of the

more generous approach again emphasised that to be “aggrieved” a person must be

adversely affected by the matter of which he complains (supra at 17).

[39] What then does the appellant say is his interest and how does he say it has been

adversely affected by the registration of croft 1A? The appellant was very clear when

putting forward his position. While he had a particular knowledge of how crofts 1A, 1B and

1C had been possessed in the past, based on his family’s experience, and he continued to

visit the area, he claimed no interest other than that of anyone else in the country or the

locality in ensuring that the Crofting Register was “correct”. It followed that to the extent he

could claim to be aggrieved it was because he considered the relevant entry in the register to

Page 24 ⇓

be incorrect. In other words it was the position of the appellant that he, a private individual,

can be aggrieved by reason of the Keeper completing registration because, in the appellant’s

view, registration in the terms in which it was completed was contrary to the purely public

interest in there being a “correct” register.

[40] Mr Murray submitted that the Crofting Register was a public register of private

relationships. That statement is accurate as far as it goes but it gives no weight to the

consideration that maintaining land under crofting tenure must be considered as being in

the public interest and indeed that it is an important policy objective which is supported by

a body of legislation and overseen by the Crofting Commission. That there is a particular

public interest in registration is demonstrated by the terms of section 7 of the 2010 Act,

requiring, as it does, that applications for registration be first submitted to the Commission

and allowing, as it does, the Commission to refuse to forward an application to the Keeper if

it includes “a material inaccuracy”. The potential for registration to subvert what must be

regarded as the public interest was illustrated by two instances which were brought to our

attention. The first was noted by the Land Court at paragraph [24] of its Note. The Land

Court posited a case where part of a croft had substantial development value and where, on

an application for first registration, the tenant, in collusion with his landlord,

misrepresented the extent of the croft land by failing to include that part with development

value with a view to it, ex facie of the register, appearing not to be included in the croft and

therefore available for sale free from crofting tenure. The second instance was advanced by

the appellant and was of registration (or perhaps more than one registration) designed to

secure an exchange of part of a croft between crofters, something that was specifically

prohibited by section 4A of the 1993 Act.

Page 25 ⇓

[41] However, to recognise that there are public as well as private interests in play when

an application is made for the first registration of a croft and that there may be scope for

reliance on these public interests when a challenge is made to a first registration by a person

who is entitled to apply for an order under section 14(4)(a) or (b) of the 2010 Act, does not

assist the appellant with his contention that he should be regarded as a “person… aggrieved

by the registration of the croft.” As appears from the language of the statute, read in context,

and the authorities to which we have referred, to be aggrieved by, for example, an act such

as the making of an entry in a register of title, a person’s private interests must be adversely

affected. It is not enough in order to justify ones position to claim to be a guardian of the

public interest. In the scheme for registration in the Crofting Register it would appear that

that role is intended to be played by the Commission.

[42] I accordingly propose to your Lordships that the court answer the question in the

special case in the negative.

[43] I further propose that we reserve all questions of expenses.

Postscript

[44] As I have observed above, whereas in his draft statement of case the appellant

proposed seven questions for the opinion of this court, the Land Court considered that the

question of law arising could effectively be stated in one question. That is the question that

it stated and that is the question that I propose should be answered. I do not see that

proceeding in this way has given rise to any difficulty but, as appears from paragraphs [41]

to [44] of the special case, the Land Court has thought it appropriate to justify its decision

not simply to adopt the appellant’s questions. It draws attention to rule 86 of the 2014 Rules

(Finalisation of special case) and section 1(7) of the 1993 Act, noting that perhaps in

Page 26 ⇓

deference to the terms of section 1(7), the Land Court, under its immediate past and present

Chairman, habitually has proceeded upon the basis that it is for the party who has requested

the special case to formulate the questions that he or she seeks to have answered, and that he

or she is entitled to do so in any way that he or she sees fit, subject only to “tidying up” by

the Court of perceived infelicities of grammar or style.

[45] I would see that as an overly modest characterisation of the proper function of the

Land Court when finalising a special case in terms of rule 86, and while I would be slow to

comment adversely on the practice and procedure which another court has found to be

satisfactory, the stating of a special case to the Inner House of the Court of Session is a

matter in which this court has an obvious interest. The interest is in having a document

which best formulates the issues which arose before the Land Court, includes all material

necessary for an understanding of these issues set out in a logical and accessible manner,

excludes all unnecessary material, and sharply focusses the questions on which an opinion is

required. A party may be able to produce such a document as his draft special case; he may

not. It is a task which requires skills of quite a high order. It is a task for which the Land

Court, with all its particular experience and having conducted the proceedings in which the

question of law has arisen, is well fitted.

[46] The statutory basis for an appeal by way of special case on a point of law is, as has

already been noted, section 1(7) of the 1993 Act. In so far as relevant the subsection

provides:

“The Land Court may, if it thinks fit, and shall, on the request of any party, state a

special case on any question of law arising in any proceedings pending before it

under any enactment …for the opinion of the Inner House of the Court of Session,

which is hereby authorised finally to determine that question.”

Page 27 ⇓

Thus, while the Land Court must state a special case on being requested to do so, the

responsibility for doing so and by implication the way it does so is for the Court. That

responsibility includes identifying whether a question of law does indeed arise and what

that question is. This is not to ignore that parties too have responsibilities and also rights, in

that a request to state a case is the route for what is effectively the only appeal to another

court. The procedure for stating a case is set out in rules 83 to 87 of the 2014 Rules. It

provides for collaboration between parties and the Court. Rule 83 provides that a party who

intends to require the Court to state a special case must notify the Principal Clerk of the

Court of his request within 4 weeks of a decision being intimated to him. Where the

decision is not final there is provision for determination whether fulfilment of the

requirement should be deferred. Any notification under rule 83 must be accompanied by a

draft statement of case. Thus initial responsibility for drafting the special case lies with the

party making the requisition. The draft is clearly important; it is the mechanism whereby a

party apprises the Land Court of the point he wishes to take and it is the means by which he

can lay out a structure upon which he would propose to put that point to the Inner House.

Rule 84 requires it to identify: the decision in question; whether it adequately sets out any

findings in fact necessary for determination of the proposed question of law and, if not,

what findings the Court is required to make; in what respect the decision is erroneous in

law; the question of law proposed to be submitted to the Court of Session; and any interim

orders that are requested pending determination of the special case. Rule 85 provides for

other parties to make their responses to the draft by way of note. Rule 86 requires the Court

then to settle the terms of the special case after giving such opportunity for further comment

and adjustment by the party giving notification under rule 83 as it thinks fit.

Page 28 ⇓

[47] There can be no doubt that in settling a special case the Land Court must consider

and seek to reflect the draft, the rule 85 responses and any further comment and adjustment

by the party giving notification under rule 83, however it is for the Court alone to settle and

then state the special case. In doing so it has a specific responsibility to satisfy itself that the

facts set out in the case accurately reflect the findings of the Court (rule 86(2)) and it has

power to make such changes to the wording of the special case as it considers appropriate

for clarifying or explaining any matter (rule 86(3)). I see no reason why the Land Court

should in any way be diffident in discharging its responsibilities and exercising its powers

with a view to stating a special case in what it sees to be the optimum form.

Page 29 ⇓

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Menzies

Lord Brodie

Lord Glennie

OPINION OF LORD GLENNIE

[2018] CSIH 50

XA70/17

in the Special Case stated by

THE SCOTTISH LAND COURT

for the Opinion of

THE INNER HOUSE OF THE COURT OF SESSION

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

at the request of

JOHN MACAULAY

Applicant and appellant

In his application for an order under section 14(4)(b) of the Crofting Reform (Scotland) Act

2010 modifying the entry in the Crofting Register in respect of the croft at 1A Tolsta

Chaolais, Isle of Lewis

against

MRS MARY ANN MORRISON

and

Respondent

MARK TAYBURN

Interested party and respondent

Applicant and Appellant: Party

Interested Party and Respondent: Murray; Turcan Connell

Page 30 ⇓

17 July 2018

[48] I agree with Lord Brodie that the question in the special case should be answered in

the negative, and that for the reasons given by him in his Opinion. I also agree with his

observations in the Postscript to his Opinion. I wish to comment on one matter only.

[49] In paragraphs [40] and [41] of his Opinion, Lord Brodie discusses the potential for

the public policy in favour of maintaining land under crofting tenure to be subverted by an

inaccurate registration in the Crofting Register. He gives two examples. One will suffice for

present purposes. Imagine that a tenant of crofted land wishes to exploit an opportunity for

commercial development on part of it, which he will be unable to do while the land remains

crofted. Imagine too that, to that end, in collusion with his landlord, he deliberately

misrepresents the extent of the croft land by failing to include that particular part of it in the

application for first registration on the Crofting Register, thereby on the face of the Register

excluding that land from the croft and making it potentially available for commercial

development. Such a situation would clearly engage the public interest. Yet, even in that

situation, Lord Brodie would say, as I understand it, that the only persons entitled to

challenge the (wrongful) registration would be those to whom notice was required to be

given under section 12(1) of the 2010 Act or another person, if any, who could claim to be

“otherwise … aggrieved” in terms of section 14(1) in the sense that his private interests were

adversely affected by it. It would not be enough for an individual to claim to be a “guardian

of the public interest”. That would not give him a right to be heard unless he could show

that his private interests were adversely affected. For my part I do not think that the

position is as clear as this. The point does not arise for decision in this case, and it was not

argued before us, but it seems to me that there may be an argument that in exceptional

circumstances of this kind a person might be able to claim to be “otherwise … aggrieved”,

Page 31 ⇓

and therefore entitled to make an application under section 14(1) of the 2010 Act, even

though his private interests were not directly affected and even though he has no greater

interest than any other member of the public: c.f. Walton v Scottish Ministers 2013 SC (UKSC)

67 per Lord Reed at para 94 and per Lord Hope at paras 151-153. I recognise that Walton

was an Aarhus Convention case and that those remarks were made in the course of

considering what gave an individual “standing” to invoke the supervisory jurisdiction of the

court; but that approach is potentially transferable to the question of whether a person is

“otherwise … aggrieved” within the meaning of the relevant legislation. That does not open

the door to all and sundry, to busybodies wishing to interfere in other people’s affairs. As

Lord Reed points out, the question must ultimately be decided in each case according to the

nature and importance of the issues raised and the circumstances in which the individual

seeks to intervene. Those circumstances might include a consideration of who else might be

in a position to bring the matter before the court – and I note Lord Brodie’s reference in this

context to the role intended to be played by the Crofting Commission – and the reasons for

them not having done so. No doubt there are other considerations which may apply in any

particular case. One can posit various factual situations which might render the argument

more or less compelling. What if all those with an interest in any adjacent croft, and

therefore entitled to notice under section 12(1), were induced by the prospect of financial

reward (maybe a stake in the intended development) not to challenge the inaccurate

registration? As I have said, the point does not arise for decision of the present case. No

public interest point of that kind arises here. It is sufficient for my purposes to observe that

there might be arguments capable of being deployed on either side in a case where the point

does arise.