Macaulay v Morrison
| Jurisdiction | Scotland |
| Judgment Date | 17 July 2018 |
| Neutral Citation | [2018] CSIH 50 |
| Docket Number | No 35 |
| Date | 17 July 2018 |
| Court | Court of Session (Inner House) |
[2018] CSIH 50
Extra Division
Scottish Land Court
Arsenal Football Club Ltd v Smith (Valuation Officer) [1979] AC 1; [1977] 2 WLR 974; [1977] 2 All ER 267; 75 LGR 483; [1977] JPL 448
Attorney-General of the Gambia v N'Jie [1961] AC 617; [1961] 2 WLR 845; [1961] 2 All ER 504
AXA General Insurance Co Ltd v Lord Advocate sub nom AXA General Insurance Ltd, Petrs [2011] UKSC 46; 2012 SC (UKSC) 122; 2011 SLT 1061; [2012] 1 AC 868; [2011] 3 WLR 871; [2012] HRLR 3; [2011] UKHRR 1221; 122 BMLR 149
Buxton v Minister of Housing and Local Government [1961] 1 QB 278; [1960] 3 WLR 866; [1960] 3 All ER 408; 124 JP 489; 59 LGR 45; (1961) 12 P & CR 77
Christian Institute v Lord Advocate [2015] CSIH 64; 2016 SC 47; 2015 SLT 633; 2015 Fam LR 121
Christian Institute v Lord Advocate [2016] UKSC 51; 2017 SC (UKSC) 29; 2016 SLT 805; 2016 SCLR 448; [2016] ELR 474; [2016] HRLR 19; 19 CCL Rep 422
Conti v AIP Private Bank Ltd (formerly Ueberseebank AG) 2000 SC 240; 2000 SLT 1015; [2000] BCC 172
Cook v Southend-on-Sea Borough Council [1990] 2 QB 1; [1990] 2 WLR 61; [1990] 1 All ER 243; 154 JP 145; 88 LGR 408; 2 Admin LR 115; [1989] RVR 215; [1990] COD 120; 154 JPN 73
Lardner v Renfrew District Council 1997 SC 104; 1997 SLT 1027; 1997 SCLR 454
Nicol (D & J) v Dundee Harbour Trs 1915 SC (HL) 7; 1914 2 SLT 418; [1915] AC 550
North East Fife District Council v Secretary of State for Scotland 1992 SLT 373; 1990 SCLR 647
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Walton v Scottish Ministers [2012] UKSC 44; 2013 SC (UKSC) 67; 2012 SLT 1211; [2013] PTSR 51; [2013] 1 CMLR 28; [2013] Env LR 16; [2013] JPL 323
Flyn, D, and Graham, K, Crofting Law (2nd ed, Avizandum Publishing, Edinburgh, 2017), p 29
Oxford English Dictionary (2nd Simpson and Weiner ed, Clarendon Press, Oxford, 1989)
United Nations Economic Commission for Europe, Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (‘the Aarhus Convention’) (UNECE, Geneva, June 1998) (Online: http://www.unece.org/env/pp/treatytext.html (15 August 2018))
Crofts — Applicant challenging first registration of croft — Whether the applicant was “any person … who otherwise is aggrieved by the registration of the croft” — Crofting Reform (Scotland) Act 2010 (asp 14)
Words and phrases — “any person … otherwise … aggrieved” — Crofting Reform (Scotland) Act 2010 (asp 14), sec 14
John Macaulay challenged the first registration of a croft on the Isle of Lewis by the respondent, Mary Ann Morrison. The challenge was opposed by the respondent and by the interested party, Mark Tayburn, the crofter of an adjacent croft. A debate took place before the Scottish Land Court on 8 November 2017. On 13 March 2018, the Land Court sustained certain preliminary pleas of the interested party. The Land Court thereafter, on the application of the applicant, stated a special case for the opinion of the Inner House of the Court of Session.
The Crofting Reform (Scotland) Act 2010 (asp 14) (‘the 2010 Act’) provides for the maintenance of a public register of crofts, common grazings, and land held runrig known as the Crofting Register. Section 12 specifies that certain persons must be notified of an application for first registration of a croft. Section 14(1) provides that a challenge to the first registration of a croft can be made by any person to whom notice has been given under sec 12, or by “any person … who otherwise is aggrieved by the registration of the croft”.
The respondent registered a croft in the Crofting Register. The applicant challenged the registration, seeking to modify the entry by reference to the historical boundaries of the croft. The respondent and interested party opposed the challenge. The interested party challenged the interest of the applicant to challenge the first registration. The Scottish Land Court, after debate, dismissed the applicant's challenge, ruling that the applicant was not any of the persons specified in sec 12 of the 2010 Act, nor was he “any person … who otherwise is aggrieved by the registration of the croft” in terms of sec 14. The applicant applied to the Land Court for a special case to be stated to the Inner House of the Court of Session.
The applicant argued that: (1) the registration of the croft did not reflect the historical boundaries of the croft; (2) the applicant was someone who could objectively state that the registration of the croft did not reflect those boundaries; and (3) as a person with such an objective grievance, the applicant was a person who was “aggrieved by the registration of the croft”.
Held that: (1) to be “aggrieved” required a personal interest in the matter to which the matter complained of related, and an adverse effect on that personal interest (paras 1, 38); (2) a person's private interests had to be adversely affected before they were aggrieved by the making of an entry in a register of title, it not enough to claim to be a guardian of the public interest, that role being performed for the Crofting Register by the Crofting Commission (paras 1, 41); and question posed in the special case answered in the negative.
Observed that: (1) (per the court) it was for the Scottish Land Court alone to settle and then state the special case, that court should not 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 (paras 1, 47, 48); and (2) (per Lord Glennie) it was arguable that in an exceptional case, such as where all notified persons had a financial interest in supporting the registration complained of, that a person might be aggrieved on the basis of public interest considerations (para 49).
Lardner v Renfrew District Council 1997 SC 104, Conti v AIP Private Bank Ltd2000 SC 240, Walton v Scottish Ministers2013 SC (UKSC) 67 and Attorney-General of the Gambia v N'Jie[1961] AC 617considered.
The cause called before an Extra Division, comprising Lord Menzies, Lord Brodie, and Lord Glennie, for a hearing on the summar roll, on 26 June 2018.
At advising, on 17 July 2018—
Lord Menzies— [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.
Lord Brodie—
[2] This is an appeal by way of special case from a decision of the Scottish Land Court (SLC 119/15). 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 sec 1(7) of the Scottish Land Court Act 1993 (cap 45), rr 83 to 87 of the Rules of the Scottish Land Court 2014 (SSI 2014/229) and Pt II of ch 41 of the Rules of the Court of Session (Act of Sederunt (Rules of the Court of Session 1994) 1994 (SI 1994 No 1443 (S 69))). It is stated at the request of the applicant, Mr John Macaulay, in an application for an order under sec 14(4) of the Crofting Reform (Scotland) Act 2010 (asp 14) (‘the 2010 Act’), as amended by the Crofting (Amendment) (Scotland) Act 2013 (asp 10).
[3] The application under sec 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 sec 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 sec 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:
‘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”?’
[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, sec 3). There had previously been a Register of Crofts, maintained by the Crofters Commission, initially in terms of sec 3(2) of the Crofters (Scotland) Act 1961 (9 & 10 Eliz 2 cap 58) and latterly in terms of sec 41 of the Crofters (Scotland) Act 1993 (cap 44). 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, p 29); 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...
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