MacKenzie v Barr's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 21 May 1993 |
| Docket Number | No. 45 |
| Date | 21 May 1993 |
| Court | Court of Session (Inner House - Full Bench) |
FULL BENCH
Lord President (Hope), Lord Allanbridge, Lord Cowie, Lord McCluskey, Lord Wylie
Landlord and tenantCroftResumption of croft land"Croft land"ValuationWhether market value of land open-market value or compulsory purchase valueWhether valuation to include value of mineralsResumption by authority possessing compulsory purchase powersWhether "acquisition" by c local authorityCrofters (Scotland) Act 1955 (3 & 4 Eliz. II, cap. 21), sec. 12 (1) and Sched. 2, para. 101Crofting Reform (Scotland) Act 1976 (cap. 21), sec. 92
Words and phrasesStatutory interpretation"Croft land""Acquisition"Crofting Reform (Scotland) Act 1976 (cap. 21), sec. 92
Landlords applied to the Land Court for an order authorising resumption of part of common grazings for the purpose of leasing the area, as part of a greater area,
to a local authority for the extraction of minerals. The application was granted with the consent of the crofters. Consideration was then given to, inter alia, the question of what share of the value of the land the crofters were entitled to receive under sec. 9 of the Crofting Reform (Scotland) Act 1976. The Land Court held: (a) that, as the local authority possessed compulsory purchase powers, sec. 9 (3) of the Act applied, the reasonable purpose for which resumption was granted being mineral extraction; and (b) (followingTrustees of the Tenth Duke of Argyll v. MacCormick, infra) that because the rent payable to the local authority was related only to the value of the minerals and nothing was included in it for any other use of the land or even its bare land value the resultant market value of the land as determined under sec. 9 (3) was nil. No share in the market value of the land was therefore payable to the crofters. The Land Court also held that, in the absence of quarrying for gravel, planning permission would have been likely to have been granted for the erection of a dwellinghouse on the site and the site had a value for that purpose of 5,000. The crofters thereafter appealed by way of a special case seeking a determination on the question whether compensation should have been assessed under sec. 9 (2) as opposed to sec. 9 (3) of the ActHeld (rev. judgment of the Land Court in part) (1) that the market value of the land resumed was to be determined by sec. 9 (2), for the "acquisition" envisaged by sec. 9 (3) was one whereby ownership of the land passed from the landlord to the authority which was not the case here, the reasonable purpose for resumption being leasing by the landlords for mineral extraction; (2) that the purpose of the expression "the land so resumed" in sec. 9(1) was to restrict the valuation to what had been resumed by the landlord which was the crofters' interest and, as the crofters had no right to search for and extract the minerals,
the mineral value of the land had to be left out of account in the assessment of the market value; and appeal allowed in partTrustees of the Tenth Duke of Argyll v. MacCormickUNK1991 S.L.T. 900 affirmed.
Opinion that "croft land" as defined by sec. 1 (3) of the Act did not apply to "land" as used in sec. 9 so that unapportioned common grazings were included in land valued for the purposes of sees. 9 and 10.
The Trustees of Miss Sara Neilson Barr applied to the Scottish Land Court for an order authorising resumption of 0.579 ha. of the common grazings of Oldshoremore under sec. 12 of the Crofters (Scotland) Act 1955. The purpose of the resumption was to lease the area, as part of a greater area, to Highland Regional Council for the purpose of extraction of gravel. With the consent of the crofters, the Land Court authorised the resumption. At advising, on 1st March 1991, the full court held that no compensation was due to the crofters in terms of sec. 12 of the Crofters (Scotland) Act 1955. The Land Court also held that the crofters were not entitled to any share in the value of the land resumed in terms of sec. 9 of the Crofting Reform (Scotland) Act 1976. In their deliberations, the Land Court found that the provisions of sec. 9 (3) of that Act applied.
The crofters, through their clerk, John Mackenzie, requested that the Land Court state a case for the opinion of the Inner House of the Court of Session, the terms of which appear adequately in the opinion of that court.
The questions of law for the crofters were in the following terms: "(1) Whether on the facts as stated, the court were correct to hold that the purpose of the resumption was for the extraction of minerals? (2) Whether on the facts as stated, the court were wrong not to hold that the purpose of the resumption was for the purpose of leasing the land, albeit the lease was for the extraction of minerals? (3) Whether on the facts as stated, the court were correct to construe the words on acquisition by them of the land so resumed in sec. 9 (3) of the Crofting Reform (Scotland) Act 1976 to include the obtaining by Highland Regional Council of a lease of the lands for ten years with a provision for continuance of the said lease from year to year thereafter until all minerals were exhausted? (4) Whether on the facts as stated, the court were in error to find that sec. 9 (2) of the Crofting Reform (Scotland) Act 1976 did not apply to the share in the value payable to the crofters upon the authorisation of this resumption application? (5) Whether on the facts as stated, the court were correct to hold that sec. 9 (3) of the Crofting Reform (Scotland) Act 1976 applied to the share in the value payable to the crofters upon the authorisation of this resumption application?"
The questions of law (as amended at the bar) for the Land Court were in the following terms: "(6) In the event of your Lordships' court finding that sec. 9 (3) rather than sec. 9 (2) of the Crofting Reform (Scotland) Act 1976 applies to the said valuation, (a) whether the court were correct in finding that the consequent valuation was nil? or (b) should they have held that despite the decision in Duke of Argyll's Trs., the crofters were entitled to share in the value of the land for gravel extraction? or (c) should they have held that they were entitled to share in its value as a potential house site in the absence of mineral working? or (d) in any event, where sec. 9 (3) of the Crofting Reform (Scotland) Act 1976 applies for the purpose of calculating the crofters' share in the value of the land resumed, whether the decision in Duke of Argyll's Trs. was correct. (7) In the event, however, of your Lordships' court finding that sec. 9 (2) of the Crofting Reform (Scotland) Act 1976 applies for the purpose of calculating the crofters' share in the value of the land resumed, whether the decision of the majority of the Second Division inDuke of Argyll's Trs. was correct having regard to the provisions of sec. 12 (4) of the Crofters (Scotland) Act 1955,asamendedbypara. 11 (b) of the First Schedule to the Crofters (Scotland) Act 1961?"
The cause called before the First Division on 15th October 1991. Eo die, their Lordships continued the cause to be heard by a quorum of five judges.
The cause thereafter called before a bench of five judges, comprising the Lord President (Hope), Lord Allanbridge, Lord Cowie, Lord McCluskey and Lord Wylie, for a hearing.
At advising, on 21st May 1993, the opinion of the court was delivered by the Lord President (Hope).
Opinion of the CourtThis is a special case under sec. 25 of the Small Landholders (Scotland) Act 1911, as applied to matters requiring determination under the legislation relating to crofters by sec. 34 of the Crofters (Scotland) Act 1955. It has been stated by the Scottish Land Court at the request of the clerk to the grazings for and on behalf of the crofters having rights in the Oldshoremore common grazings with respect to an application by the trustees of Miss Sara Neilson Barr as landlords for an order authorising resumption of 0.579 ha. of the common grazings under sec. 12 of the 1955 Act.
The landlords applied for the order authorising the resumption for the purpose of leasing the area, as part of a greater area of land, to Highland Regional Council for the purpose of the extraction of gravel. The crofters having an interest in the common grazings consented to the application, and on 16th November 1988 the divisional court found that the landlords desired to resume the area for a reasonable purpose in terms of sec. 12 of the 1955 Act and authorised the resumption. The application was continued for the purpose of determining the amount of compensation payable to the crofters under sec. 12 of the 1955 Act and the share in the value of the area which the crofters might be entitled to receive in terms of sec. 9 of the Crofting Reform (Scotland) Act 1976. On 1st March 1991 the full court found that no compensation was due to the crofters in terms of sec. 12 of the 1955 Act. They also found that the crofters were not entitled to any share in the value of the land resumed in terms of sec. 9 of the 1976 Act. No question now arises in regard to the question of compensation, but questions of some difficulty and importance have been raised as regards the crofters' claim that they are entitled to a share in the value of the land resumed.
When the case first appeared on the summar roll, it was directed, for the reasons given in the opinion of the court dated 15th October 1991, that this case should be heard by a court of five judges. At that stage there was no appearance for the landlords, and concern was expressed at the absence of a contradictor to resist the arguments which counsel for the crofters wished to present. At the hearing which then took place before us both the landlords and the crofters were represented by counsel, and we are indebted to counsel on both sides for their very full and careful argument with regard to the various questions on which our opinion has been requested.
These questions fall into two distinct chapters...
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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 In The Application Under Section 20 Of The Crofters (scotland) Act 1993 By Mrs Janetta (otherwise Jetta) Sorbie Against Colin Niall Kennedy
...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 ti......