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
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Menzies,Lord Brodie |
| Judgment Date | 17 December 2015 |
| Neutral Citation | [2015] CSIH 94 |
| Date | 17 December 2015 |
| Docket Number | XA38/15 |
| Court | Court of Session |
| Published date | 17 December 2015 |
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...
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