Challenge to registration of croft rejected as applicant was not a person ‘aggrieved’

Appeal judges have upheld a Scottish Land Court ruling to dismiss an application seeking to challenge the registration of a croft on the basis that the applicant failed to show “sufficient interest”.

 

The Inner House of the Court of Session refused an appeal against the Land Court’s decision that the applicant had not been “aggrieved” by the registration of the croft.

 

 

Lord Menzies, Lord Brodie and Lord Glennie heard that the appellant John MacAuley lodged an application under section 14(4) of the Crofting Reform (Scotland) Act 2010 to challenge to the first registration - on the application of the then tenant, the respondent Mary Ann Morrison - of the croft 1A Tolsta Chaolais on the Isle of Lewis.

 

Mr MacAuley, who assisted family members working on the croft in 1950s and whose family had the tenancy of the croft 1C Tolsta Caoloais until the 1990s, was seeking to modify the entry in the crofting register on the basis that it “did not conform to its historical state of possession” and was therefore “incorrect”.

 

Mr MacAuley, along with Mary Taylor and Ena Jess, who were the owners of the neighbouring decrofted house site and garden which formerly formed part of the croft 1B Tolsta Chaolais, lodged applications with the Land Court, but the interested party Mark Tayburn, the crofter of 1C Tolsta Caoloais, questioned the applicants’ interest.

 

Mr Tayburn lodged preliminary pleas to the effect that Mr MacAuley’s application was “incompetent” because he was not aggrieved by the registration, and that Mrs Taylor and Mrs Jess lacked “standing or interest” and were also not aggrieved by the registration.

 

In upholding the interested party’s preliminary pleas and dismissing both applications, the Land Court held that in 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, but 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.

 

 

Mr MacAuley appealed to the Court of Session, arguing that 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 could be fairly regarded as an “objective grievance”, in other words something other than a fanciful or speculative grievance.

 

It was submitted that his concern was that the registration of the croft had been “incorrect” in that it did not reflect its “proper boundaries”, which meant 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, and only basis for a “valid challenge” to a first registration was that the information submitted to the Keeper is incorrect. 

 

Accordingly, any person who can objectively articulate such a challenge should be allowed to lead evidence in its support - he knew the area well and knew exactly what should have been included and what should have been excluded. 

 

In enacting section 14(1) of the 2010 Act the Scottish Parliament had not restricted the category of those who could 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. 

 

However, 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, as he “no proprietary or financial interest” in the crofts subject to registration or in any nearby land.

 

 

Refusing the appeal, the judge observed that determining what was meant by “any person …who otherwise is aggrieved by the registration of the croft” was “an exercise in statutory interpretation”.

 

“As such,” Lord Brodie added, “the object is very 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”.

 

In a written opinion with which both Lord Menzies and Lord Glennie agreed, Lord Brodie said: “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.”