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Cite as: [2004] ScotCS 150

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MacDonald v. West Minch Salmon Ltd & Anor [2004] ScotCS 150 (25 June 2004)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Penrose

Lord Abernethy

Lord McCluskey

 

 

 

 

 

XA1/04

OPINION OF THE COURT

delivered by LORD PENROSE

in

SPECIAL CASE

by

THE SCOTTISH LAND COURT for THE COURT OF SESSION

in the cause

MRS DOLINA MacDONALD

Applicant;

against

WEST MINCH SALMON LIMITED

First Respondents;

and

SOUTH UIST ESTATES LIMITED

Second Respondents:

_______

 

 

Act: Barclay; Drummond Miller, W.S. (Applicant)

Alt: Sir Crispin Agnew, Q.C.; Turcan Connell (First and Second Respondents)

25 June 2004

[1]     The applicant, Mrs MacDonald, is tenant of a croft situated at Uiskevagh, Benbecula. Part of the croft lies between the head of an inlet of Loch Meanarbhagh and a public road. There is an access road that runs across the croft between the public road and the shore of the Loch. The landlords of the croft, South Uist Estates Limited, ("South Uist Estates"), granted West Minch Salmon Limited, ("West Minch"), rights of access and egress over the access road, and the right to use a jetty constructed on part of the shore comprised in the estate, in connection with a fish farming business carried on by West Minch in the Loch. The grant in favour of West Minch is, as we understand the position, currently informal though a formal lease is in draft. A "rent" is payable under the agreement.

[2]    
West Minch lease rights to anchor salmon cages in Loch Meanarbhagh from the Crown Estates Commissioners. South Uist Estates are not parties to that transaction. West Minch are said to be "unconnected with the second respondents' estate", in the sense that, apart from the commercial transaction entered into between South Uist Estates and West Minch relating to the access road and jetty, which lies at the heart of the present dispute, there is no legally constituted connection or association between them.

[3]    
Mrs MacDonald applied to the Scottish Land Court for various declaratory orders which, singly and as a whole, challenged the right of South Uist Estates to confer rights of access and egress over croft land for the purposes of West Minch's commercial activities. The Court held Mrs MacDonald was not entitled to orders restraining the activities in question, the more material orders sought, and ordered a limited proof. In this settled special case, the Court has posed a series of questions, some on hypotheses defined in the light of disputed averments of fact in the parties' pleadings, for determination.

[4]    
Some of the questions have been superseded. At the beginning of the hearing, counsel for Mrs MacDonald, Mr Barclay, intimated that it had been decided to abandon Mrs MacDonald's contentions that the actions of South Uist Estates infringed her rights under the Human Rights Act 1998. As a result questions 4.8 to 4.10 and 4.13 do not require to be answered. We were also informed that question 4.11 would not be argued and therefore did not require to be answered. In relation to the questions that remain live, the parties lodged extensive written submissions that formed the basis of the discussion. In these circumstances there is no advantage in setting out at length parties' general arguments. The submissions can be dealt with in context of the questions that remain outstanding.

[5]     The first four questions are expressed in terms that reflect provisions of the Crofters (Scotland) Act 1993 and its predecessor, Schedule 2 paragraph 10 to the Crofters (Scotland) Act 1955. The issues that arise against the background of agreed facts can be summarised as follows:

(a) Whether South Uist Estates have an unqualified right to enter on the

croft for the purpose of opening or making a road from the public road for use as an access and egress route to and from the shore by West Minch in connection with its commercial fish farming activities?

(b) Whether South Uist Estates, assuming that they own the foreshore, have such

a right (as specified in para. (a)) that can be exercised other than by entering into a lease of the foreshore and the access road?

(c) Whether South Uist Estates have an unqualified right to authorise West Minch

to enter the croft for access to and egress from the shore with or without vehicles in connection with their commercial fish farming business? And

(d) Whether South Uist Estates, assuming that they own the foreshore, have such

a right (as specified in para. (c)) that can be exercised other than by entering into a lease of the foreshore and the access road?

It is implicit in the first two questions that the opening or making of a road entitles the landlord to allow unrestricted use of the road to all persons benefited in that respect by the landlord.

[6]    
Apart from the implication of a right to permit use of the road, the first two issues would be wholly hypothetical. Mrs MacDonald does not aver that South Uist Estates intend to enter the croft for the purpose of making a road. The access road currently in use, and intended to be used, is the existing access road. There is on the face of the record disagreement about the history of its construction, maintenance, repair and improvement over time. But there is no suggestion that it is intended to open up any road other than that presently existing and in use. If there were to be such a suggestion, the line of the road, the construction works required and the impact on the croft are among matters that might require to be considered on a sound construction of paragraph 11 (e) of Schedule 2 to the 1993 Act. It would be wholly inappropriate to express any view on such matters without a clearly focused case. If an issue relating to the construction and opening up of a new road should come before it, the Land Court will require to consider the facts brought to its attention or, in case of dispute, found by it, and resolve any legal issues in context. In the course of the debate before us, Sir Crispin Agnew, who had argued for a wide construction of sub-paragraph (e) before the Land Court, accepted that it was unnecessary to deal with the first two questions to resolve issues between the parties.

[7]    
The third and fourth questions use the language of paragraph 11(f) of Schedule 2 to the 1993 Act. They have been expressed in wide and general terms without reference to the practical context in which the dispute between the parties has arisen. In particular these questions avoid reference to the existing road, and present issues that relate to entry onto the croft generally, for the purpose of vehicular and other movements between the public road and the foreshore. As expressed the questions are again hypothetical. However, as set out in the parties' arguments, the dispute is clearly focused on the use of the existing access road and we are prepared to deal with the questions on that footing.

[8]    
The access road has existed for a considerable period. There is currently litigation in progress in the Sheriff Court in which it is contended that there is a public right of way over the road. More particularly, it is not in dispute that the road has been used in the past for access to the shore for the gathering of seaweed, and for access to the shore for conventional fishing operations. The dispute is concerned with the extent of the landlord's right of use, and of the landlord's right to authorise use by others, of the existing road. It is again a matter of agreement that the solum of the road is comprised in the croft, so that if the landlord has relevant rights in relation to the croft, those rights comprise the road as part of the croft. Further, despite the apparent difference between the parties in their written pleadings, it is agreed that the foreshore on which the jetty has been built is comprised in the titles of South Uist Estates.

[9]    
The current use of the road is said to involve heavy lorry traffic throughout the year, often over twenty-four hour periods, during which fish feed is imported, and harvested fish are exported, and other operations related to the servicing and operation of the fish farm are carried on. It is said that the traffic has damaged the road. In addition there are averments of amenity damage arising from noise and other nuisance associated with West Minch's operations. It will be necessary to return to the allegations of damage more fully later in this opinion in discussing the relevance of the applicant's averments. Generally, however, the complaint implicit in the applicant's pleadings is of an intensity of industrial use of the access road, far exceeding prior experience, which has been and continues to be destructive of the enjoyment of the croft by the crofter and her family, and which has caused Mrs MacDonald's health to suffer. Further, it is said that the use of the access road by West Minch's transport vehicles restrict Mrs MacDonald's own use of the road.

[10]    
Section 5 of the 1993 Act provides that:

"(1) Every tenancy of a croft shall be subject to the conditions set out in Schedule 2 to this Act (in this Act referred to as 'the statutory conditions')."

Schedule 2 paragraph 11 provides:

"The crofter shall permit the landlord or any person authorised by the landlord in that behalf to enter upon the croft for the purpose of exercising (subject always to the payment of such compensation as in case of dispute the Land Court may find to be reasonable in respect of any damage done or occasioned thereby) any of the following rights, and shall not obstruct the landlord or any person authorised as aforesaid in the exercise of any of such rights, that is to say -

(e) opening or making roads, fences, drains and water courses;

(f) passing and re-passing to and from the shore of the sea or any loch

with or without vehicles for the purpose of exercising any right of property or other right belonging to the landlord;"

[11]    
It is clear, in our opinion, that sub-paragraph (f) is more directly relevant to the issues between the parties than sub-paragraph (e), and that in the circumstances of this case it raises narrower issues than sub-paragraph (e). Notwithstanding the approach adopted by the Land Court, it is appropriate to discuss the third and fourth questions first, and in that context to consider some general submissions presented by Mr Barclay on behalf of Mrs MacDonald.

[12]    
Mr Barclay's argument proceeded on the basis that the rights conferred on the landlord in terms of paragraph 11 generally, and sub-paragraphs (e) and (f) in particular, were provided exclusively for the landlord's "estate purposes", and were available for exercise only where there was an identifiable estate purpose of the landlord to be served. He referred to Cameron v MacKinnon 1996 SLT (Land Ct) 4, MacAskill v Basil Baird and Sons Ltd. 1987 SLT (Land Ct) 34; Strathern v MacColl 1992 SC 339 and McEntee v Firm of MacLennan 2002 SLCR 84 in that connection.

[13]    
The Land Court took the view that observations in the earlier cases that might have had a bearing on the interpretation of paragraph 11 were obiter and that it was appropriate to approach the critical questions in this case untrammelled by reference to such previous observations. Whether that approach was sound or not, there is advantage in examining the general structure and language of the paragraph as a context in which to consider the authorities. Perhaps the first point that is observed is the variety of form and expression that the sub-paragraphs reflect. Some of the sub-paragraphs are in terms unqualified. Some of the rights recognised or conferred by paragraph 11 are expressly qualified. Paragraph (d) requires the crofter to permit the landlord to enter on the croft for cutting and taking timber or peats. But it excepts timber and other trees planted by the crofter or any of his predecessors in the tenancy. It also excepts ornamental or shelter-belt trees. And finally it is qualified by the exception of such peats as may be required for the use of the croft. In this last respect, the provision recognises a particular risk of conflict of interest between landlord and crofter and deals with it by providing priority for the crofter's right to take peats for the purposes of the croft. In the case of paragraph (c), the crofter must permit the landlord to enter on the croft for the use, for estate purposes, of spring water not required for croft use. There are, in that case, two qualifying conditions affecting the landlord's rights: (a) the priority of the crofter's right to use spring water for the purposes of the croft, and (b) the stipulation that the landlord's use be for an estate purpose. Sub-paragraph (f), as already noted, is qualified by reference to the exercise of a right of property or other right belonging to the landlord. At first glance it appears somewhat unlikely that all of the sub-paragraphs should be considered to share a common qualification, relating to estate use or the interest of the landlord as owner of the estate, by implication when Parliament has been at pains to define specific qualifications particularly adapted to the requirements of individual provisions.

[14]    
But Mr Barclay submitted that the words "in that behalf" qualified the landlord's right to authorise third party exercise of the specified rights. The way the qualification was expressed changed in the course of debate, but the essence of the submission was that the landlord's right had to be exercised in the pursuit of his own interests as landlord of the crofting estate, or for an estate purpose. Thus, permitting West Minch to use the access road for transport of men and materials to and from the jetty was excluded because the commercial fish operations, conducted in terms of a grant by the Crown Estates Commissioners and not South Uist Estates, could never be in the interests of the landlord's estate. That estate did not, and by definition could not, incorporate rights that West Minch derived from the Crown. In our opinion, whatever limitation or restriction one might derive from the language of the provisions as a whole, there is no support for the applicant's approach to be found in the words "in that behalf". As a matter of language, the expression qualifies the word "authorised", not the words "the landlord". The later words "authorised as aforesaid" in relation to the exercise of any of the rights refers back to the earlier part of the provision. In our opinion the Land Court correctly identified the meaning of the expression as referring to authorisation by the landlord of a third party to exercise a particular power or right. In less archaic language, one might construe the provision as meaning that the crofter was obliged to permit entry onto the croft to any person having the authority of the landlord to exercise some specified right of the landlord recognised in or provided by paragraph 11.

[15]    
More generally, Mr Barclay contended that there was a restriction of the landlord's exercise of the specified rights that arose from the landlord - crofter relationship. In this respect he differentiated among the provisions of paragraph 11. Thus, he acknowledged that in Strathern v MacColl it had been decided that in the case of sub-paragraph (b) the right conferred on the landlord was unlimited except to the extent that the right had to be exercised in such a way as to allow crofting tenure to be maintained, and that a purpose of commercial exploitation was not an obstacle to exercise of the right. However, he argued that in sub-paragraphs (a) and (b) one had examples of rights relating to pertinents of ownership that were never included in the croft. In common with other agricultural tenancies minerals were reserved. On the other hand the road was comprised in the let subjects. He compared MacAskill v Basil Baird & Sons Ltd, where it was held that the landlord's right of extraction of peats was limited to estate purposes only, and Cameron v MacKinnon where the opinion was expressed that the rights conferred by paragraph 11 were intended to benefit the landlord in his capacity as owner of the estate, and were not to be exercised for public purposes. Cameron v MacKinnon was concerned with sub-paragraph (e).

[16]    
The argument that sub-paragraphs (a) and (b) permit or recognise unrestricted rights of use, for whatever reason, but that paragraphs (d) and (e) permit or recognise rights of use restricted to uses that benefit the estate of the landlord, is destructive of the notion that there is a general qualification of the landlord's rights of the kind implied in Mr Barclay's argument, and would undermine his contention that the several provisions of the paragraph fell to be construed in accordance with the rule of construction noscitur a sociis. Provisions that are inherently dissimilar cannot readily give rise to an inference that depends on an assumption that they share common fundamental characteristics. However, it appears to us that the plain terms of the provision demonstrate that such limitations and qualifications on the landlord's rights as were intended are expressed in the several sub-paragraphs and that generally there is no room for implication of further or other limitations and qualifications beyond those implied by general law as inherent in the contractual relationship between the parties. So, sub-paragraph (c) deals with the drawing off of spring water rising on the croft. Without attempting to envisage all means by which such water might be taken, it is clear to anyone using the hills that it is frequently taken by gravity flow from a collection point on the surface that interrupts the passage of excess water to larger water courses and ultimately to the sea. The landlord's water course, whether open trench or pipe, providing the connection to the collection point is frequently, if not invariably, a fixed line capable of drawing water off continuously, if the supply is sufficient. The two qualifications on the landlord's use impose quantitative restrictions on what the landlord may take, one relating to the protection of the crofting operation, and the other relating to the legitimate purposes for which the landlord may take water. The qualifications are specifically adapted to the right. One need only consider the questions that might arise whether the supply of water to a distillery or to a bottling plant were permitted to understand the practical implications of these provisions for crofter and landlord alike. Sub-paragraph (d) similarly deals with practical situations in which the interests of the landlord and crofter might come into conflict. But the approach adopted is different. The protection of the crofting interest is provided for, according to the particular case. But in other respects the landlord's right is not conditional on benefit to estate interest.

[17]    
MacAskill v Basil Baird & Sons Ltd was said to provide support for the applicant's position. That case concerned proposals for the commercial extraction of peat. The court held that large scale extraction of peat as distinct from the extraction of "peats" from peat banks was not within the right of the landlord set out in the paragraph. Whether that was a correct decision or not, as a matter of interpretation of sub-paragraph (d), the case has no bearing on the issues that arise in the present case. Mrs MacDonald's position was further supported by reference to Cameron v MacKinnon. At page 7K the court stated that:

"A consideration of the nature of the rights listed in the subparagraphs of para 11 leads us to the conclusion that they are rights which are intended to benefit the landlord in his capacity as owner of the estate of which the croft forms a part".

In the present case the full court refused to follow that approach. We consider that the court was right in the view adopted in this case. The observation in Cameron v MacKinnon was not supported by analysis of the statutory provisions or by any reasoning. It was a bald assertion of an impression formed by the court from the provisions as a whole. Given the variety of the rights conferred or recognised, and the variation in expression, there is an obvious difficulty in finding an objective basis for inference of an over-riding and unifying qualification of the landlord's rights. As noted in the decision in the present case, the Land Court had recently expressed reservations about the implication of an 'estate purpose' in relation to sub-paragraph (e).

[18]    
Sub-paragraph (f) is subject to its own particular qualifications and limitations. The words "for the purpose of exercising any right of property or other right belonging to the landlord" define those. In our opinion there is no justification for implying any further or other condition or limitation. The provision envisages the kind of situation that is identified in the pleadings in this case. Access is required to the shore of the sea or loch. The croft is adjacent to the foreshore, which is comprised in the landlord's estate. The landlord is entitled himself to enjoy access and egress over the croft land, or to authorise another to exercise such rights, for a purpose that falls within the stated qualification or limitation. The contrast between "any estate purpose" and "right of property or other right belonging to the landlord" is clearly significant in considering the scope of the provision. The latter expression may include rights of property or other rights that are not comprised in the estate: otherwise a qualification in terms "for any estate purpose" would have been appropriate. In this case, the construction and use of the jetty, would, if otherwise within the scope of the provision, be a use of certain of the landlord's property rights that were comprised within estate subjects. But there may be other rights, including personal rights conferred on or acquired by the landlord, that would not be comprised in the estate. A landlord might acquire a grant from the Crown Estates Commissioners of a licence or lease to enable the conduct of fish farming operations in the sea. A question would then arise whether the landlord could use the existing road in connection with those operations. Mr Barclay's resistance to the view that such a use would be competent was based on his contention that there was an overall limitation of estate purpose. We are of opinion that that contention was unfounded, and the qualification of use for estate purposes contended for has no basis. Absent such a qualification, we consider that there is no doubt that the landlord would be entitled to enter the croft for the purpose of passage and re-passage to and from the shore for the purpose of exercising those rights.

[19]    
Mr Barclay's next submission on this issue was based on the history and policy of the Crofting Acts. He relied on the observations of C N Johnston (later Lord Sands) in his book The Crofter's Holdings (Scotland) Acts 1886, 1887, 1888 and 1891 for the proposition that the Acts conferred rights on the crofter and on the landlord alike. The landlord's rights were not reservations such as one might expect in a conventional agricultural lease. The rights conferred by the Act on the landlord were to be viewed in context with the crofter's rights. The rights had to co-exist with the crofter's rights in marked contrast to the pre-existing situation in which the landlord had draconian powers, extending to expulsion of the crofter from the land. Read with the observations of the Land Court in Cameron v MacKinnon these observations, in Mr Barclay's submission, supported an implied limitation on the exercise of the landlord's conferred rights. They had to be exercised in such a way as to be consistent both with the landlord's status as landlord of the estate and also with the reciprocal rights of occupancy and peaceful enjoyment conferred by the Acts on the crofter. The crofter's rights were not to be put at jeopardy by the arbitrary imposition of third party commercial interests unconnected with the landlord's estate. In so far as the notions of "estate interest" and "estate purpose" are distinct, this approach suffers from the same defects as the contention that there is a limitation or qualification of use "for estate purposes". The landlord's right of exploitation of minerals, subject always to payment of appropriate compensation, is incompatible with the notion that the rights conferred or recognised in paragraph 11 have to be exercised consistently with a right of peaceful enjoyment by the crofter of the parcel of land that is for the time being subject to extractive operations. The invasive operations necessarily involved disrupt the crofter's use and enjoyment of the surface so long as they subsist.

[20]    
In this matter we prefer the approach for which Sir Crispin Agnew contended. The relationship established by the statutory conditions as between the landlord and crofter is a tenancy over the landlord's property: section 5 (1) of the 1993 Act so provides in terms. Schedule 2 contains provisions similar to terms found typically in agricultural leases. It would be inappropriate to take the comparison too far given the distinct code of statutory provisions relating to agricultural holdings. In Sutherland v Sutherland 1986 SLT (Land Ct.) 22 crofting tenure was characterised as a contract sui generis, albeit a form of leasehold tenure. In Cameron v Bank of Scotland 1989 SLT (Land Ct) 38 the common law principle of confusion applied to merge the landlord's and tenant's interests when the crofter purchased the croft. The tenancy has peculiar incidents prescribed by statute which distinguish it from other tenancies, and typical agricultural tenancies in particular. However, underlying the statutory framework is the landlord's ownership of the subjects. Except to the extent that the Act qualifies the landlord's rights as owner of the subjects, those rights subsist.

[21]    
The two relevant questions, 4.3 and 4.4, distinguish forms of authorisation generally from forms requiring the grant of a lease. At present there is no lease, but we understand that there is a draft lease that may come in time to regulate relationships between South Uist Estates and West Minch in a more formal way than the present arrangement. In our opinion there is no requirement for a lease. Sub-paragraph (f) extends to the use of rights of access and egress in pursuit of enjoyment of rights of property and other rights. It must be capable of application where the landlord's own right is from a wider class of rights than can be described as a right of property. The range of competent forms of authority conferred on third parties must be equally wide and encompass all forms of licence, formal and informal, by which a landlord can competently grant his authority to a third party to exercise commercially transmissible rights in the subjects in questions. The jetty is on the landlord's estate. South Uist Estates have authorised its use by West Minch for payment. Access over the croft road has been authorised to enable West Minch to exercise the landlord's right of property in the jetty. That is sufficient for the disposal of the relevant questions. Access to a jetty may be an end in itself. But access for a further purpose such as boarding and disembarking from boats with a view to some more remote purpose is a normal activity of the owner of a jetty. We answer question 4.3 in the affirmative and question 4.4 in the negative.

[22]    
In these circumstances, and apart from Sir Crispin's concession on the point, there is an issue whether it is appropriate to deal with questions 4.1 and 4.2. It is clearly unnecessary for the purposes of this case to answer those questions. The case can be disposed of on an application of the provision most directly related to the facts. Given the importance attached to the interpretation and application of sub-paragraph (e), one would not lightly avoid the issues raised. However, as the argument before us progressed, it became clear that a wide range of issues, some of them novel, may require to be decided on the interpretation and application of paragraph 11, and in particular sub-paragraph (e), in circumstances which the respondents in this case had in mind but which do not relate to access to the foreshore. In attempting to persuade us of the need to answer these questions, Sir Crispin told us that there are actual or potential disputes over the landlord's right to open or make roads, for example, for the purposes of access to common land where wind turbines for generating electricity may be located. It would not be appropriate to use this case to obtain decisions on issues that can and should be resolved in the factual context to which they properly relate. We were informed that the interpretation of paragraph 11 sub-paragraph (e) for which South Uist Estates contend in this case has never been subject of previous judicial decision in Scotland. Nor have counsel been able to identify relevant authorities under the Landlord and Tenant (Ireland) Act, 1870 and the Land Law (Ireland) Act 1881 where there are similar provisions to the provisions of paragraph 11 of the 1993 Act. Section 5 of the 1881 Act in particular has a similar structure. This is not an occasion for gratuitous observations on what may become a matter of importance in a wide range of circumstances that cannot properly be envisaged without factual findings. We shall therefore refuse to answer questions 4.1 and 4.2.

[23]    
In doing so, it is right to note that a substantial part of the argument was focused on sub-paragraph (e) and on observations of the Land Court on its interpretation and application. The Court, in the present case, discussed the development of law and practice in relation to sub-paragraph (e) at some length. We shall deal with some aspects of the issues that arise in relation to question 4.5 so far as it relates to sub-paragraph (f) which is the only aspect of that question that requires to be considered in this case. It would be particularly inappropriate to comment on the developing views on the scope and application of sub-paragraph (e) as reflected, in particular, in McEntee v Firm of MacLennan 2002 SLCR 84.

[24]    
In relation to question 4.5. Mr Barclay argued that the landlord's rights had to be exercised reasonably. This amounted to a bold attempt to persuade the court to re-introduce a test that had been superseded. The Land Court in the present case note that decisions such as Nicholson v Sinclair 1968 SLCR App 121 illustrated an approach of the Land Court that assumed jurisdiction to apply paragraph 11 and its predecessors according to a test of reasonableness of the landlord's proposed exercise of his rights. However, in our view the case did not illustrate the application of a test that restricted the landlord to doing what was found to be reasonable. The observation was that the Land Court "would only be justified in refusing the Applicant declarator if his proposal regarding a road was quite unreasonable". However, whatever the observations of the Land Court from time to time, Mr Barclay's submission cannot be supported having regard to Cameron v MacKinnon and the decision of this Court in Strathern v MacColl. In the latter case the restrictions on the landlord's right to extract minerals were in issue. It was held that if the landlord's purported exercise of the rights conferred by paragraph 11 would render the croft incapable of crofting tenure that exercise would be illegal. Subject to that the rights conferred in relation to mineral extraction were unlimited. In Cameron v MacKinnon the full court held that the divisional court's application of a test of reasonableness in a case arising under sub-paragraph (e) was wrong. That decision appears to us to have followed inevitably from Strathern v MacColl. The landlord's rights are not constrained by a test of reasonableness. It cannot sensibly be suggested in this case that the landlord's exercise of rights under paragraph 11(f) in relation to the access road has rendered or would render the croft incapable of crofting tenure. In our opinion, Paragraph 11(f) permits South Uist Estates to authorise West Minch's operations in this case.

[25]    
The applicant's written argument did not include full submissions relating to question 4.6. Mr Barclay's oral submissions went no further than to state that the powers conferred on the Land Court by section 53 of the 1993 Act were sufficiently wide to entitle the court to regulate the extent of user of the landlord's statutory rights where the extent and manner of the use contemplated impinged on the crofter's use and enjoyment of the croft. In relation to sub-paragraph (f) of paragraph 11, this contention appeared to assume that whatever the interpretation of the particular provision, the Land Court had a wide discretionary power to regulate user. This contention is without merit. It may underlie some of the practices of the Land Court in the past, and may have been reflected in the imposition of a general test of reasonableness in assessing the impact of the landlord's proposals. But there is no basis for it in the statute. The Court's jurisdiction is to decide cases according to law in the circumstances it finds. It cannot create limitations that Parliament has avoided imposing on the landlord.

[26]    
Question 4.7 has to be approached in the light of the applicant's averments. The Land Court remitted to proof certain of the averments of damage and excluded others. The general proposition that the landlords are liable for compensation for damage already suffered was remitted to probation. The Court excluded from probation the applicant's reference to damage that she "will continue to suffer". This was based on the view that the reference to "any damage done or occasioned" by the exercise of the landlord's rights looked only to past or existing damage: Crofters sharing in Keil Common Grazings v MacColl 1986 SLCR 142. The Court's practice was to reserve to parties the right to re-apply for any further order that might be necessary: Hitchcock v Tenants of Northton 1942 SLCR 13. There is a risk that attempting to confine a right to compensation within inflexible rules may defeat the object of the statute in some cases. While it may currently be fanciful to think in terms of a crop that depended on "terroir" in a typical croft, it cannot be beyond possibility that a crofter may develop a horticultural or agricultural operation so dependent on the characteristics of the area that the extraction of minerals would destroy the operation permanently and beyond restoration even following the reinstatement of the surface. In some cases a reduction in rent at the following review may be or form part of the solution to the crofter's claims, as in Lentran Estates Ltd v MacMillan 1957 SLCR App 94. But it might not compensate if the total rent were insufficient to reflect the economic damage suffered by the tenant. However, in most cases of user of the surface the exercise of the landlord's rights may indeed be temporary and, so far as sustained, capable of being reflected in an adjustment of rent. In this case the damage is related to an operation that can be modified in respect of location and intensity. A different access route across the croft might be selected. The operations of West Minch might be adjusted. Having regard to the averments in this case, we consider that the Land Court were right in excluding from probation the averments of potential future damage.

[27]    
The Land Court excluded from probation all averments of damage said to have arisen from operations at the jetty and off-shore. In that respect we consider that the decision was clearly correct, as Sir Crispin argued. Compensation is due, if at all, for damage done or occasioned by the exercise of the landlord's right of entry to the croft for any of the specified purposes. Activities off-croft are not regulated by paragraph 11 in any respect. If loss or damage is suffered as a result of off-croft activities the tenant's remedy depends on general law and would depend on averments of negligence or nuisance in ordinary litigation. In this case the averments include averments of "damage" caused by West Minch's operations at the salmon nets, off-shore and beyond the limits of the landlord's estate, as well as operations at the jetty.

[28]    
The applicant's averments of damage include averments relating to the use of the road. In particular it is said that the manner of use of the road

"and the noise and disruption caused when the fish farming operations are in progress have considerably undermined the amenity and value of the Applicant's croft and croft house".

There are no averments of economic loss associated with the on-croft operations of West Minch, as there might have been had the applicant carried on a bed and breakfast business that was disrupted. One is concerned with loss of amenity associated with the intensity of use of the road by heavy transport vehicles. The Land Court excluded these averments on the ground that the provision was confined to physical harm to inanimate objects, and, in context, to physical damage to the croft.

[29]    
The court took comfort for its views by reference inter alia to the fact that at common law liability to pay compensation is usually based on fault. In our view the common law liability for damages on proof of fault does not provide an appropriate basis for comparison. A closer analogy might be found in provisions for compensation for the exercise of statutory powers, for example of compulsory purchase, or encroachment, on payment of compensation. However, inferences drawn by analogy from other areas of law are likely to be misleading. The landlord is obliged to compensate the tenant for the impact on the tenant of damage caused by the exercise of the rights in the circumstances that arise. That will vary according to the right that is exercised. The right to take spring water in terms of subparagraph (c) might be thought to be inherently incapable of giving rise to a claim for compensation since the crofter's rights are preserved in a valid exercise of that right. Compensation for ancillary damage caused by opening water courses in terms of subparagraph (e) might require to be assessed. In that event the making of the water course might cause permanent damage that might or might not be compensated for the future following the next rent review. In this case, compensation may be claimed for the exercise of a right of use of a road. But such use may vary in intensity and result. It may diminish or cease altogether. The adverse impact of noisy operations on a crofter's bed and breakfast operations may have to be assessed as it emerges rather than once and for all as civil damages would be assessed for a given breach of a civil obligation.

[30]    
We reserve our opinion on the admissibility of claims for compensation for economic damage to the crofter's interests where there is no physical damage to the croft subjects. That issue would best be resolved in a case that involved some economic activity that provided a focus for it. The crofter has a wider scope for non-agricultural activities than a tenant under an agricultural lease would have: Gill The Law of Agricultural Holdings in Scotland paragraph 2.09. It is not possible to anticipate the circumstances in which the Land Court may require to deal with the issue of compensation for economic damage. However, it is appropriate to note that Sir Crispin did not quarrel the proposition that the crofter might recover direct economic loss arising from disruption of a permitted activity brought about by the landlord's operations. The croft, on that approach, is a productive unit that can be damaged through interference with the operations properly carried on within it even where the physical properties of the subjects are not themselves damaged. In an appropriate case there could be a live issue on the scope of the paragraph. Similarly it seems to us to be impossible to exclude the possibility that a claim for compensation might arise from an exercise of the landlord's rights that causes immediate and direct hurt to the crofter. In MacLennan v Secretary of State for Scotland 1947 SLCR 40 compensation was awarded where a pony was injured. There is a question whether that case was correctly decided. But on any view it serves as a warning against over-wide generalisations in this field. However, in the present case the only averments that fall within the scope of the provisions are those that relate to physical damage to the road and other consequences of use of the road. The Land Court excluded from probation the averment that: "The applicant is accordingly prevented from having free access to and egress from her croft and in particular the croft house" during periods of intensive use of the road by West Minch. Whether the applicant can prove that averment is irrelevant at this stage. We consider that it is a relevant averment of damage arising in a real and substantial sense from the intensity of user averred. That averment should not have been excluded from probation. On the other hand the averments of possible damage in emergencies are purely speculative and irrelevant.

[31]    
Finally the Land Court excluded from probation the applicant's averment that her essential security of tenure had been substantially prejudiced by West Minch's operations on the croft. This averment is wholly lacking in specification and fell properly to be excluded from the scope of subsequent proof. The appropriate answer to question 4.7 is that it does not arise: except to the extent that they fall properly to be remitted to probation, the averments do not arise from the exercise of rights on the croft. A more general answer would not be appropriate in this case. Question 4.12 falls to be answered in the negative. In the circumstances we shall vary the interlocutor of the Land Court to the extent of including in the averments remitted to probation the averment quoted in part in paragraph 30.


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