MacFarlane (St Helier) Corporation v Marie MacInnes and Others [2024] SLC 12
Stephanie Hepburn acted for MacFarlane (St Helier) Corporation in a successful application to the Land Court for declarator that an area of land on Strollamus Estate in Luib, Skye, was not subject to crofting tenure and thus the provisions of the Crofters (Scotland) Act 1993.
A number of crofters objected to the application. However, as the objections asserted that the land in question formed part of a third party’s croft (who did not oppose the application), the Land Court found that none of the crofters had the requisite title or interest to challenge the application. As a result, it was treated as unopposed.
The Land Court still needed to determine the application on its merits. The Court acknowledged that it is unusual for an applicant in a court process to bear the burden of proving negative – that the land was not part of a croft or common grazings (whether apportioned or not).
The Court considered the extensive investigations that had been carried out by both parties and found that the evidence submitted by the crofters provided only a very slight basis to rebut the inference that the land is not subject to crofting tenure.
The Court did not find that evidence persuasive and the application was accordingly granted.
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