This is an application by way of appeal against the inclusion in the valuation roll of subjects forming a deer larder at Woodend, Ardveich, Lochearnhead. It is contended that the subjects fall to be excluded from the roll in terms of Section 151 of the Local Government etc. (Scotland) Act 1994 which provides: "on and after 1st April 1995 no shootings, deer forests, fishings or fish counters shall be entered in the valuation roll."
We heard evidence and submissions in Edinburgh on 31st October 2003 when the applicants were represented by Mr Christopher Haddow QC and the respondent assessor by Mr Raymond Doherty QC. We heard evidence from Mr Michael Aldridge the Factor of the Drummond Estates and from Mr Peter Wildman, a senior Valuer in the Assessor's Department. We visited the subjects on 3 December 2003.
Reference was made to the following material:
Argyllshire Assessor v Stuart 1888 15 R 588
Assessor for Argyll v Broadlands Properties Ltd 1973 SC 152
Assessor for Lothian v Lowland Leisure Ltd 1990 SLT 353
Assessor for Tayside Joint Valuation Board v Joseph Johnston & Sons Ltd 2000 SLT 308
Cameron v Assessor for Inverness-shire 1941 SC 250
Crawfurd v Stewart (1861) 23 D 965
Duke of Montrose1863 1 MacP 1197
Independent Television Authority and BBC v Assessor for Lanarkshire 1968 S.C. 249
Leith v Leith & Others (1862) 24 D 1059
National Trust for Scotland v Assessor for Argyllshire 1939 SC 291
Stewart v Bulloch (1881) 8 R 381
Lord Clyde Stair Memorial Encyclopaedia Volume 24 - paragraphs 737, 738
Armour Valuation for Rating
Robinson The Law of Game, Salmon and Freshwater Fishing in Scotland
Rankine on Leases, 3rd Edition
Grimble: Deer Stalking and the Deer Forests of Scotland, 1901
Scrope: The Art of Deer-Stalking, 1838
Hall: The Highland Sportsman & Tourist 1885
Whitehead: Deer Stalking Grounds of Great Britain and Ireland, 1960
Whitehead: Encyclopaedia of Deer, 1993
HMSO: Report of the Departmental Committee Appointed in November 1919, 1922
The relevant statutory provisions are set out in the text.
The subjects of appeal are situated immediately to the north of the A85 where it runs in close proximity to the north shore of Loch Earn. The property itself is of steel framed construction with a concrete base. The walls are part block infill and part profile metal cladding. The roof is of plastic coated profile metal sheet. The walls are fitted with steel shutters and fine mesh providing ventilation and security. In the deer larder the screeded floor is laid to provide drainage to a central point. The walls are lined with sectional plastic sheeting. There is a cold store fitted with a metal rail and hook system for hanging and moving carcasses. The building includes a garage area with sliding doors. There is a small WC. If the larder is to remain in the Valuation Roll, parties are agreed that the appropriate figure is £2,500.
The subjects lie in an area of ground situated immediately to the west of the stalker's house. In front of the deer larder is an area of hard standing which provides ample space for use by vehicles in connection with the deer larder. The stalker is employed solely in connection with the deer management unit at Lochearnside.
Although not all deer forests have their own deer larders, such larders are a common feature and most substantial forests will have a deer larder. It is a convenient place to hold the shot carcasses securely and carry out basic preparation of the carcass for sale to a game dealer. In the past, larders would have been situated near where the deer were shot. The carcasses would be brought from the hill by ponies. Now transport is provided by four wheel-driven vehicles known as Argocats. The shot deer will be gralloched on the hill. This involves removal of the intestines. The further work carried out in the deer larder involves removal of the head, lower legs, heart and lungs. These procedures are now subject to hygiene requirements. The carcass will enter the human food chain. Various regulations govern this process. The carcass will be labelled and numbered at the deer larder. The sale of carcasses for consumption as venison makes a substantial contribution to the direct income from deer stalking.
Stalking and shooting deer as a sport is carried out exclusively on the higher hill ground. During the stalking season which runs from 1st July to 20th October, stags will be found only on the high ground. The season for hinds extends from 21st October to 16th February. Most shooting of hinds is carried out by the stalker for management purposes. Hinds will be shot on high and low ground. Most shooting is on lower ground. Hinds may be shot on the fields near the loch.
The Estate manages four separate units as deer management units. The unit known as "Lochearnside" lies to the north of Loch Earn. It rises from the loch side at 350 ft above sea level to a height of over 2000 ft in the higher ground. It is bounded on the west by Glen Beich. The east boundary lies some distance to the east of St Fillans. The boundaries are irregular. The north boundary is about half way between Loch Earn and Loch Tay. The whole Lochearnside unit extends to about 11,000 acres. Immediately to the east of the subjects lies an area of plantation bounded on its south side by Loch Earn and running along the loch. This was one of three areas sold to the Forestry Commission in the 1960s. There are two tenanted farms within the unit. The Farm of Ardveich lies immediately adjacent to the subjects on the west side. It extends to some 4000 acres. To the east of the tenanted holding of Arveich is another tenanted holding held by Mr Robert Maclarty.
To the south of Loch Earn lies a substantial unit known as Glen Artney Deer Forest. It comes close to Loch Earn at the east end and shares a boundary with the east end of the Lochearnside unit. To the south east of Glen Artney lies Dalclathic and, to the east of that, Drummond. Each unit has its own deer larder. Prior to construction of the subjects of appeal the larder used with the Lochearnside unit was at Derry. This was also situated beside the road near the loch. None of the other larders appear on the Roll. This was not a deliberate decision by the assessor and nothing turns on it.
The deer larder at Lochearnside was built solely for the benefit of Lochearnside. It is not used for the purposes of any other of the deer management units.
The lease of the farm at Ardveich is subject to the provisions of the Argicultural (Holdings) Scotland Acts. However the tenant is a limited partnership. The landlord is one of the partners. In practice the landlord will have substantial control of the lease through the partnership deed but it was not suggested that anything turned on this. The farm itself is described by reference to a plan attached to the lease.
The farm is co-extensive with the west end of the deer management unit. It shares the same west boundary as that unit where it runs up the Beich Burn for some six kilometres and then runs east to Meall Dalmh. The boundary on the eastern side curves back to the west but heads east again to a point close to the Tarken Burn where it enters the loch. This point is about two kilometres to the east of the subjects.
The boundary shown on the lease plan is delineated by a thick line and the part near Woodend Cottage is not clearly identifiable. The lease runs from 1990 and it is likely that the subjects were built on land forming part of the farm as leased. There was no evidence that the area on which it is situated had any other purpose at that time. The lease appears to include the site of the deer larder at Derry. However, it seems likely that the subjects and immediately surrounding ground are no longer treated as part of the farm although the rough wooded areas may provide winter shelter for stock. We discuss further below the detail of the physical features of the land to immediate north of the subjects in relation to the specific issue of whether the subjects are to be regarded as part of the deer forest.
We heard - and found - no evidence in relation to the physical characteristics of the in-bye land to suggest that it was anything other than a typical stock farm. It was not suggested that there were any specific characteristics designed or suitable for management of deer. We found nothing in the terms of the lease of the farm to suggest that use as a farm was to be co-extensive with use as a deer forest. However there was reserved to the landlord "the whole ground and winged game, deer, hares, rabbits and wildfowl on the Holding and the fish in the waters on, adjoining or flowing through the Holding, with the exclusive right of sporting, hunting, shooting, coursing, fishing, trapping and snaring, subject to the Tenant's right to kill rabbits and other Ground Game under the Ground Game Act 1880 as amended: And subject as aforesaid the Tenant so far as in his power shall protect the game, deer, wildfowl and fish on the Holding and prevent poachers and others from trespassing thereon and in the plantations and shall immediately give notice of poaching, suspected poaching or trespassing to the Landlord and generally do everything reasonably necessary to assist the Landlord's gamekeepers responsible for the game on the Holding".
The tenant's obligations include an obligation to keep the Holding "fully stocked and equipped with his own stock and crop". The lease further provides that, "No cattle and no more than 1200 ewes and gimmers will be permitted on the recognised hill land". We did not hear evidence of what the tenant regarded as hill land but following our inspection we proceed on the view that the land north of the main hill dyke is the "recognised hill land". That hill dyke runs from the west to a point to the north west of the subjects. There is no dyke between the subjects and the hill land.
Mr Aldridge freely accepted that, whatever the nature of the higher ground, the predominant nature of the land adjacent to the deer larder was agricultural. He said that "invasion of deer" was a fairly permanent feature, particularly in winter. He described the cropping obligations imposed by the lease as "ludicrous". It is plain that the farm was pastoral in character and it may be that the landlord would be unable to enforce such obligations. It is sufficient to say that nothing in the written lease gave any indication that the land was to be run as a "deer forest" or that it was seen by either party as having the character of a deer forest. It imposes a typical pattern of repair and maintenance duties on the tenant.
This is not surprising. The evidence of Mr Aldridge was that the predominant sporting use of the hill ground in 1990 would be as a grouse moor. It had never appeared in any valuation roll as a "deer forest". The emergence of deer as the predominant sporting use followed the decline in grouse population. The fact that the land comprised in the farm was not regarded as a deer forest in 1990 would not, of itself, prevent that land becoming a deer forest at some point thereafter. We note, however, that there was no suggestion of physical change affecting the farm and no suggestion of any change having been made in the terms of the lease.
We heard a good deal of historical material dealing with the hunting of deer over the centuries. It was, however, not disputed that Lochearnside had never been entered as a deer forest in the Valuation Roll. Prior to 1995 it was described as a grouse moor. The historical material is, accordingly, of little direct significance. Scrope's book was published in 1838. References in it established the move from driven hunting in trees to stalking deer on open ground. The work contains descriptions of various deer forests in Scotland including a detailed description of the "Forest of Glenartney". This was used for cattle and sheep as well as deer. Grimble's work dates from 1901. It too, contains a detailed description of Glenartney. Neither work mentions "Lochearnside". However, Hall's work of 1885 contains detailed lists of deer forests and lists of the shootings in Scotland with concise descriptions of the individual subjects. His list of "the shootings" was taken from the Valuation Rolls. It included "Lochearnside" at a rent of £500. No description of the ground or nature of the game appears although many of the other properties listed did have elaborate descriptions. Clearly the list of "shootings" included deer forests and grouse moors.
Whitehead in 1960 attempted to cover all deer stalking terrain to avoid problems of definition. He said "the definition of a deer forest today is rather nebulous. Formerly a deer forest implied a tract of land that was populated by deer to the exclusion of all else ie. sheep and cattle. At present, however, there are very few deer forests that do not carry a stock of one or the other of these domestic animals on some part of the ground. It might, therefore, be logically argued that with the intrusion of sheep or cattle the ground should no longer be considered as a "deer forest". Quite apart from the fact that deer forests are the for the most part treeless, the term is an historical one, and it is nigh impossible to decide on a definition".
Hi book provides a detailed description of Glen Artney and its history. He makes no explicit reference to Lochearnside. However, he notes: "No recognised deer forests march with Glen Artney. To the north is the small, enclosed ground of Dundurn which itself was formerly part of Glen Artney Forest. On the north side of Loch Earn the area around Glen Tarchin, which includes the east side of Glen Beich, also belongs to the same estate as Glen Artney, and provides additional ground for occasional stalking".
In relation to attempts to define a deer forest the Report of the Departmental Committee on Deer Forests is of some interest. At page vi they said: "We have had some difficulty in defining the term 'deer forest'. The definition we have adopted is 'an area from which the stock of sheep or cattle has been wholly or partially removed in the interests of deer stalking, or which is derelict for want of a pastoral tenant and used for this purpose'. It is obviously difficult to draw the line between deer forests in which sheep are grazed and lightly stocked sheep farms on which stags are stocked and killed. The point at which this line is drawn does not greatly matter provided the stock is kept in view as well as the area".
Mr Haddow summarised the history of the relevant legislation. "Shootings" and "deer forests" were explicitly included in Section 42 of the Lands Valuation (Scotland) Act 1854. It was, he said, important to note that it was because of the Sporting Lands Rating (Scotland) Act 1886 that "shootings" and "deer forests" were entered separately on the Roll. They could not be unum quid with an agricultural holding. However since 1st April 1995 "shootings and deer forests" were not to be entered in the valuation roll: Section 151.
The question now was to determine what the terms covered. Mr Haddow suggested that since the decision in Johnston there had been a pattern of assessors looking for buildings to put on the Roll. He submitted that, whatever the proper approach to fishings, it was wrong to see fishings and shootings as similar. This case was, accordingly, not concerned with any recent pattern of entry on the Roll but only with the specific circumstances of the subjects. He submitted that it was either within a deer forest or fell to be regarded as a pertinent of shootings.
He addressed the question of what was meant by a "deer forest". The term was difficult to pin down exactly. Plainly there was no requirement for trees nor for any form of enclosure. It was equally clear that the simple dictionary definition, "a wild tract of land reserved for deer", was inadequate. He referred to various historical works: Scrope; Grimble; Hall; Whitehead; and the Report. There were differing descriptions over the years. There was an overlap of meaning between "deer forest" and "shootings". It was difficult to distinguish the two. He submitted that it was perfectly possible to have domestic agricultural stock within a deer forest: Report p.29; National Trust for Scotland v Assessor for Argyllshire; Armour para. 6-17 and 6-18.
Against that background it was very important to have regard to current usage. Mr Alridge had said that the unit at Lochearnside was a deer forest and he explained why. The land was similar to Glen Artney and no-one disputed that the latter was properly to be regarded as deer forest. Lochearnside is seen and used as deer forest. Accordingly on the 1939 authorities, there could have been two entries to reflect both the agricultural holding and the deer forest.
The contradicting evidence was not persuasive. The assessor was clearly feeling his way to a definition. His reference to a need for a predominance of deer was not based on any explicit authority. It was an uninformed test. He submitted that a deer forest could be an area where sheep grazed and deer were shot.
It had been explicitly accepted on behalf of the assessor that if a deer larder was physically situate within a deer forest it would be accepted as part of the deer forest and, accordingly, would not appear on the Valuation Roll. Mr Haddow submitted that on a proper view of the evidence the present deer larder was within the deer forest. He suggested that this would be confirmed on inspection. In answer to a question from the Tribunal he submitted that if the subjects were not physically within the deer forest they might nevertheless be regarded as pertinent of it. However, he considered it unnecessary to advance that as a detailed argument.
He turned to "shootings. He submitted that despite comment in the modern revisions of Armour at para. 6.19, the term "shootings" referred to a lease of corporeal property. There was no reason why it should not have a corporeal pertinent. Lochearnside was plainly now within the definition "shootings" although the shooting was almost exclusively deer. There was need for a place to put the shot product and the deer larder was, accordingly part or pertinent of the shootings. It was clear that shootings could be concurrent with grazing. It was not an incorporeal right like fishing. It was properly to be seen as a lease of heritage for a restricted purpose: Armour 6.14; Crawfurd v Stewart; Leith v Leith; Stewart v Bulloch; Rankine p.506; Duke of Montrose. The status of shootings could, accordingly, be contrasted with that of fishings. Dicta in Johnston, therefore, had no bearing.
Mr Doherty contended that even if there was a deer forest at Lochearnhead it did not extend to the deer larder. The definition contained in the Report, at page vi, could be accepted. It was plain that historically Lochearnhead was not seen as deer forest. This was clear from the study of the literature. It was not part of the established Glen Artney Deer Forest. Records from 1960 to the 1990s indicated that it was primarily a grouse moor. If it could be regarded as a deer forest it had only acquired that character in recent years. It was accepted that possibly the high ground could have the characteristic of deer forest. However, it was clear that the low ground was used for ordinary agricultural and domestic purposes. The fact that stags might come down to the loch-side in the winter did not change the character of that ground. There was nothing to suggest that stock were removed or in any way restricted on the low ground to accommodate the deer.
He submitted that the deer larder could not properly be regarded as a pertinent of a deer forest on the high ground. It was not contiguous. It was a substantial property in its own right. It would be difficult to treat it as a pertinent. It was not essential for stalking purposes. It might be useful for game dealers but it was not impossible to exercise full sporting rights without it. Many deer forests had no larders, many did not have larders adequate for modern standards. He referred to Assessor for Lothian Region v Lowland Leisure Ltd in relation to the concept of pertinent.
Turning to shootings, Mr Doherty submitted that this term did not relate to a separate corporeal tenement. Ownership of shootings could not be conveyed separately like fishings. Although it was clear that shootings could be the subject of a lease, this was simply occupation of the land for a limited purpose. For the purpose of valuation shootings were to be regarded as incorporeal. This arose from the definition in Section 42 of the 1854 Act. The authoritative passages from Armour 6-15 could be traced back to the fourth edition. This approach to "shootings" was one echoed by Lord Clyde: Stair p.438. He accepted that the passage in Armour 6-19 could not be regarded in any way authoritative - even if it was right!
It was in accordance with principle to treat shootings as an incorporeal right. If so it could not include a corporeal pertinent. The dicta in Johnston were appropriate although he recognised that fishings were to be regarded as a separate tenement.
In any event if shootings were to be regarded as corporeal the issue remained as to whether the deer larder could be seen a pertinent of them. For the same reasons as for the deer forest, he submitted that it could not be seen as a pertinent.
In response Mr Haddow emphasised that the decision in Leith was inconsistent with Lord Clyde's observations in Stair. He suggested that the matter had not been properly analysed in recent years.
We have referred above to evidence of unsuccessful attempts to obtain a workable definition of a "deer forest". It may be noted that we heard no suggestion that a "deer forest" was, at any relevant modern period, to be regarded as referring to a right distinct from the land itself: cf. Bell, Principles, para. 670. Mr Doherty was content to accept the definition proponed in the Report of 1925: "An area from which the stock of sheep or cattle has been wholly or partially removed in the interest of deer stalking, or which is derelict for want of a pastoral tenant and used for this purpose". However, we do not consider this to be entirely satisfactory. The reference in the definition to stock having been "removed" does not fit happily with a situation where use by sheep may, perhaps, be increasing from year to year but where there is an obvious deer population and established stalking value. Further, the Report was concerned with the potential for improvement of "deer forests" and it may be potentially misleading outside its own particular context. For example, although we understood Mr Haddow to refer to the category "deer forests capable of bearing a full permanent stock of sheep or cattle" as an example of how a deer forest was compatible with full stocking, the discussion under that head seems to show that the authors of the Report thought such land would cease to be a deer forest if restored to such pastoral use.
We need not attempt an exhaustive definition. It is enough to say that we are satisfied that the use of the "recognised hill land" at Lochearnside for deer stalking is now of sufficient intensity to justify the description of deer forest being applied to all or part of that hill land. We are not satisfied that the subjects are "within" the area that could be so described but consider that the particular geography requires a conclusion that they are to be seen as part of the forest.
Mr Doherty accepted that on the evidence of Mr Aldridge, the high ground at Lochearnside might properly be regarded as a deer forest. The ground in question is wild land frequented by deer and used for stalking. The level of use is demonstrated by the very existence of the new deer larder and the employment of a full time keeper. There is no doubt that deer forests of much smaller scale were formerly entered on the Roll. We think it would have been difficult for the present appellants to resist the contention that the high ground should be entered as a deer forest prior to the provisions of Section 151.
The subjects, of course, lie beside the main road. The land to the east is held by the Forestry Commission and is not said to be part of the deer forest. The relevant boundary on the west is with the inbye portion of the farm of Ardveich. The fields are walled or fenced. The tenant is obliged by his lease to maintain walls and fences in stockproof condition - such fencing need not, of course, be deer proof. Plainly the fields are used for grazing stock and are expected to be so used. There is no restriction on stocking density. The reservation of game rights in the lease was in a standard form, common to many farm lets. Plainly the fields in question are not used for deer stalking. Stalking of stags is confined to the high ground. Deer coming down to low ground in winter were referred to by Mr Aldridge as "invading". We heard that a few such animals might be culled by the keeper.
Although the farm is regarded as part of the deer management unit for Estate purposes, we heard no evidence of any practical implications of the designation. The term "deer management unit" might well be applied to a commercial deer farm managed intensively for production of venison. Although such a unit might, possibly, fall to be regarded as a deer forest this would, in our view, require consideration of its whole characteristics rather than simple reference to the presence of deer.
We are satisfied that a sporting element is critical to the concept of a deer forest. As Rankine observes, p. 503: "A forest frequented in the shooting season not by stags but only by hinds is not a deer forest in the only sense in which the term could properly be used in an advertisement". There was no suggestion in the evidence that the inbye lands of Ardveich were used for sporting purposes in connection with deer. Without attempting precise definition it can be said that we would be surprised to find that land which formed the core part of a full agricultural lease was also capable of being regarded as deer forest.
Although the subjects are thus bounded on east, west and south by lands which are not deer forest, the land immediately to the north is rough steep woodland broken by the track formed by the line of the old railway. We accept that the land to north of the track can be taken to be part of the deer forest. There was nothing in the evidence to distinguish it from the "high ground" to the north.
Although not satisfied that the subjects can properly be described as lying "within" a deer forest" as was contended by the applicants, it is clear that but they lie in very close proximity to the land we accept as deer forest. With some hesitation we have concluded that they can properly be described as contiguous although the land between the larder itself and the defined boundary of the hill land is indeterminate in character.
Part of our hesitation arose from the existence of the former railway fence to the north of the track. It forms a continuation of the hill dyke. It would be no barrier to deer. Indeed we saw evidence of the recent presence of deer on the track. However, it is a barrier to vehicular traffic. For practical purposes access from the subjects to the stalking ground is taken by using the main road and the hill track running past the farm house at Ardveich. There is a more direct route by a track which starts beside the larder but this leads on to the railway track where it runs through inbye land before meeting the hill track. There is also an access passage under the railway track. This is overgrown and disused but it leads to a gate opening on to the hill.
The subjects themselves could not be described as "deer forest" in any primary sense but we attach considerable importance to the assessor's concession that they would fall to be treated as such if they were within a recognised deer forest. In short, they are recognised as being of a nature which would allow them to be treated as a part of such forest. In conveyancing terms, the expression "part and pertinent" is apt to justify inclusion of this type of subject with lands described as deer forest.
The question then is whether there is a significant distinction between subjects falling physically "within" an area of deer forest, properly so called, and subjects such as the present which might be described as physically "added on". We are satisfied that there is no realistic distinction to be drawn. If, for whatever reason, the larder had been built to north of the fence - in other words "within" what we accept as deer forest - the convenient access for stalking would still involve either the main road or the old railway track running some distance through inbye ground. It makes sense to have the larder as near ordinary transport routes as possible. Larders can be expected to be at, or near, the edge of the forest. We are aware of no basis requiring strict insistence on "within" as a criterion.
There is no doubt about the practical connection between use of the subjects as a deer larder and the use of the hill land as a deer forest. We are satisfied that because of the very close physical connection, the subjects can properly be described as "part or pertinent" of the deer forest. They fall to be treated as deer forest for the purposes of section 151 in the same way as they would if situated within the forest.
That finding is sufficient for disposal of the appeal. However, it is appropriate to deal shortly with the alternative submission that the subjects should be regarded as a pertinent of "shootings".
We are not persuaded that the deer larder is a pertinent of any "shootings" at Lochearnside. The applicants' submissions tended to suggest that this turned on the question of whether shootings were to be seen as a corporeal or incorporeal right. We understood it to be conceded that if "shootings" are an incorporeal concept, the effect of the decision in Johnston was that they could not have a corporeal pertinent. However, we accept that analyses appropriate to "fishings" are not necessarily appropriate to "shootings". The fundamental question is whether or not use of the subjects in this case could be regarded as covered by rights embraced by the term "shootings" in section 151. It was accepted that if the concept of "shootings" was a corporeal one, it did not necessarily carry the deer larder. But conversely even if the concept is to be described as "incorporeal" we are not satisfied that this necessarily excludes the deer larder. It is plain that the shooting can only be defined by reference to land - in the widest sense - and by reference to the extent of rights in such land.
We did not understand Mr Haddow to suggest that the term "shootings" referred directly to a physical asset. The word may occasionally be used casually to refer to an area of land but such imprecise usage has no bearing on use in the present context. For completeness it may be noted that Hall's list of "shootings" while capable of being understood to refer to physical subjects, in fact included only "shootings" which were regularly let. They were all subjects which could be defined by reference to limited rights granted in respect of use of land. The provisions of Section 6 of the 1886 Act reflect the distinction. The section provided for the assessor to enter separately the yearly value "of the shootings over the lands and of the deer forests". The clear contrast is between the identified physical subjects and the "shootings" which are not the lands but something - rights - exercised over the lands.
Rankine at p. 503, discusses the right to kill and take game as taking one of three forms. "It may be a lease of land out and out, the known use intended by both parties being only or mainly the harbouring or sustenance of game, such as deer". At the other extreme are purely personal rights. Between these extremes is the game lease proper. There would be no exclusive possession of the corporeal subject. The lease would give an exclusive right to "the shootings on the Estate of X". "Considerable controversy has raged round the question of whether the leading right thus granted out is to be regarded as the delegation, assignation or communication of a personal privilege incident to the ownership of land, yet communicable by the owner to others; or as right of occupation of land for a particular purpose, limited no doubt but no more so in essence than the right of a farming tenant to possess for the purposes of agriculture": page 504. In further discussion of the point the author refers to the fact that in some cases buildings were let along with the sporting rights but "in principle the circumstance is of no relevance, since the incorporeal right was in each case the principal right, and the other merely accessory". The controversy does not turn on whether the rights are to be seen as corporeal or incorporeal. The controversial question is whether the right is a right of occupation of land as opposed to a mere personal licence of some sort.
It seems plain that the term "shootings" is applied to the right as opposed to the land itself and this is confirmed by the nature of the discussion in both Leith v Leith and Stewart v Bulloch. The passage cited from the latter by Rankine at p. 505 is in the following terms: "If, indeed, it were the law that a right of shootings was a mere personal franchise … there would be a great deal to be said against the application of the words of the statute [1469, c.36] to a lease of shootings; but I think it has now been laid down in series of decisions that this is not the nature of a right of shootings, but that what the tenant receives under such a lease is a right of occupation of land, as much as in the case of an agricultural tenant".
"Shootings" can accordingly be understood as referring to the right of occupancy of land for the limited purpose of exercising a right to kill and take game or other wild animals. We did not hear any analysis of the essential characteristics of corporeal and incorporeal rights. The distinction may have little juridical significance except in relation to full rights of ownership. The land can of course be described as "corporeal" but that would not make the lease a "corporeal right".
Acceptance of the term "shootings" as applying to a lease of land for the purpose of shooting game, does not take the applicants far. Plainly the subjects could not be used for the exercise of any right to shoot. The argument, accordingly, had to be that the deer larder was a pertinent rather than an integral part of any shootings. But the material relied upon as clarifying the nature of the rights involved in the concept of "shooting" gave no support to the proposition that these rights went beyond the right to take game. The very fact that a shooting lease may have to run along with some other more general right to use the land suggests a need to give to "shootings" only the minimum content necessary for exercise of the limited right to shoot. Further, as the term shootings could apply to a variety of different types of game, it cannot be contended that the term must inevitably carry any particular buildings.
At common law, the tenant has right to deal with the carcass: see Broadlands Properties Ltd.. However, it is clear that, in practice, a landlord will normally wish to have the benefit from sale of venison. The evidence in the present case was that venison was part of the Estate's revenue in addition to the return from letting of stalking rights. There is no doubt that the deer larder is not in fact regarded as part of the rights enjoyed by tenants at Lochearnside. However, the question is whether it would necessarily fall within a hypothetical lease of shootings for the purposes of section 6 (8) of the Valuation and Rating (Scotland) Act 1956. We did not hear explicit submission on this point. We are not persuaded that it would.
We have found it unnecessary to attempt further analysis. It may be added, however, that in the circumstances of the present case we consider that, having accepted that there is a deer forest at Lochearnside, there could be no basis upon which the deer larder could be considered as a potential pertinent of "shootings" if it could not also be regarded as a pertinent of the deer forest.
As we have discussed above we are satisfied that the larder can be regarded as a part or pertinent of the forest in the traditional or conveyancing sense of that expression. Mr Haddow did not address substantive submission to any wider use of "pertinent" in this connection. Under reference to Lothian Leisure Ltd., Mr Doherty addressed the question of whether the term "pertinent" could be used in a wider sense in context of valuation for rating than would be justified in a strict conveyancing sense. He relied on a test of necessity.
We can find no justification for the term being given any wider meaning in this present context than it would have in the conveyancing sense in which we have used it above. In the Lothian Leisure case, Lord Clyde was expressly to that effect: 357K-l. It appears that Lord Coulsfield also favoured that approach although he left the matter open under reference to dicta in the Independent Television Authority case: 360I- L. Lord Prosser accepted the possibility of a wider approach in a rating context. "In addition to what are normally called pertinents which are carried by a disposition of named or described subjects without being mentioned it may well be that the word can also be used to describe rights which are less inherently part of the subjects and have been acquired as identifiably separate adjuncts thereto": 359D-E.
Section 151 makes no direct reference to "pertinents" and in a strict sense the question of the particular meaning to be given to the word does not arise. There are contexts in which the word "pertinent" or "pertaining" may be used with a wider meaning than the strict conveyancing one. However, in relation to deer forests there is neither explicit reference to pertinents nor anything to suggest an extended meaning. There is, for example, nothing equivalent to the express provisions relating to agricultural buildings discussed at Armour 7-53 to 7-58. The context is an exception from the widely inclusive provisions of section 42 of the 1854 Act. We heard nothing to support an intention to exclude all buildings connected with fishings, shootings, and deer forests. Accordingly, although each case will no doubt turn on its own circumstances, we would be slow to accept that buildings which were not physically part of a deer forest in the sense discussed above, would fall within section 151 simply because of a strong connection with the sporting activity carried on within such forest.
In the event, however, we allow the present appeal. The deer larder at Lochearnside should not appear on the roll.